JOINT MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
AND THE
ASSEMBLY COMMITTEE ON EDUCATION
Seventy-First Session
May 9, 2001
The Committee on Judiciarywas called to order at 4:01 p.m. on Wednesday, May 9, 2001. Chairman Bernie Anderson presided in Room 1214 of the Legislative Building, Carson City, Nevada, and by videoconference to Room 4406 of the Grant Sawyer Office Building, Las Vegas, Nevada. The Committee on Education was called order at 4:02 p.m. 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.
JUDICIARY COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. Mark Manendo, Vice Chairman
Mrs. Sharron Angle
Mr. Greg Brower
Mr. John Carpenter
Mr. Jerry Claborn
Mr. Tom Collins
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. Dennis Nolan
Mr. John Oceguera
Ms. Genie Ohrenschall
EDUCATION COMMITTEE MEMBERS PRESENT:
Mr. Wendell Williams, Chairman
Ms. Bonnie Parnell, Vice Chairman
Mrs. Sharron Angle
Mrs. Barbara Cegavske
Mrs. Vonne Chowning
Mr. Tom Collins
Mrs. Marcia de Braga
Mr. Don Gustavson
Mrs. Ellen Koivisto
Mr. Mark Manendo
Mrs. Debbie Smith
Ms. Kathy Von Tobel
JUDICIARY COMMITTEE MEMBERS ABSENT:
Ms. Barbara Buckley (Excused)
GUEST LEGISLATORS PRESENT:
Senator Valerie Wiener, Clark County Senatorial District 3
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst - Judiciary
Rene Yeckley, Committee Counsel – Judiciary
Susan Scholley, Committee Policy Analyst – Education
Cindy Clampitt, Committee Secretary
Mary Drake, Committee Secretary
OTHERS PRESENT:
Captain James Nadeau, representing the Nevada Sheriffs’ and Chiefs’ Association, and the Washoe County Sheriff’s Office
Mr. Bob Rudnick, Chief Deputy, Douglas County Sheriff’s Office
Mr. Bob Teuton, Clark County Chief District Attorney
Mr. Scott Cook, Chief Juvenile Probation Officer, Douglas County
Lieutenant Stan Olsen, Las Vegas Metropolitan Police Department and the Nevada Sheriffs’ and Chiefs’ Association
Ms. Barbara Clark, representing the Nevada Parent Teachers Association
Mr. Drew Spangler, representing himself
Chief Tamara Evans, Washoe County School District Police Department
Mr. Andy Anderson, Nevada Conference of Police and Sheriffs
Mr. Phil Gervasi, President, Police Officer Association, Clark County School District
Mr. Elliott Phelps, Chief of Police, Clark County School District
Ms. Annie Rees, rural parent appointee to the Commission on School Safety and Juvenile Violence
Mr. Ron Dreher representing the Peace Officers Research Association of Nevada (PORAN) and a representative of the Professional Peace Officers of Nevada
Ms. Gemma Greene Waldron, Deputy District Attorney, Washoe County
Chairman Anderson called the Assembly Committee on Judiciary to order at 4:01 p.m. Chairman Williams called the Assembly Committee on Education to order at 4:02 p.m. Chairman Anderson made opening remarks regarding the committee rules and explanations of the joint hearing process.
Chairman Anderson opened the hearing on S.B. 339.
Senate Bill 339: Provides for release of education record to certain persons under certain circumstances. (BDR 34-424)
Captain James Nadeau, representing the Nevada Sheriffs’ and Chiefs’ Association, and the Washoe County Sheriff’s Office, introduced Chief Deputy Bob Rudnick, Douglas County Sheriff’s Office, and Clark County Chief District Attorney, Robert Teuton.
Captain Nadeau explained S.B. 339 attempted to clarify issues concerning availability of certain student records during criminal investigations.
Mr. Bob Rudnick, Chief, Deputy, Douglas County Sheriff’s Office, stated the provisions of the bill were critical to law enforcement in its effort to investigate less serious, as well as potentially life-threatening, situations in a timely and expeditious manner. He explained, in the past, access to student records was very limited. The ability to access student directory information would allow more thorough and timely investigations.
Assemblyman Carpenter asked why student records would be of value in investigations. Captain Nadeau replied schools maintained a file called directory information that contained a student’s name, address, and telephone number. That information was confidential unless there was an ability by statute to release the information. He noted the statute under the Federal Educational Rights and Privacy Act (FERPA) addressed the confidentiality of school information. FERPA allowed for the release of school information only if state laws allowed the release of the information.
Captain Nadeau stated in testimony before the Senate, the language of the bill was carefully reviewed to ensure it met the FERPA threshold and requirements. He provided an example that if law enforcement had a sexual assault victim who said, “The name of the person who assaulted me was “Tommy,” and he is in my Government class at “X” high school,” the bill would allow the officers to go to the school and have access to the records on all “Tommys” that might be in the class with the victim. It would expedite the identification of the suspect and the investigation of the crime.
Mr. Rudnick added the information obtained would also include the names of parents or legal guardians, residential locations, and telephone numbers. Chairman Anderson commented the information would likely include whether the student was actually in class that day, and Captain Nadeau agreed.
Assemblywoman Cegavske asked if special education records were protected and noted, if there was any violence issue surrounding a special education student, certain behavioral information might be recorded in the school records.
Mrs. Cegavske also asked if the law enforcement officer would note in the student’s file the date and name of the person who had been given access to that record. She commented, if parents reviewed the child’s file, that would allow them to be aware of law enforcement making a school records check on their children.
Captain Nadeau replied directory information was separate from discipline or special education records. Directory information had very specific information that included the parents’ names, addresses, or telephone numbers. Mrs. Cegavske stated page 2, Section 2, subsection 3, of S.B. 339 specified “education records” and asked if that statement encompassed more than directory information.
Captain Nadeau responded it was his understanding that “education records” related specifically to the directory information. He offered to research the matter further. He suggested perhaps there was a school district representative present that could answer the question.
Chairman Anderson stated no one had signed in who was an attorney for a school district or a school administrator. The Chair made an anecdotal reply that as a teacher, in his experience, there were several different files kept on each student including his permanent record, an academic progress file, a contact file, discipline file, and a counselor file. He noted the discipline file was usually protected and placed in the office of the vice principal.
Mrs. Cegavske noted Section 2, subsection 3, of the bill stated, “A public school shall not release the education records of a pupil to a person, agency, or organization, without the written consent of the parent or legal guardian.” It further stated, “except for a release of educational records without consent to . . . law enforcement.” She stressed that section did not clearly specify the information that could be released, adding that in some schools special education records were maintained separately.
Assemblywoman Parnell opined “education records” only referred to academic records. A disciplinary folder would contain the type of information that might be helpful to law enforcement.
Captain Nadeau referred to Mrs. Cegavske’s second question regarding documentation in the file in the event of the release of information. He referred to page 2, line 28, of the bill that specified upon receipt of information, documentation would be provided that the information would not be released or disclosed except as provided in state law. He suggested that would serve as notice of release of information and would be placed into the school record.
Chairman Anderson asked how the information obtained could be taken into court without the written consent of a parent or guardian. Mr. Bob Teuton, Clark County Chief Deputy District Attorney, responded he did not have specific answers to the question. He noted on page 3, Section 2, subsection 10 of the bill, existing law defined “educational records” as, “Defined in 20 U.S.C. § 1232g(a)(4).”
Mr. Teuton stated his assumption had been that the term “educational records” was not limited to identity of a student or his educational record, but any records maintained by the school on a student. Chairman Anderson noted the question was how broad the sweep of “educational records” was meant to be.
Chairman Anderson quoted 20 U.S.C. § 1232g(a)(4), “. . .Those records, files, and other documents and other materials, which contain information directly related to a student and to, or maintained by, an educational agency or institution, by a person effective for such agency or institution.” He commented that would seem to mean every document on a student including a lunchroom pass. Mr. Teuton concurred.
Mr. Teuton explained S.B. 339 had a two-fold purpose, to assist in identifying suspects and to assist probation officers under Nevada Revised Statutes (NRS) 62. Whenever a juvenile was referred to the juvenile court, the first responsibility of the probation officer was to conduct a preliminary investigation. The preliminary investigation included:
· Social background;
· Educational background; and
· Conduct of the child.
The probation officer would then make a recommendation for disposition to the district attorney and to the court. He added in Clark County that was most often accomplished with written consent by a parent because the majority of cases were referred through an arrest. Mr. Teuton stated when an arrest was made the parents were required to go to the detention facility to retrieve the child. He noted in many cases the investigation could be done through citation or other methods providing the probation officer had the ability to obtain the necessary documents prior to an adult appearance.
Mr. Teuton stated disciplinary records might be pertinent if a student was referred to the court on a charge of battery. The disciplinary file might show a lengthy record of batteries committed or suspensions from school. He stated the record would not have an impact on the punishment, but would allow a probation officer to make a threshold decision as to whether the matter could be handled informally or whether a court must be involved.
Ms. Parnell stated testimony indicated the information request would only be made to obtain a parent’s name and telephone number in some cases. She opined, if an officer went into a school to arrest a student, the school would provide the information without an officer needing a formal request for access to any records of the school, including disciplinary records. She asked if Captain Nadeau agreed. Captain Nadeau replied, if there was an arrest, the suspect would be known to the officers and in custody. The bill addressed those cases where there was an unidentified suspect, and law enforcement was attempting to conduct a more thorough investigation.
Ms. Parnell stated she had witnessed situations where a person went to a school office and claimed someone was threatening him or an altercation had ensued, and the office staff had provided yearbooks for a student identify the person that was involved. She stated she did not understand the need to obtain school records to solve certain situations. She asked if other states had similar language. Mr. Rudnick replied the attempt, from a law enforcement perspective, was to access directory information. He stated during the course of an investigation, only a first name, description, or a certain classroom was known. With the directory information, investigations would be expedited, and that was the intent of S.B. 339. Mr. Rudnick said the need arose in situations such as the Columbine High School incident in Colorado. Very often law enforcement had limited information, and directory information would expedite the identification of those involved in a crime.
Captain Nadeau stated tools such as yearbooks were currently used because they were published documents to which there was legal access; however, the victim frequently was not able to identify a suspect from a picture, especially if they were new to a school.
Assemblywoman Smith said she was uncomfortable with the terminology, “educational records,” in the bill. She stated FERPA specified directory information and allowed it to be available for educational purposes. She added placing another document in a student record created yet another area for concern.
Chairman Anderson referred to the language he had quoted earlier from 20 U.S.C. § 1232g(a)(4), and asked if law enforcement envisioned walking into a school shortly after the school year began and asking for a complete record of all students enrolled. Mr. Rudnick replied in the negative, noting that each case would be investigated individually. Open records for an entire school or school district was a concern; however, the intent of the bill was that it would provide a mechanism to identify suspects as an investigation was begun.
Chairman Anderson stated a school, as a governmental institution, had an obligation to itself. He asked if the bill would change the order of events occurring in a school front office so that requests from law enforcement agencies would take precedence over preparation of report cards or other computer time to generate a student list. Mr. Rudnick stated an investigation would in no way be a part of the grade system at a school
Chairman Anderson clarified the question by asking if the routine of the school would be interrupted to respond to a law enforcement request. Mr. Rudnick replied his agency had a very good working relationship within the Douglas County School District, and it was not the intent of the bill to disrupt a school or demand priority, to gain the needed information. The Chair commented occasionally a parole and probation officer would come to his classroom to speak to a student and, as a teacher, if he were giving a test, he felt that should take precedence. He said sometimes the officers did not want to wait, and he asked if the bill would give law enforcement the right to demand immediate access to a student. Mr. Rudnick stated it would depend on the severity of the criminal offense. A felony situation that might have life-threatening potential versus a case involving a minor offense would be judged accordingly, and common sense would be exercised.
Mr. Teuton concurred stating nothing in the bill would give law enforcement the ”upper hand.” He added most law enforcement officers understood it was easier to work with people through cooperation.
Mr. Teuton stated as a juvenile probation officer, he would be happy to respond to questions regarding the different processes that could be used to allow more citations and fewer arrests of youths.
Mr. Teuton referred to an earlier question about similar laws in other states. He noted he had spent a number of years working on truancy cases. He had visited San Bernardino County, California, where they had court computer systems connected to the school computer systems so that the juvenile judge could have immediate access to academic records of the school.
Mrs. Cegavske asked if access to the “smart files” being developed around the state would be allowed under the bill. She explained “smart files” referred to a new computer system that was being developed to computerize statewide school records to facilitate record keeping when a student moved from one school to another. She stressed Section 2, subsection 3 of the bill needed to be carefully reviewed. She referred to page 3, Section 2, subsection 9, of the bill and asked what liability risk faced the school districts with that subsection and whether it covered volunteers working in school offices. Captain Nadeau replied Section 2, subsection 9, of the bill had been requested by the school districts. Schools had requested some immunity with regard to release of information. He stated he was not sure whether the subsection would cover volunteers or not.
Mr. Teuton opined volunteers working for a school district would be classified as “employees” under the subsection. He noted they were acting at the direction of paid school staff.
Mr. Teuton stated the bill referred to an “investigation” so it was specific to a case or incident. In such cases there had to be a limitation as to how far- reaching information could go. He suggested interagency agreements could be reached so that a variety of agencies were allowed specific access to “smart files” if restricted guidelines were met. He added there would need to be a provision that someone could verify exactly what records had been accessed. The school district would need a way to verify that only a specific record was accessed.
Mr. Teuton acknowledged certain agencies needed to act independently and maintain confidentiality. He gave an example from Clark County where the school district occupied a portion of the building also occupied by Child Protective Services (CPS). When a CPS officer needed access to a school record, he went to the school district employees to have the information accessed. Mr. Teuton noted that type of situation was generally covered in interlocal agreements. In Clark County a proposal had been made that student information should only be accessed in certain circumstances, specifically when a report had been made and the only information requested was the location of the school the student attended. It had not been allowed because the school district used the FERPA ruling to deny access.
Assemblyman Collins asked, if a law enforcement officer in Clark County pulled over a teenage driver, could he go into his car computer and access the school information under the provisions of the bill. He asked if that was the case, who would pay for all the computers that would be needed in the school districts. Mr. Teuton replied the officer on the street could not access school district records and stated, in his opinion, that was not a good idea. He explained under the “smart program,” the Clark County School District was replacing their 20-year-old mainframe computer system with a system of localized, networked computers, and that function was occurring regardless of S.B. 339.
Chairman Anderson noted he had served on an interim committee that had worked on the ongoing educational computer problem. He stated the individual classroom computers that were funded several years ago did not provide absolute access to all student records. Classroom teachers only had access to the information relative to their particular classroom. Other portions that could be viewed by a teacher were student schedules and attendance files for each class. The mainframe computer supported the varied needs of school administration and counselors. The Chair noted discussions about what could be accessed in the various school districts differed according to their hardware and software configurations.
Mr. Collins envisioned that law enforcement would be allowed access to a child’s records during profiling by the officer on the street using their computers. He stated that was currently prohibited and asked if that would still be the case if the bill was passed. Captain Nadeau replied that, from a law enforcement perspective, S.B. 339 would deal with a criminal investigation that fell within the scope of NRS Chapters 62 or 392; therefore, it would not be used arbitrarily during a traffic stop. He explained if law enforcement had an unidentified suspect, but they had information that he was attending a particular school under the provisions of the bill, they could physically go to the school and request information to specifically identify the suspect. He opined, in a broader sense in the distant future, there might be those instances where technology would be developed to the degree testimony had indicated. He stressed that was not something that would happen in the near future and was not the intent of S.B. 339.
Mr. Carpenter stated he was concerned with the fact the bill did not require notification of the parents and guardians before school records were accessed. He asked for confirmation that there was already a means to obtain the records with a court order. He commented if the intent of the bill was to gain speedier access to records, it could be circumvented because schools were only open a few hours each day and not open on weekends. As such, he did not understand how the bill would help in that area. Mr. Rudnick replied, from an investigative standpoint, the current problem was the ability to investigate issues. Law enforcement had accessed records through court orders, but that process was very time-consuming and a cumbersome portion of an investigation. He added that process was acceptable for lesser degrees of crime; however, for those instances that involved a sexual assault, a threat at a school, a threat to one student by another student, or escalation of a situation such as Columbine High School, the ability to access directory information might prevent a crime from occurring and in other instances, bring those people to justice in a timely manner. He added there were some rare instances where parents or guardians could conceivably want the information made available to law enforcement so a problem could be addressed in a timely manner.
Mr. Teuton explained Clark County had processed 1,700 truancy cases in the current school year. Under current law that represented 1,700 written parental consents faxed to a school every two weeks to obtain the attendance record for the prior two weeks.
Chairman Anderson asked if Mr. Teuton was referring to probation officers who were confirming, in a timely fashion, that a student was actually at school or whether a student had a pattern of skipping certain classes.
Assemblywoman Angle asked if, when law enforcement acquired student information, there was a point at which the parent would be told that the information had been requested. She stressed she would be concerned if law enforcement was asking about her child, and she would like to know that had occurred. Mr. Teuton replied nothing in S.B. 339 would require parental notification. He was concerned about using the certification process because that might be inappropriate in certain circumstances. He foresaw no problem of including a requirement of parental notification after the fact in those situations where parental notification was not already obtained.
Chairman Anderson indicated the message from those testifying in support of the bill was mixed. On one hand they were talking about serious crimes, while simultaneously discussing the day-to-day operations of parole and probation and the ways schools functioned. He stressed law enforcement must be respectful of the daily school operations and its purposes.
The Chair stated there needed to be minimal disruption of students in school educational activities so that in the process of finding one student, five hundred would not be disturbed. Mr. Rudnick concurred with the Chair. He added the need for access to the records occurred when there was limited knowledge about the person who committed a crime.
Mr. Rudnick provided committee members with a letter from Roy Casey, Assistant Superintendent for Education Services, Douglas County School District (Exhibit C). He and Tom Susich, Legal Advisor, Douglas County School District, had testified before the Senate committee, but were unable to attend the current hearing.
Mr. Scott Cook, Chief Juvenile Probation Officer, Douglas County, testified in support of S.B. 339. He explained FERPA provided that, in the absence of state legislation, it was the responsibility of each school district to set its own policy regarding access to directory information. Since Nevada had no legislation prior to the bill, each school district had a separate policy.
Mr. Cook stated, as a probation officer conducting investigations, that segment of law enforcement was not interested in all the educational records. The records needed were for attendance, disciplinary actions, and current address and telephone number. He explained, prior to the FERPA regulations, an investigator could call a school and ask what address they had for a student. After the FERPA regulations that information was not available because of certain school districts’ interpretation of the law.
Chairman Anderson noted testimony thus far seemed to reflect the issue as it related to the requirements of Washoe, Clark, and Douglas Counties. He added the Nevada Associations of Sheriffs and Chiefs had sponsored the bill, and he asked if it was a statewide problem or a localized issue. Mr. Cook replied he understood that Douglas and Clark Counties had the worst problems. Douglas County chose to interpret the FERPA regulations in a restrictive manner because of the potential liability.
Lieutenant Stan Olsen, Las Vegas Metropolitan Police Department and the Nevada Sheriffs’ and Chiefs’ Association stood in support of S.B. 339.
Ms. Barbara Clark, representing the Nevada Parent Teachers Association (PTA), testified in opposition to the bill as written. She explained she had attended a two-day course providing details of the FERPA regulations. She stated directory information consisted only of the basics of student name, address, telephone number, and a picture. “Education records” were defined as any written material at a school site. It could be notes a teacher took during a parent/teacher conference, counselor notes, or staff notes.
Ms. Clark stated the PTA was concerned that teachers and staff at a school were not trained to take appropriate notes. The notes might be very subjective in nature. She provided a few examples from her family.
Ms. Clark stated school discipline records were very subjective. She noted there was a “three strikes you’re out” rule, and a “no-tolerance” fighting rule. She stated she had personally witnessed an instance in middle school where a vice principal scanned the educational record for a student in his office and verbally noted the child had a record of being in trouble after finding in the record one instance of fighting in the third grade. She commented parents were the children’s advocates and needed to be the ones making a decision regarding the child’s school records. If the educational record was opened up for viewing, it could result in a child not being allowed to make mistakes. She urged the committee to carefully research whether the intent of the legislation was to obtain educational records or directory information because it would have a dramatic effect on children and on their parents going into the school and having frank conversations.
Chairman Anderson asked if Ms. Clark had appeared at the Senate hearing on S.B. 339, and she replied she had been unable to attend. The Chair asked if there had been any PTA representation at the Senate hearing, and she replied that there was not.
Chairman Anderson noted the original bill appeared to have been much more sweeping than was the amended version.
Mrs. Angle asked, if the bill was to be amended further to include safeguards restricting access to specific information, would the PTA assist in drafting language that might be valuable for law enforcement but not injurious to a child. She also desired clarification on when a parent should be notified of outside access to their child’s record. Ms. Clark stated the PTA would have no objection to access of directory information. The term “educational records” was so broad that trying to limit access to just portions of that record would be difficult. She stressed disciplinary records were very subjective as well. She offered to help with drafting of S.B. 339 language.
Chairman Anderson stated if the bill was processed, the committee staff would contact Ms. Denise Quon of the Department of Education, whom Ms. Clark had identified as the “resident guru” on the FERPA regulations. He opined attendance records should also be included in the records that could be accessed. He noted, by law, any record of a criminal nature was already mandated to be disclosed.
Mrs. Cegavske asked for clarification that the consent of a parent was currently necessary before accessing a child’s school records and if that was what the bill was attempting to address. The Chair replied it depended upon the individual school district and the nature of the investigation. He added, in many cases, school police at the site were the first point of contact. He stated, of the 150 students he had in class each semester, from 10 to 20 had regular visits with probation officers. The officers had a tendency to arrive for a school check at the same time, on the same day, and in the same class because they knew a student was more likely to attend a particular class. Washoe County procedure was for the probation officer to go to the front office, and the student was called out of class for the visit.
Mrs. Cegavske restated her question. If law enforcement currently wanted to obtain a record at a school, what steps had to be taken? She asked if there was a specific form to request information. The Chair responded a front office administrator would have to answer that question.
Mrs. Cegavske asked, if there was an incident such as the one at Columbine High School, would the police have a right to obtain records after such an incident occurred. Chairman Anderson stated that each school had a set of emergency procedures including a monthly fire drill. He added one of the procedures was that the teacher was required to take his grade book with him when leaving a classroom. The fire marshal used the grade book to ensure that all students were out of the classroom by requesting that attendance be retaken at the evacuation site. The class roster included a contact telephone number for a parent. As a result of Columbine and other tragic events there were additional emergency plans to take students to different types of locations as needed. Students could not be released for lunch or a job when an emergency existed. Chairman Anderson added, the central records of a student were kept in a fire-proof safe.
Mrs. Cegavske stated her questions were directed to a comparison between current practice, the proposed legislation, and whether law enforcement could obtain records without additional provisions after an incident had occurred.
Chairman Anderson asked staff to contact Ms. Quon to determine exactly what was necessary to work with the FERPA regulations. Mrs. Cegavske commented the “smart program” would be the easiest for law enforcement officers to obtain information, and it contained the least amount of personal information. The Chair noted his impression from the testimony had been that law enforcement wanted more information than would be available in the “smart program.”
Ms. Parnell requested two questions for staff to ask Ms. Quon. She sought clarification of whether other states had exercised the right to have state statute override or interrupt the FERPA requirements. She also requested research on the constitutionality of state law overriding the FERPA regulations.
Mr. Collins noted in earlier testimony that law enforcement also wanted information from the schools if a child had been involved in “other batteries.” The Chair commented that research would be done as to what a minimum level of state provision that would be required.
Mr. Collins commented between the Committees on Education and Judiciary in the past couple of legislative sessions, law had been enacted that, if there was a battery on school property, it must be reported. He did not understand why law enforcement wanted additional records. The Chair noted many school employees felt that not all batteries were reported.
The Chair called for testimony from Mr. Kirby Burgess, Clark County Youth Services, in Las Vegas, who had signed in support of S.B. 339. The Chair was informed that Mr. Burgess had left the room, and his planned testimony had already been covered.
Mr. Drew Spangler, representing himself, testified from Las Vegas, stating that S.B. 339 was an invasion of the privacy of parents and students. He asked what prompted the need for such information. He asked if law enforcement wanted to find out whether a child or his parent had a criminal record. Mr. Spangler opined the bill presented a “Catch 22” situation.
Seeing no one else present to testify on the bill, Chairman Anderson closed the hearing on S.B. 339 and turned the hearing over to the Chairman of the Committee on Education.
Chairman Williams opened the hearing on S.B. 291.
Senate Bill 291: Makes various changes concerning reporting and investigation of certain violent or sexual offenses committed on school property, on school buses or at school activities. (BDR 34-199)
Chairman Williams stated the bill had been brought to the committee on behalf of the Commission on School Safety and Juvenile Violence. He recognized Senator Valerie Wiener.
Senator Valerie Wiener, Clark County Senatorial District 3, testified in her capacity as Chairman of the Legislative Commission on School Safety and Juvenile Violence.
Senator Wiener noted the commission had sponsored three separate bills. She stated the first was S.C.R. 13 which had contained “urging and encouraging” language. It focused on intervention and prevention measures that included schools, communities, nonprofit organizations, law enforcement, and all other components of school/child/community programs.
The other bill had been S.B. 289 that dealt with issues of school safety plans. She added the safety plan was required under A.B. 686 of the Seventieth Session.
The final of the three bills was S.B. 291 that required administrators of public schools and private schools, in Sections 6 and 14 of the bill respectively, who knew or had reasonable cause to believe a violent sexual crime had been committed on school property, school buses, or at school activities, to report those crimes to a law enforcement agency. The crimes that were required to be reported were delineated in Section 4, subsections 1 through 19 of S.B. 291. The reports were required to provide certain information, and the bill provided immunity from civil and criminal liability for persons who reported such offenses in good faith.
S.B. 291 also provided for procedures of handling such a report if the victim of such an offense was a child, the offense constituted child abuse, or if the victim was a person over the age of 60 and the offense constituted elder abuse.
Senator Wiener stated one proposed amendment had been given to her from the Washoe County School District representatives. She provided her written testimony with conceptual language for the amendment (Exhibit D). The recommended amendment would be to Section 6, subsection 1, on page 3, line 4. The current language stated, “does not have a school police officer,” and the recommendation was to change that language to “was not served by a police officer.” The same replacement request was made at page 3, line 17. She stated whichever language was selected, she hoped it would be the one to best serve those students, faculty, and parents where reporting would be required. She noted the basic need was for reporting requirements to be processed expeditiously.
Senator Wiener testified while schools were still the safest places for children to be, that perception was not always true for the children. She noted since 1997, fear among high school-age students about being on school campus had increased 25 percent. She stressed that fear could actually create violence.
Because violence did occur, it was imperative that effective measures be implemented in terms of response to situations. She stated as lawmakers, the legislators must take steps to reassure children, their families, and citizens of the state that the children’s safety was valued, no matter where they were.
Chief of Police, Tamara Evans, Washoe County School District Police Department, testified for the need of one minor amendment to S.B. 291. She noted the language change as stated by Senator Wiener had been proposed because in Washoe County police officers were not assigned to every school. They were sometimes assigned to more than one school at the same time.
Chief Evans provided her written testimony (Exhibit E) and added a request for clarification in the school districts that had a police department, specifically that the department be notified first in the event of violent or sexual offenses. In school districts without police officers, the requirement would be to report to local law enforcement.
Mr. Andy Anderson, Nevada Conference of Police and Sheriffs (COPS), stated they were similarly concerned. He commented the school police departments should handle the types of complaints addressed by the bill. Mr. Anderson stated if the school district had a police department they should be contacted first; otherwise the local law enforcement with jurisdiction should be contacted.
Chairman Williams asked what happened if a school district with a police department could not serve every school and an incident happened at a school where there was no police presence. He asked if the sponsors would still prefer the school police to be notified first. Mr. Anderson replied Clark County had 241 schools, and there were not that many officers. Officers were assigned to patrol multiple schools, so if an incident occurred one of those officers would probably respond. The Chair asked if that was still preferred if a local jurisdiction law enforcement officer was closer. Mr. Anderson stated that was possible, and, if it was an emergency, “911” should be called to get the fastest assistance possible to stabilize the situation. He added if it was actually a crime that was normally handled by the Clark County School District Police, the complaint would be passed on to them.
Chairman Williams asked if there had been instances of conflicts where it was felt the school police should have been contacted first, and that had not been done. Chief Evans replied that had occurred only a few times.
Assemblywoman Angle stated her district included a high school, and the school officers had been the first to respond to an incident there; however, they did not carry weapons and she asked if, in a case such as that, would it be appropriate for the school to contact local jurisdiction law enforcement as well. Chief Evans replied several different new procedures were being developed. One was an area-wide 800-megahertz system connecting all law enforcement entities in the area. That would allow immediate and simultaneous notification of all law enforcement entities. Chief Evans noted while campus officers were not armed, investigative and supervisor positions were armed. The proper procedure for officers to follow would be to contact both local law enforcement and an investigator or supervisor position who was armed to respond.
Chairman Anderson stated not all police agencies had full criminal Peace Officer Standards and Training (POST) powers. He asked for confirmation that school districts were not looking for authority to carry out criminal investigations of sexual assaults or murders. Chief Evans replied in certain situations such as a homicide, the local or federal police agency would be contacted to assist. She noted there were two situations currently having federal assistance in their investigations. She added S.B. 291 mentioned certain crimes such battery or robbery and stated school officers did conduct those investigations.
Mr. Phil Gervasi, President, Police Officer Association, Clark County School District, testified in support of the amendments requested by Senator Wiener and Chief Evans.
Mr. Gervasi stated Clark County employed approximately 150 officers. Typically two officers were assigned to every high school, one at most middle schools, and the remaining officers were assigned patrol duties in multiple locations. He stated patrol officers were assigned a grouping of schools and remained in a specified vicinity. Any emergency call was typically routed through a local jurisdiction because of “911.” If a school officer responded to a serious incident, such as a murder or a sexual assault, and did not have the necessary resources, local jurisdictions were called in.
Mr. Gervasi stated S.B. 291 listed some crimes that might not necessarily fit the definition of a robbery. He explained a child might push another child and take away his quarter to buy ice cream. He stated technically, by criminal law, that incident would be a robbery, and he indicated school police officers could investigate the incident.
Mr. Gervasi stated other examples that might not fit the assumed definitions could be battery with intent to commit a crime or coercion. He explained the bill viewed perpetrators of the crimes as adults, but children made mistakes and imitated what they saw. He stated there were other means of disciplining a child other than arresting him under those kinds of circumstances.
Assemblyman Manendo referred to Mr. Gervasi’s testimony where he stated the school police would call in the local jurisdiction in certain situations. He asked what happened in the other types of situations. Mr. Gervasi stated the school police department had officers that were qualified to investigate all the cases; however, they did not have forensic capabilities. Those other specialized units at the local jurisdiction level were very valuable and would be accessed as necessary. He stated the school police in Clark County had never been the sole jurisdiction in a school homicide. School officers determined if sexual assault calls were legitimate, and, if so, the specialized forces were dispatched.
Mr. Manendo asked specifically what happened if a local jurisdiction was not called in to assist. Mr. Gervasi replied sometimes a student would make a statement that they had intercourse with a certain person. They were immediately taken to the hospital for a “rape kit” examination and, at that time, it would be determined if the student was telling the truth, especially if there was no evidence of sexual penetration. The school district would handle that situation; however, in other cases, a local jurisdiction would be called.
Senator Wiener commented S.B. 291, page 3, line 10, addressed the requirement for school administrators who suspected a sexual or violent offense to report the incident within a specific timeline. It did not require the police to respond. It would then be at the discretion of local law enforcement whether to respond to the school.
Mr. Elliott Phelps, Chief of Police, Clark County School District, testified in opposition to S.B. 291 primarily because of the unintended confusion created by the bill. He explained people seemed to be unsure whether school police were or were not included in the initial call for assistance from a school.
Chief Phelps stated the proposed amendments might help to clarify the confusion, but S.B. 291, A.B. 220, and A.B. 319 all addressed school police and school violence issues. That created a tremendous amount of confusion.
In a quest to improve upon school safety, a serious amount of confusion had been created that should be referred to a long-term study, according to Chief Phelps. He added the funding and jurisdictional relationships between school administrators and local agencies were issues that needed to be codified. He noted if all three bills passed, he would have no concept of what direction to provide to his officers.
Ms. Annie Rees, rural parent appointee to the Commission on School Safety and Juvenile Violence, testified the commission was strongly concerned that all parties in school safety issues worked closely together to keep a safe environment for children. Fifteen counties in Nevada had no school police, and she stated clear definitions had to be included for those counties.
Ms. Rees stated she had personally been involved in situations in her county (Douglas County) where incidents that, in her judgment, really constituted coercion, intimidation, or threats of battery to one of her children, were “brushed off” by school administrators. When she spoke with a local law enforcement agency, they suggested she might need to file charges on her own. She stated the bill would serve to put schools on-notice that when serious issues arose, they must be addressed. She added the bill would clarify for school administrators what was required to be reported.
Mr. Ron Dreher, representing the Peace Officers Research Association of Nevada (PORAN) and a representative of the Professional Peace Officers of Nevada, testified the situation had to be clarified to require school administrators to report alleged sexual and violent crimes. As such, PORAN was on record in support of S.B. 291. He noted such reports should be made to the school police in the counties where that was an option.
Mr. Dreher referred to NRS 280 which stated if a student went to the office and stole a pencil from the office secretary, if the secretary grabbed the student and said “Return that pencil,” and the student jerked away from the secretary and fled, it would be considered a robbery under NRS 200.380. He asked if that was a situation the committee wanted referred to a local law enforcement jurisdiction level if there were school police available. He added if the school did not have a school police officer under the bill, the administrator must report to a local law enforcement jurisdiction. He noted law enforcement should not have to handle that type of situation.
An opposite example was that of a battery consisting of the unlawful striking of one individual by another. If a student hit another student in a fight on the playground, and if the student who was struck fell and hit his head and subsequently died a week later, that incident constituted murder under NRS 200.010. He commented school administrators should report to the school police who were trained as Category II POST level officers.
Mr. Dreher stated PORAN supported the concept that school administrators should have to report a crime to the school police officers and, if it was a crime in progress, whoever got the “911” call should respond. He noted school police were typically closest to the location for response.
Mr. Dreher asked that the committees consider an interim study because there were several bills, including S.B. 86 and A.B. 220, which dealt with serious questions of whether school police were needed. He commented currently the cross-jurisdictions worked well together most of the time. He added, under Section 6, line 12, of S.B. 291, a school administrator must report an incident within 24 hours of having become aware of it. He opined that period was too long. He stated even one hour was a long time to wait under certain circumstances. He added 24 hours was a long time in serious situations because evidence could be destroyed.
Chairman Anderson asked if Mr. Dreher would prefer language that stated, “as soon as practicable” or for the bill to have no specific timeline. He said on the surface that would seem to be a better term than “immediately,” but it could also be detrimental in avoiding the reality that a crime had taken place. Mr. Dreher stated the word “immediacy” would be a good choice. He stated police in general would rather receive a call and respond to investigate rather than wait 24 or 48 hours to investigate a scene.
Chairman Anderson asked if Mr. Dreher would prefer language that stated, “reasonable time but not more than 24 hours.” Mr. Dreher stated if a timeframe was required in the bill, it should at least state, “no later than 24 hours.” He commented as soon as an administrator became aware of a situation, a simple phone call to the appropriate jurisdiction could mean the difference in locating the suspects. Chairman Williams stated the committee would ask the Legislative Counsel Bureau Legal staff to look closely at that issue.
Assemblywoman Angle stated her question dealt with the difference between reporting an incident and charging someone with the crime. Mrs. Angle explained at one point she had been a substitute teacher, and a student had “socked” her in the eye. She reported the incident, and the officer who responded asked if she wanted to file charges or whether the incident should be dropped. Charges must be filed for the report to go into official records. She asked if the bill would clarify that kind of situation or whether it would have no effect at all. Mr. Dreher stated, based on the scenario Mrs. Angle described, unless the incident occurred in the presence of an officer, it would have been up to her, as a citizen, whether she wanted to file misdemeanor charges within a one-year period.
Mrs. Angle replied that helped to clarify, but noted the officer would not be in a classroom when a crime was committed. She noted if a citizen did not understand they had to make a formal charge, the report would have no effect. Mr. Dreher replied under S.B. 291 and another bill that had been heard earlier in the day, the schools and police departments had a protocol to follow in explaining options to victims of a crime. He explained the crimes listed in S.B. 291 were more serious and needed to be reported to school police and the local jurisdiction. He noted a “hit” would be a misdemeanor, but if the same person fell over and substantial injury occurred, the case would be a felony.
Mr. Carpenter stated the issue of proper nomenclature for timelines had been discussed previously in the Assembly Committee on Judiciary, and the determination had been that the language of, “without undue delay,” would be proper.
Assemblywoman Koivisto stated she opposed the section of the bill that required a sexual or violent crime to first be reported to an administrator before it could be reported to police authorities. She asked why the administration was required to be a “middle man.” Chairman Anderson replied that if a teacher believed a child had been harmed in any way, an immediate response was required. As such, it was conceivable that not only would the teacher respond, but other school officials including the administrator, the bus driver or the janitor might receive notification.
Mr. Dreher stated Section 6 of S.B. 291 simply said if a public school did not have a school police officer, the administrator was the person charged with reporting the crime. Technically, it would be expected that the teacher or other school personnel would be expected to call “911” immediately and not worry about a report to the administrator before the call was made.
Assemblywoman Von Tobel stated her concern went to the logistics of the bill. In a Clark County classroom, teachers had a button on the wall to push that connected to the administration office to summon immediate assistance. She commented her classroom had no telephone.
Ms. Von Tobel recalled when she was substitute teaching in a mentally-challenged class, she had to call administrators three times to break up fights. She asked what effect the bill would have on current practices. Mr. Dreher stated that regardless of the bill, current school protocol would constitute the “first response.” He added the bill only required that, if an administrator was aware of a sexual or violent situation, it must be reported. He explained the intent of S.B. 291 was to cover incidents like a situation that had occurred in Clark County that had been discussed in other committees. The intent was to not allow a school administrator to tell a police officer that they could not report a crime.
Chairman Williams asked the Senator if the commission had discussed circumstances such as those that had been raised during current testimony. Senator Wiener commented some of the issues had been brought forward. She explained the bill had evolved and was drafted differently than the current version was written. She explained the commission was focused on the safety of the school environment and ensuring administrators would contact law enforcement for the sake of the children.
Senator Wiener stated the commission struggled over the definition of two areas that were currently in S.B. 291. Those definitions were for the terms, “crisis” and “violence.” The concerns were that, because a violent situation could not be defined, sexual and violent crimes had been specified. She added those terms had been defined in the 1999 legislature. The intent was to provide administrators with a guideline of when to report crimes.
Senator Wiener stated there were provisions for what teachers were required to do on page 3, line 20, of the bill, which provided the board of trustees could establish procedures for the additional reporting by other employees.
Chairman Williams asked for confirmation that the overall objective was to develop some type of safety on school campuses. He asked for those who had concerns with the bill to discuss them with Senator Wiener in the very near future. He commented that not all classrooms in Clark County had panic buttons or telephones. He urged the committee members to not lose sight of the overall objective of the bill – the overall safety on school campuses.
Chairman Williams requested members of law enforcement, school administrators, and those in the community with concerns regarding S.B. 291 to bring those concerns to the Senator.
Senator Wiener referred to an earlier question regarding the timeline for reporting and noted page 3, line 11 of the bill stated, “as soon as reasonably practicable, no later than 24 hours.” She explained 24 hours was an “outside” timeline figure.
Chairman Anderson stated the testimony seemed to have met Assemblyman Carpenter’s concerns regarding timelines.
Mr. Carpenter commented perhaps the intent of the bill was alright, but there was confusion surrounding S.B. 291. He stated if the bill was supposed to make school administrators report a crime, he opined the bill did not do that. The bill needed to be simplified. Senator Wiener replied the school safety plan was actually contained in S.B. 289. The intent of S.B. 291 was for the administrators in all school districts to report specific crimes. She noted the ultimate goal was to act in the best interests of the children.
Assemblywoman McClain, referring to page 3, Section 7, subsection 2, of the bill remarked the language appeared to refer to a person who was not required to make a report, but made one anyway. She noted the bill stated those persons were immune from liability for the responsibility to report a crime, but they were not immune from civil or criminal liability of the actual act. She asked if that section limited prosecutors further into the process from making plea bargains and from determining how a crime would be charged. Senator Wiener responded that, if a good-faith report was made, the immunity protection was provided, but if that person was an “actor” in the crime, then they would not be immune.
Ms. Gemma Greene Waldron, Deputy District Attorney, Washoe County, stated the bill would not tie prosecutors’ hands in any way. She stated the Reese-Iverson Act of the 1999 Legislative Session and the language in S.B. 291 would cover the person who actually had knowledge of a situation, made a report, and was still an actor in the crime.
Lieutenant Stan Olsen was unable to attend the hearing on S.B. 291, but submitted written testimony (Exhibit F) in support of the concept of the bill.
Chairman Williams closed the hearing on S.B. 291.
Chairman Anderson stated he appreciated the opportunity to meet jointly with the Assembly Committee on Education.
Chairman Williams adjourned the meeting at 6:23 p.m.
Cindy Clampitt
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE:
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Assemblyman Wendell Williams, Chairman
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