MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
March 23, 2001
The Committee on Judiciarywas called to order at 8:11 a.m., on Friday, March 23, 2001. Chairman Bernie Anderson presided in Room 3138 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. Bernie Anderson, Chairman
Mr. Mark Manendo, Vice Chairman
Mrs. Sharron Angle
Mr. Greg Brower
Ms. Barbara Buckley
Mr. John Carpenter
Mr. Jerry Claborn
Mr. Tom Collins
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. Dennis Nolan
COMMITTEE MEMBERS ABSENT:
Mr. John Oceguera (Excused)
Ms. Genie Ohrenschall (Excused)
GUEST LEGISLATORS PRESENT:
Assemblyman David Parks
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Rebekah Langhoff, Committee Secretary
OTHERS PRESENT:
Jim Holmes, Legislative Representative, Northern Nevada DUI Task Force, Reno, Nevada
Laurel Stadler, Chapter Director, Mothers Against Drunk Driving, Lyon County Chapter
Gemma Waldron, Legislative Representative, Nevada District Attorney’s Association and Washoe County District Attorney’s Office, Reno, Nevada
Sandy Heverly, Executive Director, STOP DUI, Las Vegas, Nevada
John C. Morrow, Chief Deputy, Washoe County Public Defender, Reno, Nevada
James Jackson, Legislative Representative, Nevada Attorneys for Criminal Justice, Las Vegas, Nevada
Gary Booker, Chief Deputy District Attorney, Vehicular Crime Unit, Clark County District Attorney, Las Vegas, Nevada
Andy Cray, Municipal Court Judge, Sparks, Nevada
Judy Jacoboni, Victim Advocate, Mothers Against Drunk Driving, Lyon County Chapter
Adrienne Cox, Assistant Director, Clark County Family and Youth Services, Las Vegas, Nevada
Dean Pierce, Vice President, State of Nevada, Board of Examiners for Social Workers, Reno, Nevada
Rosalind Tuana, Executive Director, State of Nevada, Board of Examiners for Social Workers, Reno, Nevada
Michael Capello, Director, Washoe County, Department of Social Services, Reno, Nevada
Bob Gagnier, Legislative Representative, State of Nevada Employees Association, Carson City, Nevada
Mary Ann DeWicke, Representative, Nevada Service Employees Union
Stephen A. Shaw, Administrator, State of Nevada, Department of Human Resources, Division of Child and Family Services, Carson City, Nevada
May Shelton, Legislative Representative, Washoe County, Nevada
Roll was called and Chairman Anderson opened the hearing on A.B. 315.
Assembly Bill 315: Increases penalties for first or second offense of driving under influence of intoxicating liquor when concentration of alcohol in blood or breath of offender is 0.18 or more. (BDR 43-587)
Assemblyman David Parks, Assembly District 41, primary sponsor of the bill, spoke to the committee about the problem of being excessively intoxicated. Mr. Parks indicated he served on the Clark County Grand Jury for 13 months and heard testimony regarding auto accidents resulting in loss of life or severe injury caused by drivers with unbelievably high blood alcohol concentrations (BAC) and numerous previous citations for driving under the influence (DUI). Mr. Parks indicated he came to the conclusion that these drivers had been driving under the influence for a very long time and their luck finally ran out. In order to address the issue, Mr. Parks proposed A.B. 315 which would increase the penalty for persons guilty of driving under the influence of intoxicating liquor when the blood alcohol concentration was .18 or higher. Mr. Parks reviewed the significant provisions of the bill with the committee (Exhibit C).
Mr. Carpenter felt a person who was intoxicated to such extremes, should absolutely go to treatment. Mr. Parks indicated the bill left the matter of treatment to the discretion of the sentencing judge, although he agreed with Mr. Carpenter.
Chairman Anderson asked whether A.B. 315 only increased the penalties for second time offenders. Mr. Parks noted the bill could severely impact an individual who never previously committed a DUI offense, however, he noted that with a BAC of .18 or higher that individual had to have consumed a great number of drinks in a relatively short period of time.
Mr. Collins wondered whether a person sentenced under A.B. 315 could be allowed to serve his sentence on a weekend so he did not lose his job. Mr. Parks indicated the bill only required a certain period of time to be served and however the judge chose to impose the penalty was fine with him. He also indicated he was open to some form of alternative sentencing that might include community service. Mr. Parks believed the issue A.B. 315 addressed was that a person who had a BAC of .18 or higher should know better than to drive a car.
Jim Holmes, Legislative Representative, Northern Nevada DUI Task Force, stated he was in support of A.B. 315, including the treatment provisions.
Laurel Stadler, Chapter Director, Mothers Against Drunk Driving, Lyon County Chapter, supported A.B. 315 and felt it was appropriate to impose additional jail time on DUI offenders with a high BAC, but she suggested it might be more appropriate to mandate treatment for high BAC offenders. She indicated MADD was in support of mandating treatment for any offender who was evaluated and determined to be in need of treatment.
Gemma Waldron, Legislative Representative, Nevada District Attorney’s Association and Washoe County District Attorney’s Office, indicated support for A.B. 315 in concept. She noted her experience that a very high BAC was always taken into consideration at the time of sentencing regardless of whether it was a first, second or third DUI offense. Ms. Waldron stated offenders often elected to go into treatment and she wanted the committee to be aware that when an offender elected to go into a long-term treatment program their sentence was cut in half under current law. Ms. Waldron wondered whether that would still be the case under A.B. 315. Ms. Waldron pointed out that offenders were allowed under current law to choose between community service or jail time, and jail time could be served on weekends. She believed courts would object to being told what the minimum sentence must be for excessive BAC offenses, and felt courts already considered a high BAC and a child in the car as aggravated circumstances. Ms. Waldron concluded by asserting that a person who did have a high BAC should go into treatment and should receive a harsher penalty than someone who had a lower BAC.
Mr. Carpenter wonder if serving time through house arrest would be an option under the bill. Ms. Waldron stated house arrest was allowed and generally doubled the length of the sentence.
Ms. Lang, Committee Counsel, advised the committee that pursuant to Sections 6 and 7 of the bill, an offender would not be allowed to apply to the court to have their sentence reduced for undergoing treatment, however, under Section 3 the court was allowed to order an offender to treatment. Ms. Lang noted there currently was a minimum penalty required and A.B. 315 simply increased that penalty.
Sandy Heverly, Executive Director, STOP DUI, indicated her support for A.B. 315 and thanked Mr. Parks for introducing the legislation. Ms. Heverly’s only concern was that a BAC of .18 was too late to recognize the problem, which Ms. Heverly felt was why there were 195 DUI offenders in the serious offender program. Ms. Heverly stated at a BAC of .10 there was a 300 percent chance of being involved in an alcohol-related crash and for that reason Ms. Heverly believed that early significant intervention was necessary. Ms. Heverly suggested the bill be applicable to the BAC standard in Nevada and questioned why DUI offenders received so many chances to kill and injure.
John C. Morrow, Chief Deputy, Washoe County Public Defender, stated there was no rationale basis for opposing an increased penalty for people with a BAC of .18 or higher. However, Mr. Morrow indicated his surprise that there was no fiscal note or the mention of an unfunded mandate attached to the bill because the increased jail time mandated by the bill would have a significant impact on the jail populations in all counties. Mr. Morrow felt the fiscal impact of the bill should be addressed but was not a reason to not pass the bill.
Chairman Anderson indicated there was a fiscal note attached to the bill with an indication by Carson City of a $1 million plus potential and an undetermined amount by Washoe County. Chairman Anderson asked Mr. Parks whether he had reviewed the fiscal note. Mr. Parks had not had an opportunity to review the fiscal note and indicated he would follow up on the matter.
James Jackson, Legislative Representative, Nevada Attorneys for Criminal Justice, indicated a neutral position on A.B. 315, however, he expressed concern over costs as a result of increased penalties.
Chairman Anderson closed the hearing on A.B. 315 and turned his attention to the following Bill Draft Requests (BDRs) which required committee introduction:
ASSEMBLYMAN CARPENTER MOVED FOR INTRODUCTION OF BDRS 7-502 AND BDR 14-1438.
ASSEMBLYMAN MANENDO SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT.
Chairman Anderson opened the hearing on A.B. 316.
Assembly Bill 316: Provides that once person has been convicted of felony for operating vehicle or vessel while under influence of alcohol or controlled substance any subsequent violation is treated as felony. (BDR 43-143)
Assemblyman Mark Manendo, Assembly District 18, primary sponsor of the bill, briefly reviewed A.B. 316 and turned the presentation over to Gary Booker.
Gary Booker, Chief Deputy District Attorney, Vehicular Crime Unit, Clark County District Attorney, indicated his office had about 24 to 36 defendants who had driving under the influence (DUI) felonies either in the same jurisdiction or in different jurisdictions. Mr. Booker explained current law only allowed an offender to be charged with a misdemeanor when seven years had passed between DUI convictions. Accordingly, a defendant could commit any number of DUIs, and, depending on the timing, one DUI may be a felony and the next two may be misdemeanors. Mr. Booker explained A.B. 316 would ensure that when a person who previously committed a felony DUI was pulled over for another DUI, regardless of how much time had passed between DUI offenses, that person would be charged with a felony DUI.
Mr. Booker noted the only way to get a DUI felony in Clark County was to have three prior DUI convictions within seven years or to harm or kill someone while driving under the influence. Mr. Booker saw people come to Clark County from other jurisdictions who had previously been convicted of a felony DUI involving a death. He indicated those people served their time, came to Clark County, got a new DUI and Clark County could only charge those people with a misdemeanor. Mr. Booker indicated A.B. 316 would ensure that once a person was convicted of a felony DUI, that person would always be treated as DUI felon. He thought it was ludicrous to keep charging people with DUI misdemeanors when they had multiple DUIs only because of the happenstance of timing.
Chairman Anderson asked, if a person was arrested for the first time for a DUI misdemeanor and was arrested again ten years later, would the second arrest be a first time misdemeanor DUI. Mr. Booker stated the second arrest would still be a misdemeanor under the bill because it was beyond the seven year time period. Chairman Anderson clarified that the bill did not propose to change the tolling of time, but proposed that once a person was convicted for a felony DUI all future DUI convictions would be felonies. Mr. Booker added that if the first conviction was a felony DUI and the person was arrested ten years later, the second arrest would be for felony DUI even though ten years had passed.
Andy Cray, Municipal Court Judge, Sparks, Nevada, told the committee he had been a judge for over 20 years and dealt directly with DUIs for the past 18 years. Judge Cray saw an individual who had just been released from prison not long before he appeared in court for a DUI. The prior DUI offenses committed by this individual had fallen off while the man was in prison and the maximum penalty the judge could give him was six months. Judge Cray noted this situation happened frequently. He stated he routinely saw people who had numerous DUIs and most of them had excessive blood alcohol concentrations (BAC), well over .18. Judge Cray indicated he did not see as many people as he used to with BACs in the .11 or .12 range with no previous convictions and he felt this was due to media attention and education against drinking and driving. Judge Cray told the committee he heard three DUI cases in one day last week and every defendant had a BAC of over .20. One individual had a BAC of .39 and appeared in court with a BAC of .18. Judge Cray felt treatment was far more effective than custody but custody was the only way to keep the streets safe. He believed DUI repeat offenders had waltzed through loopholes for many years and he felt it was time for the “dance” to come to an end.
Judge Cray stated the majority of people that came before him for DUI offenses had prior offenses. Occasionally, Judge Cray saw an individual in his 40s with a first-time DUI but he believed the embarrassment, financial impact and programs were effective for such a defendant. Far more often Judge Cray dealt with offenders who had repeated DUIs and, only because the offender went to prison for a felony DUI, when the offender finally got out and committed his next DUI offense, sometimes within a month of being released from prison, the offender could only be charged with a misdemeanor. Judge Cray reiterated his belief that treatment was very important and his philosophy was to bend over backwards to allow people to attend treatment but when the programs were not followed, he would lock them up for as long as he could.
Mr. Carpenter inquired whether a DUI offender could serve their sentence under house arrest. Judge Cray indicated he was one of the first judges in the area to use the house-arrest program, and he explained the house-arrest program most commonly used required the offender to blow into a breath device attached to a television screen when they got up in the morning, before and after they went to work and before they went to bed at night. Judge Cray used house arrest for non-violent, first time cases with a minimum sentence of 30 days, but he considered DUI cases violent. He noted defendants paid about $10 per day for house arrest.
Jim Holmes, Legislative Representative, Northern Nevada DUI Task Force, reminded the committee only a few months ago a man with 13 prior DUIs killed a person and he noted another case in which a man with 11 prior DUIs also killed a person. Accordingly, Mr. Holmes urged the committee to give A.B. 316 its serious consideration. He felt it was ludicrous for a person to commit three DUIs, spend time in prison, get out of prison for DUI offenses, and subsequently be charged with a misdemeanor DUI because the first DUI had been committed over seven years ago.
Chairman Anderson noted A.B. 316 addressed only the felony question.
Judy Jacoboni, Victim Advocate, Mothers Against Drunk Driving, Lyon County Chapter, stated MADD supported A.B. 316 and felt the bill addressed the problem of the repeat DUI offender very well. She hoped the committee would also consider making the bill applicable to a person who committed a felony DUI as their first offense.
Chairman Anderson indicated the bill would apply to any felony DUI offense regardless of whether it was first, second or third offense.
Gemma Waldron, Legislative Representative, Nevada District Attorney’s Association and Washoe County District Attorney’s Office, indicated support for A.B. 316.
Sandy Heverly, Executive Director, STOP DUI, noted STOP DUI concurred and supported the testimony given by Mr. Booker and Judge Cray, and thanked Mr. Manendo for bringing forward the much-needed legislation.
Mr. Manendo asked Mr. Booker whether A.B. 316 would have had an effect on the highly publicized Clark Morse case if A.B. 316 had been in effect at the time Mr. Morris committed his earlier DUI offenses. Mr. Morse killed Lela Sue Jay, the sister of Megabucks winner Cynthia Jay-Brennan, who was herself left a quadriplegic as a result of the alcohol-related accident, although Mr. Morris had three prior DUI convictions. Mr. Booker felt Mr. Morris would have been in prison for 2 to 15 years at the time the last offense was committed if this bill had been law.
John Morrow, Chief Deputy, Washoe County Public Defender, indicated his concern related to statute of limitation issues similar to those in A.B. 54, which revised provisions relating to the time within which prosecution for certain felonies must be commenced and certain provisions concerning genetic marker testing. Mr. Morrow felt a scenario was possible in which A.B. 316 would work an injustice on a person who fell under the felony statutes at a very young age and went 20, or even 40, years before committing another DUI. Under this bill, that person would go to prison for 2 to 15 years for a simple DUI. Mr. Morrow felt it was appropriate to limit the automatic felony provisions of the bill to some period of time, perhaps 10 or 12 years.
Chairman Anderson closed the hearing on A.B. 316 and brought the bill back to committee.
Mr. Carpenter indicated his support for the bill and responded to the situation brought up by Mr. Morrow by noting the first offense committed would have to have been a felony.
Chairman Anderson could imagine a situation in which a kid in college could cause bodily harm in a DUI accident, which would make the offense a felony DUI, and then not commit another offense for some length of time.
Ms. Buckley agreed that such a situation could occur but she felt that when a person committed a felony DUI, even as a kid, such an experience should be a wake-up call and that offender should never drink and drive again. Ms. Buckley stated that perhaps it was time to send such a message and Chairman Anderson indicated he did not disagree.
Mr. Collins felt the issue was a 10- or 12-year limit, making the bill apply to consistent offenders, versus a statute that ran in perpetuity.
Chairman Anderson indicated he would entertain a motion of do pass on A.B. 316.
ASSEMBLYMAN GUSTAVSON MOVED DO PASS ON A.B 316.
ASSEMBLYWOMAN ANGLE SECONDED THE MOTION.
Mr. Carpenter stated he would vote for A.B. 316, but indicated he sometimes had a problem with “playing God.” However, he felt a message needed to be sent although he did not feel the bill would affect the people who needed it most for a long time.
Mr. Manendo pointed out there was not yet a fiscal note, but the bill would go to Ways and Means for a thorough examination of the cost.
THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT. MR. CLABORN AND MR. BROWER WERE NOT PRESENT FOR THE VOTE.
Chairman Anderson turned to the scheduled work session and A.B. 343.
Assembly Bill 343: Provides for integration of state and local child welfare services. (BDR 11-325)
Nick Anthony, Committee Policy Analyst, presented the committee with a work session document, which provided a brief synopsis of the discussion and testimony on A.B. 343 (Exhibit D). Mr. Anthony reminded the committee A.B. 343 came forward on behalf of the Interim Study on the Integration of State and Local Child Welfare Systems and was heard in committee on March 14, 2001. Possible amendments were submitted, and pages 3 through 13 of Exhibit D were a compilation of all amendments.
Chairman Anderson noted a shortage of the work session document for those in attendance and requested additional copies to be made.
Chairman Anderson asked Ms. Buckley to go through the amendments with the committee.
Ms. Buckley suggested the committee go through the compilation of amendments section by section. Ms. Buckley began with Section 66, which she stated was a technical change only and met with no objection (Exhibit D, page 3).
Ms. Buckley turned to Section 68, which clarified that licensure provisions did not apply to homes in which people were voluntarily caring for children related to them and who were not within the custody of an agency (Exhibit D, page 4). The change to Section 68 met with no opposition.
Ms. Buckley discussed Section 69, which related to the financial aspects of the transfer of services to the county and reflected the changes to Section 81 (Exhibit D, page 4). Section 69 eliminated the reference to an account in the county general fund and instead referenced the money distributed from the state to the agency which provided child welfare services pursuant to Nevada Revised Statutes (NRS) 432.040. The change was proposed to provide the county flexibility in the manner in which it decided to set up an accounting of the money distributed by the state. Ms. Buckley stated the parties had been working out the technical details of the bill and there was consensus between the parties on this issue.
Ms. Buckley continued by discussing Section 81, which set up guidelines for a funding formula to be established by the Division of Child and Family Services (DCFS) in consultation with the agencies (Exhibit D, pages 5 and 6). The new subsection as proposed required these agencies to enter into agreements with DCFS and to cooperate to maximize the amount of federal funding that may be available. A second change to Section 81 clarified that an agency which provided child welfare services in Clark or Washoe counties must account separately for the money distributed to the agency pursuant to the funding formula. Ms. Buckley stated these issues had again been worked out in a consensus manner between the state and the counties and were not an area of particular concern.
Ms. Buckley moved to Section 82, which amended NRS 432.050, which established the state child welfare services account into which the money appropriated by the legislature for special services and maintenance to children was deposited. Ms. Buckley noted there were two amendments proposed (Exhibit D, page 6). Under current law, NRS 432.040 provided the non-federal share of expenses for special services and maintenance to children must be paid from the money provided to the DCFS by direct legislative appropriation. As amended under Section 81, the DCFS would adopt regulations creating a funding formula for the distribution of federal and non-federal money. The second change amended the reference to Section 88 to refer to Section 81, the funding formula. Ms. Buckley stated the bottom line was to ensure future funding formulas encouraged innovativeness and the opportunity to match federal funds. Ms. Buckley believed the section was agreeable to all.
Ms. Buckley discussed the change to Section 85, which was consistent with the prior financial amendments proposed to allow the counties flexibility, addressed the money provided by parents to cover the costs of maintenance and special services provided to a child, proposed to eliminate the requirement that the money be deposited in a fund or account established in the county treasury and proposed to allow the fund or account to be established by the board of county commissioners (Exhibit D, pages 6 and 7). Ms. Buckley stated these changes were again consistent with the other amendments regarding the finances of the bill.
Ms. Buckley addressed the change in Section 86, which was consistent with the prior financial amendment proposed to allow the counties flexibility with regard to the treasury (Exhibit D, pages 7 and 8).
Ms. Buckley continued by discussing Section 130, which she felt was one of the more difficult amendments, because it addressed the social work licensing and grandfathering provisions for employees of the agencies (Exhibit D, page 9). The first change, proposed by the Board of Examiners for Social Workers, sought to limit the provisions to the new employees of the two agencies. The second change requested the date changed under subsection 4 be removed. Ms. Buckley stated the Board of Examiners for Social Workers indicated in the hearing on A.B. 343 this provision protected pre-licensure employees in public agencies in certain positions and noted this provision was not relevant to the current proposed grandfathering provision.
Ms. Buckley suggested it would be most beneficial in order to clearly understand the policy choices the committee was faced with to have the Board of Examiners for Social Workers and Clark or Washoe County come forward with regard to this issue. Ms. Buckley noted the current portion of the meeting was a work session and new testimony was not to be taken, however, she believed it would be helpful if the different parties would tell the committee what their concern was regarding the proposed amendment.
Adrienne Cox, Assistant Director, Clark County Family and Youth Services, advised the committee Clark County concurred that state social workers would come to the county work force as licensed social workers. Ms. Cox indicated the county’s interest was to allow the county discretion in the future to determine whether existing child protective services, child haven and child development staff should be grandfathered in as licensed social workers. She stated the county was not prepared to make such a decision at this time and merely wanted to preserve that option.
Chairman Anderson asked whether the county intended to hire licensed social workers in the future to fill positions which might be vacated. Ms. Cox stated it was the county’s intention that the social workers transferring over from the state would transfer as social workers. Ms. Cox stated the county would hire social workers to replace the social workers that would leave through attrition, but the determination had not been made as to the child protective services staff as to whether they would be social workers or not.
Dean Pierce, Vice President, State of Nevada, Board of Examiners for Social Workers, indicated the board became involved with the bill when the discussion arose as to whether or not, for consistency, workers throughout the new system should be social workers. In the spirit of protecting all workers and treating them fairly, the board agreed to allow licensing for a limited period and for limited licensing (Exhibit D, pages 19 and 20). However, Mr. Pierce stated that the language in this bill must be specific to those workers that would be covered by the bill and accordingly the board provided amendment language to ensure a limitation of the applicable provisions to the workers to be covered by this bill and a time limit. Mr. Pierce stated the first change was fine because it limited the bill to only those workers covered by the bill. The second change, which was proposed to set a time limit, should be changed back to the original date of 1988.
Mr. Pierce indicated a related issue was dealt with in Section 136, which set forth the date on which Section 130 of the bill would expire. Mr. Pierce noted the controversy surrounded those employees who provided child protective services and he indicated it was initially proposed that everybody delivering child welfare services would be social workers. Mr. Pierce suggested, in order to ensure consistency for services, not just the integration of county and state programs, limited grandfathering be used. Mr. Pierce felt the larger issue to be resolved was what the workers would be called and when they would be called whatever was decided. Mr. Pierce stated the controversy that remained in child protective services was whether they would be classified as social workers and whether they would be doing social work.
Ms. Buckley felt the committee had two choices. She noted the bill would provide that anyone who came over from the state would remain a licensed social worker and anyone who replaced him or her would be a licensed social worker. Ms. Buckley stated the question to be decided dealt only with the investigative staff, those who provided child protective services. Ms. Buckley felt that if the county wanted to make those people licensed social workers by grandfathering-in existing staff, the committee could work with the board to clearly reflect that or, the discussion could be held over until next session and not even addressed in the bill. Ms. Buckley asked the county its preference.
Ms. Cox indicated her preference was to write the language so the grandfathering option could be exercised in the future.
Ms. Buckley clarified the new language in the new Section B, Exhibit D at page 9, clearly limited the scope to the county so the Board of Examiners for Social Workers was satisfied as well as the county. Ms. Buckley asked if the amended language in Section 130, with the exception of the date, was agreeable to all parties now that it had been tightened.
Rosalind Tuana, Executive Director, State of Nevada, Board of Examiners for Social Workers, reiterated that if child protective services investigators were doing social work they must be licensed according to current law.
Ms. Buckley confirmed that Section 130 in its present form was agreeable to all parties.
Ms. Buckley continued by discussing the amendments to Section 134 of the bill (Exhibit D, pages 10-12). Ms. Buckley advised the proposed new subsection C of Section 1 was suggested by the State of Nevada Employees Association (SNEA) and stated that state employees whose positions were abolished would be eligible for reemployment rights upon passage and approval.
Ms. Cox indicated the county wished clarification as to whether the reemployment rights were to return to state employ. Ms. Buckley indicated the reemployment rights were state reemployment rights. Ms. Buckley pointed out the subsection was a new benefit to state employees not previously discussed, but Ms. Buckley felt the provision was reasonable.
Chairman Anderson questioned whether the amendment needed to be clarified to reflect the reemployment rights were state rights, and Ms. Buckley felt that the amendment did need to be clarified. Chairman Anderson presumed that reemployment rights would protect an employee from losing eligibility, holidays, position on a salary scale, etc. Robert Gagnier was asked to clarify.
Robert Gagnier, Executive Director, State of Nevada Employees Association, advised that reemployment rights referred to reemployment regulations which currently existed for state employees (Exhibit E). He indicated the language in A.B. 343 was similar to language contained in S.B. 37 of the Seventieth Session regarding the privatization of the state industrial insurance system. Mr. Gagnier explained that when the bill passed the employees identified to be transferred would be eligible to place their name on the reemployment list within state government and transfer into other jobs as other jobs opened. Mr. Gagnier stated that without this provision a large group of people would be put on the reemployment list all at once, making it very difficult to find other employment.
Ms. Buckley continued with the changes to Section 134, at subsection 3 proposed by the Division of Child and Family Services (DCFS). Ms. Buckley observed the first change clarified that state employees must be made offers of employment by the counties in a comparable position. The second change required the counties to follow any local ordinances governing the acceptance of transfer of employees of an agency whose functions the county agency absorbed. Ms. Buckley stated Washoe County currently had an ordinance but Clark County did not.
Michael Capello, Director, Washoe County, Department of Social Services, told the committee it was the county’s intent to transfer employees from DCFS into comparable positions. Mr. Capello asked whether the provision would limit the county in the future should the department need to reorganize or reclassify positions. Mr. Capello indicated the county wished to retain flexibility should the needs of the community change and he was concerned that subsection 3 as currently proposed would limit the county’s future ability to make those kinds of changes.
Mr. Capello took the opportunity to comment on subsection 4, which dealt with the ordinance provision. Mr. Capello advised Washoe County currently had an ordinance setting general parameters for how functions absorbed by counties and employees transferring to the counties were treated. Mr. Capello stated the ordinance functioned in conjunction with negotiations with the Washoe County Employees Association and he was concerned there was an assumption that the ordinance clarified every issue that might relate to a transition. Mr. Capello indicated the county administration believed it could successfully negotiate a transition with the union that would recognize both state and county seniority for purposes of annual leave, sick leave accrual, and participation in the county’s longevity program, but the county did not anticipate success in its negotiations regarding state seniority for purposes of layoff and recall. Additionally, the county had a program for post-retiree health that was terminated for employees hired after September 17, 1997, and the county did not believe the Washoe County Employees Association would find it acceptable for state employees hired prior to that date and transferring to the county to participate in that benefit.
Ms. Buckley noted the first proposed change only required an offer of employment in a comparable position and wondered, after an employee transferred over as a licensed social worker, and the county’s needs changed, if the county could not adapt for that change in consultation with the union that represented those employees. Mr. Capello agreed with Ms. Buckley but for clarification he wanted to ensure the intent was not to limit the county’s ability in the future.
Ms. Buckley asked whether Mr. Capello was in agreement if the clarification was made. Mr. Capello was in agreement.
Ms. Buckley inquired whether the ordinance provision alone would be good enough because the local ordinance referenced the collective bargaining agreement. Mr. Capello indicated the county would like some reference to the ordinance and the collective bargaining process. He felt the issue was later in the bill where the amendments would supercede any collective bargaining agreement around certain issues. Mr. Capello’s preference was to allow the county to utilize its ordinance and its collective bargaining process to reach the issues.
Ms. Buckley asked whether the Washoe County ordinance referenced its collective bargaining agreement. Mr. Capello did not know, and stated his understanding that the issue was the ordinance had several discretionary “mays” in it and no absolutes.
Mr. Collins stated he had been involved in companies that merged and it was his experience that each employee’s seniority was combined into one list of seniority and benefits which were applicable to all employees based on the best policies from the two different companies. Mr. Collins asked if that was what the county and state was doing. Mr. Capello indicated the situation Mr. Collins described was not exactly what the state and county was doing. Mr. Capello stated the administration had agreed to advocate for the recognition of seniority in sick leave, annual leave, and longevity for purposes of participating in the longevity program, however, for purposes of layoff and recall the county did not believe it could successfully negotiate with the union for longevity purposes. Mr. Capello noted the only remaining issue was the benefit package that was no longer in place, which some employees received because they were hired prior to 1997.
Ms. Buckley clarified the two policy choices the committee needed to make. She felt the first issue, the comparable position issue, was agreeable to the counties with the clarification offered. The second issue was whether the committee wanted to add a collective bargaining agreement, which Washoe County would prefer although it was probably not necessary.
Ms. Buckley continued with an explanation of the changes to Section 134 at subsection 4. The proposed change eliminated language that provided an employee who transferred his entire balance of sick leave to the county might not receive payment for the leave time. The change also eliminated the language that provided state employees the option of cashing out their sick time. In place of the stricken language was a proposal to require that the state employee must be allowed to accrue sick leave at a rate based on his years of state service and county service combined. The new language also provided that upon separation the employee must be paid for all accumulated sick leave in the same manner as other county employees. Ms. Buckley explained that state employees who left could get their accrued vacation time, but state law only allowed a certain amount of sick leave to be taken. The changes would provide some flexibility to allow employees to transfer over or cash out some sick time. Ms. Buckley noted the counties were not opposed to transferring sick leave as long as they were paid for it, however, the state did not have money to pay for the sick leave because the employees were not entitled to it under state law.
Ms. Buckley felt it might not be possible to make all parties happy and suggested a combination of options be offered. Ms. Buckley proposed that an employee could opt for a payout up to the maximum under the law and could also transfer sick leave to the county. The choice would be left to the employee based on individual circumstances. Again, Ms. Buckley felt the county would be agreeable as long as it did not incur the cost of paying out for the state’s sick leave when the employee terminated. Ms. Buckley suggested the bill could be passed on to Ways and Means using that approach and, if there was money available, perhaps the bill could be amended and a one-time appropriation could be made to the counties to cover an additional payout. Ms. Buckley felt a difficult choice had to be made and this option was the fairest recommendation that could be made.
Bob Gagnier, Legislative Representative, State of Nevada Employees Association, believed the compromise suggested by Ms. Buckley was possible. He stated the current method of paying state employees for sick leave when they retired or terminated in good standing paid for considerably less than what had been accrued because of flat dollar caps. Mr. Gagnier felt the bill as written gave employees a poor choice regarding sick leave and a combination of the two choices would be eminently fair if it could be successfully written.
Chairman Anderson clarified the section to be rewritten was Section 134, subsection 4 (Exhibit D, page 10). Ms. Buckley confirmed Chairman Anderson’s understanding and indicated an option program should be drafted in terms of what was already available under the law and the ability to transfer sick leave, or some combination of both.
Mr. Collins wanted to ensure employees were provided with the best situation regarding seniority, benefits, etc. when the transfer took place. He noted actuary people projected the cost of sick leave and accordingly the cost of sick leave could be calculated in order to determine what the state should pay the county as part of the sick leave package. Mr. Collins felt combining the two options without all employees being afforded the same rights and benefits would create a division among the employees. He believed when all was said and done every employee should have the same seniority, rights, benefits, working conditions, etc.
Chairman Anderson felt the goal Mr. Collins was trying to reach was commendable, but it was Chairman Anderson’s experience that perfect equity in these situations rarely existed.
Ms. Buckley stated existing law provided what an employee could “cash out” for sick leave when an employee separated from employment based on a staggered system for time on the job. She indicated the amendments were attempting to provide the employees who were forced to leave the state and join the county for the benefit of Nevada’s children with a better deal. She stated the committee could not rewrite existing law, but could try to make ending bifurcation fair for employees.
Chairman Anderson confirmed the language of Section 134, subsection 4, would be redrafted. Mr. Gagnier indicated he did not have amended language prepared, but would prepare the language based on the issues discussed. Ms. Cox reminded the parties Clark County’s position was that any change to the language should not result in increased costs to Clark County.
Ms. Buckley discussed two changes to Section 134, subsection 6 (Exhibit D, page 11). The first change required that state employees continue to be classified as social workers and the second change required that all future employees hired to fill these positions also be social workers. Ms. Buckley indicated the changes addressed the concerns that employees might not be brought over as licensed social workers or the position might change once a person was hired.
Ms. Cox clarified on behalf of Clark County that the changes to Section 134, subsection 6 were not withstanding any reorganization of the child welfare services based upon client needs or new business needs of the department. Mr. Capello also reiterated his concern regarding Washoe County having the ability to reorganize in the future.
Ms. Buckley indicated the language was still acceptable in light of the clarifications by Ms. Cox and Mr. Capello because it covered the concept discussed and agreed upon.
Chairman Anderson took a short break from the work session for the purpose of a Bill Draft Request (BDR), which required committee introduction:
ASSEMBLYMAN NOLAN MOVED FOR INTRODUCTION OF BDR 39-1479.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT. MR. BROWER AND MR. GUSTAVSON WERE NOT PRESENT FOR THE VOTE.
Ms. Buckley continued with a discussion of the amendments to Section 134, subsection 8 of A.B. 343, which she believed would be the hardest part of the bill (Exhibit D, page 11). This section contained three proposals relating to salary upon transfer. The first proposal amended subsection 8(a) to change the retirement scale, the second proposal eliminated subsection 8(a) and provided that salary must be based upon the same rate as the employee of the county, and the third proposal eliminated subsection 8(a) and required state employees to be placed on a county salary range. The change to subsection 8(b) proposed that increases in salary based on longevity be based on both the employee’s years of service with the county and the state.
Ms. Buckley indicated the state employees felt that when they were transferred to the county they should not have to work alongside someone with less experience who was being paid more. She stated the problem was, if the committee attempted to rectify the state’s failure to pay state employees what state employees should have been paid for the past ten years, the price tag would make it impossible to end bifurcation, increase payments to foster care parents, increase treatment dollars for emotionally disturbed children, or lower case loads. Ms. Buckley stated this was not fair, but she did not believe the money had been allocated by the Governor to correct the state’s failure to adequately pay its employees. Ms. Buckley recommended the committee recognize that it could not correct this failure and acknowledged that, pursuant to projections, state workers would be making $7,000 more at the county than if they would have stayed with the state. Additionally, Ms. Buckley noted the county’s longevity pay was very generous compared to the state’s and in the long run state employees who transferred to the county would make much more money being employed by the counties than the state. As to retirement, Ms. Buckley indicated the issue had been taken care of by the Public Employees Retirement System (PERS).
Chairman Anderson sought clarification by asking whether an employee working for the state and transferred to the county, would receive a salary increase when he transferred to the county. Ms. Buckley pointed to the salary charts prepared for the interim study on this issue and noted some workers would immediately receive a pay increase for various reasons (Exhibit F).
Chairman Anderson asked whether a state employee would be better off to start in the county system from scratch rather than lag behind and be treated differently than regular county employees because of the transfer from the state. Ms. Cox indicated social workers who transferred from the state to Clark County would be moved into the pay range for social workers that currently existed in Clark County, which was significantly higher than the state pay range. Ms. Cox noted state employees would not lose any money and stood to gain substantially in their future employment with Clark County. Mr. Capello indicated state employees transferring to Washoe County would be put on the exact same pay scale currently used by Washoe County for its employees and in approximately five years state employees would reach parody with county employees. He noted state employees with salaries within the county range would transfer over at the same salary. Chairman Anderson confirmed with both Mr. Capello and Ms. Cox that state employees would reach parody with county employees in approximately five years.
Ms. Buckley noted that when state employees transferred to the counties they would be represented by collective bargaining agreements and unions.
Chairman Anderson confirmed the changes to subsection 6 would be kept, including the sentence at the end of line 9 and the words “and continued” at line 8. Additionally, the change at lines 31 and 32 of subsection 8(a) as proposed by Clark County and the additional sentence proposed by DCFS at line 49 of subsection 9 were accepted (Exhibit D, pages 11 and 12).
Ms. Buckley proceeded to the new subsection 11 in Section 134, proposed by SNEA which provided state employees with the same layoff rights as other county employees based on an employee’s combined state and county service (Exhibit D, page 13). Ms. Buckley felt the addition was fair, however, she noted both county employee unions strongly opposed the provision.
Mary Ann DeWicke, Representative, Nevada Service Employees Union, proposed that state employees transferring over as foster care social workers be allowed to carry in their seniority which would count for purposes of layoff. Ms. DeWicke felt that because current child protective service workers were not required to become social workers, they would not be displaced by the state employees in the event of a layoff.
Chairman Anderson asked how the rights of the different classes of employees transferring from the state to the county would be differentiated. Ms. DeWicke indicated that was a difficult issue for the union, which was trying to be mindful of the needs and concerns of the state employees while at the same time recognizing the rights of the current county employees under the current collective bargaining agreement. She reiterated the union’s proposal to create a separate unit of state employee who would be classified as social workers with a foster care distinction.
Ms. Buckley asked whether Ms. DeWicke would be amenable to language which would allow the counties to consider seniority for purposes of noneconomic benefits. Ms. DeWicke felt there would have to be further discussion and reiterated the concern that county employees might be displaced by state employees.
Mr. Gagnier indicated the problem being discussed was a very serious one because it would have an effect on whether career state employees chose to transfer to the county and whether the county would get the benefit of those employees’ expertise. Good employees might not transfer to the county because if there was a funding problem in the future those employees could be laid off and the 20 years they worked for the state would be totally meaningless.
Ms. Buckley asked whether it helped the employees to know that DCFS still had to regulate and that the work they performed must still be performed by a licensed social worker. Ms. Buckley’s point was that if the county experienced a financial crunch, it could not lay off the social workers because the county received money from the state and had the statutory responsibility to represent the children.
Stephen Shaw, Administrator, State of Nevada, Department of Human Resources, Division of Child and Family Services, responded to Ms. Buckley’s comment by stating social workers were only a part of the employees transferring to the county. He stated that in order for the transfer of employees to work there had to be equity on this issue and not allow a county employee with 6 months experience to “bump” a state employee with 24 years of experience. Mr. Shaw told the committee the state had given up a lot in this process but it did not want to give up the rights of the state employees. He also stated for the record that the Governor did not have the choice to make an allowance in the budget for increased salaries. Mr. Shaw indicated the Governor simply took the recommendation of the A.C.R. 53 study regarding what this transfer would cost and budgeted for that amount.
Ms. Buckley summarized the issue by indicating the counties felt bound by their unions and collective bargaining agreements to ensure that county employees came first, while the state’s position was that statutory protection regarding layoff of state employees should be provided.
Mr. Carpenter wondered whether the state employees transferring to the county would become part of the county bargaining unit, which could then obtain equity for the state workers in its negotiations with the county.
Mr. Collins questioned the benefit of combining the two agencies if it would cause a whole new set of problems in the future. He believed that if it was not possible to incorporate state workers and county workers into one agency and end up with equal pay and benefits for all employees, the committee would simply be creating another problem for someone else.
Chairman Anderson felt the reality of combining two agencies was that it could not be completed in a manner which would satisfy everyone.
Ms. Buckley asked the committee members not to forget the kids that needed these services. She suggested the committee include in the bill that the state employees’ years with the state counted for purposes of layoff and noted the counties and the unions could take the time between this hearing and the hearing in Ways and Means to inform the committee why such a proposal would not work.
Chairman Anderson confirmed Ms. Buckley’s suggestion to accept the proposed subsection 11 at Section 134 for purposes of layoff rights only (Exhibit D, page 13).
Mr. Carpenter noted the discussion was focused on layoffs that might occur due to budget shortfalls but, he felt that with all the problems and children requiring services, more employees would be needed and the matter as discussed would probably never be an issue. For that reason, Mr. Carpenter indicated he would hate to see this issue get in the way of passing A.B. 343.
Mr. Claborn indicated he had many years of experience dealing with issues similar to the ones the committee was discussing. He told the committee that if all employees were not put under the same bargaining agreement, bigger problems than the issues the committee was dealing with would be created.
Chairman Anderson turned the committee’s attention to the changes in Section 135 and 136 (Exhibit D, page 13). He noted the changes moved the population requirement from 400,000 to 100,000, which did not represent a problem. Additionally, he noted the date change in Section 136 was acceptable.
Ms. Buckley agreed with Chairman Anderson and noted the best part about the effort to move the bill forward was that it was consensus based and everyone was trying to work for the best interests of children. She hoped that would continue.
Chairman Anderson noted the committee had worked its way through all of the amendments to the bill, which left only the amendment to the preamble for discussion.
May Shelton, Legislative Representative, Washoe County, advised that the changes to the preamble were just a matter of “wordsmithing,” together with a few corrections and additions (Exhibit D, pages 23-24). She indicated all parties were in agreement with the changes.
Chairman Anderson confirmed there were no objections to the preamble of the bill.
ASSEMBLYWOMAN BUCKLEY MOVED AMEND AND REREFER A.B. 343 WITH THE AMENDMENTS AS REVIEWED.
ASSEMBLYWOMAN KOIVISTO SECONDED THE MOTION.
Chairman Anderson confirmed the Sections to be amended were Section 66, Section 67, Section 69, Section 81, Section 82, Section 86, Section 88, Section 131, Section 134, with new language still to be drafted for subsection 4(a), the addition of subsection 8(a) proposed by Clark County, the alternative language proposed by DCFS, new subsection 11 proposed by SNEA, Section 135, Section 136 and the preamble.
THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT WITH ASSEMBLYMAN COLLINS ABSTAINING. MR. BROWER WAS NOT PRESENT FOR THE VOTE.
Mr. Collins abstained from the vote and reserved his right to cast his vote on the floor rather than in committee.
Chairman Anderson adjourned the meeting at 10:41 a.m.
RESPECTFULLY SUBMITTED:
Rebekah Langhoff
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: