MINUTES OF THE
SENATE Committee on Government Affairs
Seventy-First Session
May 9, 2001
The Senate Committee on Government Affairswas called to order by Chairman Ann O'Connell, at 2:09 p.m., on Wednesday, May 9, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Ann O'Connell, Chairman
Senator William J. Raggio, Vice Chairman
Senator William R. O’Donnell
Senator Jon C. Porter
Senator Joseph M. Neal, Jr.
Senator Dina Titus
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Assemblywoman Vivian L. Freeman, Washoe County Assembly District No. 24
Assemblyman Robert (Bob) E. Price, Clark County Assembly District No. 17
Assemblywoman Christine R. Giunchigliani, Clark County Assembly District No. 9
Assemblyman Bob Beers, Clark County Assembly District No. 4
Assemblyman Douglas (Doug) A. Bache, Clark County Assembly District No. 11
STAFF MEMBERS PRESENT:
Kimberly Marsh Guinasso, Committee Counsel
Juliann K. Jenson, Committee Policy Analyst
Laura Hale, Committee Secretary
OTHERS PRESENT:
Martha B. Gould, Concerned Citizen
Michael Robinson, Concerned Citizen
Kent F. Lauer, Lobbyist, Nevada Press Association
Gary Wolff, Lobbyist, Nevada Highway Patrol Association
Kathy Naumann, Lobbyist, Teamsters Local 14
Gary Schmidt, Concerned Citizen
Mike Tracy, Concerned Citizen
Daniel C. Musgrove, Lobbyist, City of Las Vegas
Madelyn Shipman, Lobbyist, Washoe County District Health Department
William E. Isaeff, Lobbyist, City of Sparks, and Nevada League of Cities and Municipalities
Douglas G. Smith, Lobbyist, Citizens for a Scenic Reno
Janine Hansen, Lobbyist, Nevada Eagle Forum
Harvard (Larry) Lomax, Registrar of Voters, Clark County
Lucille Lusk, Lobbyist, Nevada Concerned Citizens
Janet Gilbert, Lobbyist, Progressive Leadership Alliance
Susan Morandi, Deputy Secretary for Elections, Office of the Secretary of State
Alan Glover, Clerk/Recorder, Carson City
Janelle L. Kraft, Lobbyist, City of Las Vegas
Robert A. Ostrovsky, Lobbyist, City of Las Vegas
Colleen A. Wilson-Pappa, Lobbyist, Clark County
Irene E. Porter, Lobbyist, Nevada Home Builders Association
Jeanette K. Belz, Lobbyist, Associated General Contractors, Northern Nevada
Chairman O’Connell opened the hearing on Assembly Bill (A.B.) 225.
ASSEMBLY BILL 225: Makes various changes to provisions regarding meetings of public bodies. (BDR 19-82)
Assemblywoman Vivian L. Freeman, Washoe County Assembly District No. 24, explained she had requested the bill in November 1999 to clarify the open meeting law and that two cases, one each from northern and southern Nevada, had ended up in the state Supreme Court. She expressed particular concerns with the City of Reno where serial meetings occurred, and noted the first part of the bill was added at the request of Assemblyman John C. Carpenter, Elko (part) County Assembly District No. 33.
Assemblywoman Freeman said she was stunned by the response of local governments, and the bill was amended to remove elements of concern regarding sanctions, fiscal impacts, and decisions made by nonprofit organizations. Reading from the bill, Assemblywoman Freeman explained it would create an additional notice requirement under the open meeting law before a public body could consider taking administrative action against a person, or acquiring real property through eminent domain. Specifically, she said, personal notification would be required 5 working days prior to a meeting, or notice by certified mail would be required 21 working days before the meeting, and the public body would have to receive proof of service before it could take action. This would be effective October 1, 2001, she said.
Assemblywoman Freeman provided copies of written comments (Exhibit C) from the Assembly Daily Journal on this bill. She noted there had been controversy in the newspapers regarding a fiscal note on the bill, although she was not aware of a request for additional staff from the Office of the Attorney General until the bill had already passed through the Assembly. She asserted addition of a fiscal note at this point would be completely unacceptable, but in discussion with staff from the Office of the Attorney General, she agreed to introduce a bill next session to increase funding if the need could be demonstrated. With regard to a note from Senator O’Connell stating the bill was “dead” if there was a fiscal note attached, Assemblywoman Freeman said this was unacceptable to her, but she would do everything to help find funding for the attorney general’s staff, if necessary.
Chairman O’Connell explained she had been asked by a newspaper reporter about the fiscal note on this bill and responded, “we’ve been told we can’t pass on any fiscal notes.” But after reading the bill, she said, she was perplexed by the request for a fiscal note because she thought this was already the job of the attorney general.
Assemblywoman Freeman explained there is a division in the attorney general’s office which provides this service already. The office conducts classes on a regular basis to instruct people on the use of the open meeting law, she said, but she was not sure whether they were anticipating a significant increase in instruction due to the bill.
Senator Neal suggested A.B. 225 was redefining what a meeting is, which would require notification and due process if there was less than a quorum, but with intent to deliberate. Assemblywoman Freeman expressed concerns with the lack of notification for Reno city council meetings and felt they needed clarification on the open meeting law regarding notification and what constitutes a quorum. She termed fallacious, arguments made against the bill claiming public officials would not be able to meet with their constituents, and constituents would not be able to contact multiple representatives, saying she believes they are “scare tactics.” She explained to Senator Neal the bill had originally included a definition of “intent to deliberate,” but she took it out because people felt it was too restrictive. However, she said she would be happy to put it back in. Chairman O’Connell noted her agreement with Assemblywoman Freeman’s concerns, as could be seen, she said, by her introduction of a bill to require Internet posting of agendas and other meeting information.
Senator Care suggested the bill might be similar to a bill he has requested which seeks a majority of a public body, rather than a quorum, to act in the affirmative for a measure to pass. He referenced current opinions by the attorney general which viewed a series of conversations among public officials as not being covered under the open meeting law because no decisions were made and no votes were cast. Senator Care expressed concern the language in A.B. 225 is somewhat vague, and said he found the language on “intent to deliberate” particularly troubling. Concerning litigation, he stated he did not know whether discussions among members of a public body and their attorney could be prohibited. With regard to language under subsection 1, section 1, he said he could understand prohibiting action, but prohibiting “consideration” seems too broad.
Assemblywoman Freeman assured the committee that legal counsel considered the language to be appropriate, and said she herself felt the concerns expressed were scare tactics. She asserted a perfect bill could not be written, and said this was an attempt to restore public trust, “which is very important, given the political climate around the nation and in Nevada.”
Chairman O’Connell reported an agency with a multi-million dollar budget was recently found to have an average meeting time of 10 minutes over a 3-year period, suggesting they do not have an understanding of the open meeting law, because decisions are clearly made in advance of the meetings. In response to comments from Senator O’Donnell, Chairman O’Connell said the Legislature can reasonably review open meeting laws because they always follow the requirements, although they are technically exempt from the requirements.
Martha B. Gould, Concerned Citizen, testified that previously, as head of the library in Washoe County, she was “adamant in letter and spirit” of meeting the requirements of the open meeting law. She said the bottom line is public servants or elected officials have a duty and responsibility to the public trust. With regard to Senator O’Donnell’s comments that the Legislature is exempt, she suggested perhaps it should not be. In response to Senator Neal’s concern that the bill would be restrictive, she said she has no problem with that, and in order to keep public faith, the public has to know what their elected officials are doing. She suggested Assemblywoman Freeman’s bill would help close the loophole of “serial meetings,” which have been a “disgrace” in the City of Reno.
Michael Robinson, Concerned Citizen, provided copies of newspaper columns written by himself and others (Exhibit D) describing apparent violations of the open meeting law and multiple court cases, which he asserted demonstrate the need for clarification in the law. He reiterated concerns expressed in earlier testimony regarding serial meetings by the City of Reno which result in limited discussion at official meetings of the city council. He asserted all staff presentations should be done in open meetings with public notice.
Kent F. Lauer, Lobbyist, Nevada Press Association, testified in support of the bill and claimed not only newspapers support the bill, but it also has overwhelming support among voters. He suggested Nevada’s requirement for a quorum to be present in order for a public body to deliberate or take action has been used to circumvent the open meeting law by small groups of less than a quorum meeting serially. This bill, he said, is aimed at prohibiting this type of activity, which intentionally keeps the public in the dark.
Mr. Lauer emphasized this bill is necessary to ensure the legislative intent that “actions of a public body must be taken openly and that their deliberations must be conducted openly.” He asserted the criticisms against the bill regarding limited access between the members of a public body and their attorney, in the case of a lawsuit, were not true because the bill does allow an attorney to advise members in private, but they cannot privately deliberate or take action on that advice.
Senator Neal asserted, in a city-manager form of government, the manager must talk to council members about city problems to carry out the duties of the job, and this bill would change that form of government and how it operates. Mr. Lauer countered, a city manager could line up votes by getting a majority of city council members to deliberate on something privately, which violates the spirit of the open meeting law. He said this bill would allow the city manager to discuss matters with council members, but could not deliberate with members individually if they collectively comprise a majority. He asserted the best way for a city manager to inform the city council of issues is at a public meeting so the public gets the same information as the council members.
Senator Neal stated that would give the city manager controlling power, although it is not intended for this form of government. He suggested the public could be informed of issues through the availability of background information and the option of asking questions during public meetings. Mr. Lauer countered, information is not always available in writing and often is communicated through private discussions. He made a distinction between exchanging information and deliberating, emphasizing in the latter case, the public has the right to see the process in the open. He reiterated, if council members want to meet with the city manager or staff members, that is fine, as long as there is no deliberation.
Senator Porter provided examples of public officials going to a site to view potholes in an attempt to clarify the distinction between exchanging information and deliberating, and how public officials might know the difference. Mr. Lauer responded that if discussion occurred among a collective quorum of a public body, outside of a public meeting, toward the end of taking a particular action, it would be prohibited by this bill.
Senator Care provided examples of public officials encouraging certain voting behavior among their peers versus asking for clarification of an issue to be voted upon. Mr. Lauer asserted, polling fellow members of a public body would be in violation under this bill, and possibly under the current open meeting law. Senator Care clarified the current open meeting law would allow an attorney to discuss a case with each individual member of a public body, as long as they did not form a quorum at any one time.
Mr. Lauer referred to a Clark County School Board Case (Exhibit E) where the board reviewed a draft audit report by breaking up into small groups. The attorney general’s office found there was no quorum at any one of the separate gatherings, and no collective consensus was reached, so the open meeting law did not apply. However, Mr. Lauer pointed out, the members of the school board were able to deliberate privately.
Gary Wolff, Lobbyist, Nevada Highway Patrol Association, testified a board he previously sat on always provided materials several weeks before a meeting, to members and all interested parties, and there was never a violation of the open meeting law. He said what he considers a violation is when the public is deprived of access to government, and he asserted A.B. 225 is broader than dealing with attorney access to council members.
Kathy Naumann, Lobbyist, Teamsters Local 14, testified it had been a 2 ½-year struggle to get the Legislature to enact regulations to help the public employee benefits program. She provided three documents (Exhibit F) to exemplify issues the bill would address. The first document is a meeting notice which includes an agenda item for public comment, although, she said, the Teamsters Local 14 has never been able to publicly comment to the board with regard to their position on two complaints filed with the attorney general’s office against the Board of the Public Employees’ Benefits Program.
The second document includes regulations which the Legislative Commission had asked to be worked on by the teamsters’ attorneys and the board, but, Ms. Naumann said, there was never an opportunity for the teamsters to comment on the regulations before the board voted on them. She claimed the Board of Public Employees’ Benefits Program had not provided notice of the meeting to her, and she had to go to the Governor’s office in Las Vegas and also call the attorney general’s office to learn the location of the meeting.
The third document is a letter dated August 16, 2000, which Ms. Naumann claims was sent in fear of retribution. She said it states representatives from Vision Service Plan were not notified of a request for proposals which could have saved almost $40 per participant if they had been allowed to speak at a meeting about this.
Ms. Naumann described herself as a labor representative who has been organizing for 25 years and has come “head-to-head” with this issue over and over again. She said she is not sure the language in the new bill will sufficiently clarify the problem because “as long as people think they can step to the far side of the law and do what they want behind closed doors and make regulations that impede government, then we’re in big trouble.” She testified in full support of the bill, although she asserted there are “bigger problems out there.”
Senator Raggio expressed concern with the possible misuse of the provisions of the bill, particularly in limiting social gatherings of public officials, which would “make everybody guilty.” Additionally, he expressed concern the provisions of the bill would also apply to meetings of members of a public body with their attorney to discuss litigation, including strategy, although the other side would be free to discuss their strategy in private.
Assemblywoman Freeman said she had never heard the kind of comments Senator Raggio had made regarding not being able to talk to a public official, but, with regard to avoiding social gatherings with fellow members of a public body, she suggested this was the price of being in public office. She added that she found many of the arguments regarding attorney-client privilege to be fallacious, and she suggested the public should be given credit for trusting their representatives to do the right thing. She reiterated her concerns with public bodies in Washoe County that “flagrantly violate the intent of the open meeting law,” and asserted the need to notify them, people are “out there watching and paying attention,” and “the loss of public trust is the ultimate loss.”
Senator Raggio asked what public policy is served by prohibiting members of a public body from having private discussions with their attorney in the case of a lawsuit. Assemblywoman Freeman said she was not an attorney, but asked Senator Raggio what language in the bill gave him trouble. He reiterated his concern.
Gary Schmidt, Concerned Citizen, described himself as a 30-year resident, property owner, and business owner in unincorporated Washoe County, with three current civil actions against Washoe County. He said chapter 286 of Nevada Revised Statutes (NRS) makes clear, an attorney cannot meet in closed session to discuss litigation because it is litigation on public matters, and the intent of the Legislature was that the public should be allowed to be part of those discussions. Although this may be some disadvantage, he emphasized, it should not be the moral position of a public body to hide facts from the public, and “if a position of jeopardy is demonstrated, so be it.” He said this bill would extend the current law to serial meetings to prohibit closed meetings which include deliberation, unless they involve personnel matters.
Mike Tracy, Concerned Citizen, shared his view that the important thing with regard to attorney-client privilege, when the client is a public body, is the actual discussion that takes place. If the intent is to give the public official information to use as a “secondary action,” he said, then the public should also have access to that information in order to understand the action.
Senator Raggio argued that in attempting to reach a settlement, if the opposing side were aware of the range proposed for settlement, it would naturally choose the high end. He reiterated his concern with the possible limiting of participation in social events, and asked how a public official participating in such an event could disprove a charge of violation of the open meeting law.
Mr. Tracy stated the bill goes to intent and if there is intent to circumvent the open meeting law, then that intent should be punished. He suggested “deliberate” may not be the correct word, and possibly “discussion among public officials” would be more appropriate. He gave examples of public bodies which hold discussions preliminary to public meetings, resulting in decisions which do not include public discussion.
Senator Care cited statutory rules of evidence under NRS 48.109 which preclude the admission of settlement discussions as evidence, and asserted this was ironic because an attorney for a public body could have a private discussion with opposing counsel, but not with members of the public body.
Mr. Schmidt asserted that under existing law, counsel could discuss settlement and the merits of the case with one or two board members, but could not have a discussion with a quorum of the board members. He said this would not preclude settlement conferences with a representative of a public body, such as the chairman. Mr. Schmidt said if the issues are of concern to the council as a whole, then they are also of concern to him as a member of the public who elected the officials or the people who appointed the officials. He said he does not want members of a public body going out serially and deciding on their own to alter something or resolve litigation. He suggested, when a series of meetings includes a caucus to frame the issues, transcripts of meetings prior to a public hearing should be made available to the public.
Mr. Robinson suggested, when public bodies negotiate with an attorney, the attorney has latitude to make the best deal possible and come back to the public body with that deal, and no secret meetings should be necessary. Senator Care countered it would be important for the attorney to get the approval of the public body with regard to the acceptable parameters of the negotiation.
Inviting opponents of the bill to speak, Chairman O’Connell requested representatives of local governments speaking against the bill limit themselves to three people to testify on behalf of all, rather than giving repetitive testimony.
Daniel C. Musgrove, Lobbyist, City of Las Vegas, testified the city advocates open government and the open meeting law, providing advance information on the Internet. He said the bill is onerous in its day-to-day application because it would limit public officials in carrying out routine duties, and would facilitate claims of violation by interested parties who may have a bias on a particular issue. Chairman O’Connell asked Committee Counsel Kim Guinasso to keep track of responses and get legal opinions regarding those responses.
Madelyn Shipman, Lobbyist, Washoe County District Health Department, testified she understands the reason for the bill but has a concern with the broad language used. She pointed out, while the bill was on the Assembly side, two efforts were made on behalf of local governments to clarify the language without creating a “chilling effect” on the service of public officials. She said one issue regards language which was changed from the original, “intent to avoid deliberation” to “avoid deliberation.” Also, she said, the original bill proposed a definition of deliberation which would prohibit any discussion outside of fact-finding, including offering an opinion upon request.
Ms. Shipman suggested it is a training issue for public officials to understand the need to put their voting rationale on the record, particularly on a controversial issue. But, she said, this bill goes too far because any private communication among members of a public body may be considered a violation of its provisions, and it is unfair to public officials to have such unsubstantiated allegations on record. With regard to attorney-client privileges, she asserted court cases have made it clear, although attorneys may not meet with public bodies in closed sessions, they may meet with members individually or in smaller than quorum groups to provide analysis of a case. She claimed this is in the public interest and all members of a public body deserve to have information and access to an attorney making a recommendation. With regard to settlement agreements, she asserted that until an agreement is reached, information should not be made public so the other side does not gain an advantage that is not in the interest of the public.
William E. Isaeff, Lobbyist, City of Sparks, and Nevada League of Cities and Municipalities, expressed concern with section 1 of the bill which would “elevate to a high level of procedural compliance, public bodies taking actions that no one seems to have indicated there is a need to have the law for.” He said it would require an extraordinary amount of notice for a public body to take administrative action against any person, or to acquire real property through the exercise of eminent domain. He stated, in his experience, he knew of no case where a public body took such actions in a secretive manner, and such actions typically result after long-term negotiations have proven fruitless.
Mr. Isaeff said the proposed requirements for notification of 5 working days, if delivered in person, or 21 working days, if delivered by mail, are the same periods of notice given to someone who is subject to a closed session of the public body. Neither the case of administrative action or the exercise of public domain “deserves to be elevated to that level,” and, he said, he had heard no testimony to sustain such a provision.
Regarding section 2 language on serial meetings, Mr. Isaeff said the City of Sparks strives to follow rules of procedure as set down in a court case involving the City of Reno. Occasionally, he noted, there are private briefings for council members, but they are done on a one-to-one basis and only involve the exchange of information, and no concurrence is solicited from the member. He explained, if multiple members are briefed serially, communications from the members themselves are not reported to subsequent members, and this process allows better preparation for the full public meetings.
Mr. Isaeff said he can understand why the attorney general’s office added a fiscal note on this legislation because more litigation could be expected, given the broad language of the bill which would disallow normal attorney-client privilege. He suggested there should also be a fiscal note for the cost to state and local governments because there would be fewer settlements if attorneys were constrained from confidential discussions on settlements. He pointed out he had authored the idea of the open meeting law in Nevada, and the first several issues of the related manual. He said it was a good law, but not a perfect one, and the language proposed by the bill would run up against the “law of unintended consequences.” Mr. Isaeff voiced agreement with Ms. Shipman’s earlier statements and noted the Sparks City Council and the Truckee Meadows Water Authority Board of Directors oppose the bill. In conclusion, he expressed concern the bill would impact all public officials, whether elected, appointed, salaried, or volunteer, and it would be “unreasonable to put them at further risk.”
Senator Neal asserted in a republic, citizens elect their representatives to make decisions for them. For citizens to know every detail of government a direct democracy would be needed, he said, which is unworkable given the size of our country. Therefore, he said, citizens have to entrust their representatives with some decision-making power. Mr. Isaeff agreed with Senator Neal’s analysis, adding our representatives must be well informed to make the best possible decisions, and under the Nevada open meeting law, information is also made available to the public.
Ms. Shipman reported the Washoe County Board of Commissioners also voted to oppose the bill as it was written prior to the reprint, and, she asserted, they would remain opposed unless it were amended. Chairman O’Connell asked local government representatives in the audience to stand if their council or commission opposed the bill; representatives from Elko and Douglas Counties stood.
Assemblyman Robert (Bob) E. Price, Clark County Assembly District No. 17, pointed out the Legislature has worked for many years trying to improve the open meeting law, and he strongly urged the committee to “try to find some amendment.” Chairman O’Connell closed the hearing on A.B. 225 and opened the hearing on A.B. 443.
ASSEMBLY BILL 443: Makes various changes concerning elections. (BDR 24-986)
Douglas G. Smith, Lobbyist, Citizens for a Scenic Reno, provided written testimony (Exhibit G) and testified in support of the bill, urging the committee to pass it. He explained his organization had recently completed a successful petition drive, resulting in a successful ballot question, and provided some suggestions for the process. He suggested the following language should be inserted in section 2 of chapter 293 of the NRS:
All state, county, [and] city subdivisions of the state must make a designated area available for the use of persons collecting signatures on a petition at any time the building is open to the public. The area must be reasonable and may be inside or outside of the building. [An] Employee in control shall designate and approve the area required.
Before using a designated area, the circulator of initiative petition signatures must notify the employee in control of the dates and times the circulator intends to use the area. The employee in control may not deny the person the use of the designated area.
Any circulator aggrieved by the decision by the employee in charge may appeal the decision to the secretary of state to determine if the designated area is reasonable.
The secretary of state’s decision is final and the decision may be appealed in the first judicial district court.
The secretary of state may adopt regulations to carry out the provisions of subsection 3.
Mr. Smith stressed, “public money should not be expended to support or oppose candidates or ballot questions,” noting there had been a situation in Reno where public funds were used in this way. He concluded, because the state permits initiative petitions and referendums, NRS “should assist circulators in circulating petitions on public property by setting an example to the private sector.”
Michael Robinson, Concerned Citizen, expressed concern that when circulating a petition related to backing county bonds with general obligations, 2 percent of the signatures gathered must be representative of 2 percent of the assessed valuation of the county. The problem is, he said, when you are circulating a petition you cannot ask people what property they own. He suggested this was an archaic rule because today, everyone pays property tax whether directly or passed on by landlords or commercial property owners. He requested this language be stricken from the bill. He referred to an article in the Reno Gazette Journal (Exhibit H) which supported seeking redress in the courts and the legislature.
In response to a question from Senator Neal, Mr. Robinson suggested A.B. 443 be amended to allow filing of actions in appropriate districts, rather than requiring filing in the First Judicial District Court. Senator Care referenced a statute requiring appeals from the Public Utilities Commission be filed in the First Judicial District, but noted there were provisions for filing in other districts. Chairman O’Connell asked Committee Counsel Kim Guinasso to check on this.
Senator Care expressed concern with the language “owned and occupied,” suggesting if a building were leased, there would be no right to petition. Also, in the case of a building such as the Thomas Mack Coliseum, where there may be 20,000 people attending a sports event, he asked whether petitioners could gather signatures inside the building without paying admission. Mr. Smith responded that the proposed language would require approval for signature gathering from someone “in charge” at a particular location. He said he assumed it would not be allowed inside or somewhere that could cause a problem with traffic. Mr. Robinson suggested the language could be “owned and/or occupied” to address the lease issue, because the state probably leases a lot of buildings.
Janine Hansen, Lobbyist, Nevada Eagle Forum, reported she testified in opposition to a similar bill last session, but said she supports the current bill. She related events where she had nearly been arrested due to petitioning activity, noting the problem is, if you cannot petition on private or public property, then the right to petition is not useful because going door-to-door is too time consuming, costly, and assumes some personal risk. She asserted A.B. 443 is important to “let bureaucrats know that we have a right to exercise our right to free speech and our right to petition.”
Ms. Hansen expressed concern with language in section 3 of the bill:
[The] government of this state or political subdivision of this state or an agency thereof shall not incur an expense or make an expenditure to support or oppose: (a) A ballot question within the 60 days immediately preceding the election at which the question will appear on the ballot; or (b) A candidate within the 90 days immediately preceding the election at which the candidate will appear on the ballot.
She suggested there should be no time frame associated with this language because funds should not be expended this way by government at any time. She commended all those who had worked on the bill, and expressed pleasure that the “next time we go petitioning at DMV, we won’t get arrested.”
Senator Care inquired whether “building” could be interpreted to mean “structure,” and whether petitioners could gather signatures at the Fremont Street Experience in downtown Las Vegas. Ms. Guinasso did not know whether there were governmental entities occupying this location, but noted the proposed language is “owned and occupied.” Senator Neal asked about changing the conjunction to a disjunction. Ms. Guinasso said if the language were “owned or occupied,” it would significantly broaden the number of allowed sites, and the Fremont Street Experience would likely be included. Ms. Hansen said it was important that all public places, whether owned or leased by a government entity, be open for petitioners without the threat of arrest.
Mr. Tracy asked that language be added to allow petitioners to collect signatures on school grounds on election day when a school has been designated as a polling place, although the proposed language would prohibit such activity at other times. He said it is a common practice to collect signatures in polling places because there are significant numbers of registered voters in these areas.
Senator Titus inquired about existing laws regarding allowed activity, such as approaching voters in polling places. Mr. Tracy said if petitioning were allowed on school grounds when such a school is designated as a polling place, efforts would have to be coordinated with a principal or other authority to ensure smooth operation. Ms. Guinasso said she believes the activity of petitioning would fall under electioneering and may therefore be restricted under existing laws.
Harvard (Larry) Lomax, Registrar of Voters, Clark County, confirmed NRS specifically addresses petitioning on election day, with the requirement that it be done at least 100 feet distant from the entrance of the polling place structure. With regard to the presence of petitioners on the school grounds, as long as they are 100 feet from the entrance to the polling place, in Clark County it is left between the principal and the petition gatherer, he said.
Lucille Lusk, Lobbyist, Nevada Concerned Citizens, provided a proposed amendment (Exhibit I) to delete language regarding time frames for government campaign or candidate expenditures, as earlier remarked upon by Ms. Hansen. Ms. Lusk said, “Once an item is placed on the ballot, it is reserved for a decision by the people, and government should not be expending taxpayer dollars at any time.” The proposed deletions would leave the statement, “Government shall not make expenditure in support or opposition of a ballot question or candidate.”
Assemblywoman Christina R. Giunchigliani, Clark County Assembly District No. 9, thanked Ms. Lusk for catching the date problem and stated her committee in the Assembly would accept the change if the bill came back to them. Chairman O’Connell closed the hearing on A.B. 443 and opened the hearing on A.B. 227.
ASSEMBLY BILL 227: Revises definition of committee for political action. (BDR 24-917)
Assemblywoman Giunchigliani explained the bill would revise the definition of committee for political action which currently exists in chapter 294A of the NRS to mean “any group of persons or entities that solicits or receives contributions from any person, group, or entity designed to affect the outcome of any primary, general, or special election or question on the ballot.” She said this would not include “political party caucuses of the legislature, an entity that provides goods or services to a candidate or committee as a regular course of business, an individual person, an individual corporation or business entity formed under Title 7 of the NRS, a labor union, a personal campaign committee, or a committee for the recall of a public officer.” Reading from a bill summary, Assemblywoman Giunchigliani quoted:
The bill declares that the secretary of state must, when determining whether an entity or group is a committee for political action, consider the division or separation of an entity or group into units or sections only if it appears that such division was for a purpose other than for avoiding the reporting requirements for committees for political action. Finally, the measure adds a civil penalty of not more than $5,000 for the failure of a committee for political action to file the required registration form.
Assemblywoman Giunchigliani noted the bill would be effective October 1, 2001, and was “derived largely from a more comprehensive definition of ‘political action committee’ from the State of Utah.”
Ms. Hansen testified she had worked on A.B. 227 with the committee in the Assembly and her original concerns had been addressed. She asked that the record reflect this definition of “committee for political action” would only cover express advocacy, which is defined by the United States Supreme Court as specifically saying “vote for” or “vote against” either a candidate or an issue, and not issue advocacy, which is much broader. She explained issue advocacy includes voter education materials, and it enjoys absolute protection from government monitoring, rationing, and restrictions, and she provided documentation on issue advocacy versus express advocacy (Exhibit J). She clarified for Senator Titus, if an item of advocacy does not specifically include the words “vote for” or “vote against,” then it is not considered express advocacy.
Chairman O’Connell closed the hearing on A.B. 227 and opened the hearing on A.B. 295.
ASSEMBLY BILL 295: Revises provisions governing participation in elections by elderly and disabled persons. (BDR 24-839)
Assemblywoman Giunchigliani explained the bill would require the secretary of state, at the request of an elderly or disabled person, to provide that person with any material related to elections and made available by the secretary of state to the public in printed form. She said the bill would encourage the city or county clerk to notify the public, through means designed to reach the greatest number of people, of provisions set forth in Nevada law to assist persons who are elderly, disabled, or unable to read or write English to participate in the voting process. Assemblywoman Giunchigliani said election officers would be encouraged to make reasonable access to election related information and processes for this same population through alternate audio and visual formats. She added, accommodated access to voting booths would be required during the hours a polling place is open to ensure equal privacy for elderly or disabled voters. She also noted clerks would be further encouraged to post voting instructions in at least 12-point type at each polling place.
Continuing, Assemblywoman Giunchigliani said the bill would require absentee ballots in 12-point type be provided to elderly or disabled voters upon request, and registration instructions be posted in 12-point type in conspicuous places in voter registration agencies. Also, field registrars could be dispatched to members of this population for voter registration identification, she said, and sample ballots would contain a statement indicating if an elector is elderly or disabled, he or she may contact the city or county clerk for voter assistance. She explained the sample ballot must also state the city or county clerk will make reasonable accommodations at the polling place for voting by the elderly or disabled. Finally, she said, the bill encourages each county, by July 1, 2003, to provide at least one telecommunications device accessible to a person who is deaf, for certain election purposes.
In response to a question from Senator Neal, Assemblywoman Giunchigliani explained the word “encourage” is used with regard to the provision of telecommunication devices, to avoid unfunded mandates, until July 1, 2003, at which time the Legislature would revisit the issue.
Mr. Lomax stated he worked with the Assembly Committee on Elections, Procedures, and Ethics on the bill, and Clark County is already working toward its requirements, but technology does not currently exist for all disabled voters to vote unassisted. In response to Chairman O’Connell, Mr. Lomax said the provisions of this bill would conform to the point type required under Senator Wiener’s bill.
Assemblywoman Giunchigliani explained to Senator Care, individuals are not defined by others as disabled, but would self-select by checking a box requesting assistance. Mr. Lomax testified support for everything in the bill, noting interested parties have worked well together to get things “ironed out.” Assemblywoman Giunchigliani noted there is a national task force working on these same issues and Nevada is far ahead by comparison, for which she commended local jurisdictions.
Chairman O’Connell closed the hearing on A.B. 295 and opened the hearing on A.B. 483.
ASSEMBLY BILL 483: Makes various changes concerning reporting of campaign contributions and expenditures. (BDR 24-557)
Assemblyman Bob Beers, Clark County Assembly District No. 4, explained the bill resulted from his collaboration with the Office of the Secretary of State and other interested parties to clarify and streamline reporting forms for campaign contributions and expenditures. He stated this bill represents comprehensive reform rather than patchwork adjustments. The reporting cycle, he said, would be changed to an annual basis from a campaign cycle and there would be no more reports at 3½-year intervals. He noted he had originally proposed a photocopy of the reporting form be included in the law to avoid ambiguity, but that is apparently not allowed, so the Legislative Counsel Bureau provided a model of the form which is shown in the first three pages of the bill.
Assemblyman Beers explained pre-election reports were maintained as important documents to be available to the public and anyone else interested in them. Rather than multiple forms associated with different entities, a single form would provide a check box for the type of entity, he said. Additional proposals include removal of the report of revenues and expenditures under $100, and removal of the disposition of unspent contributions report, but reports on expenses and revenues over $100 would still be required, he said.
In response to Senator Neal, Assemblyman Beers stated he believes there has always been an obligation to report the total amount of funds in all bank accounts, and if it was not previously required by the secretary of state, he said, it should be. He said he was not aware that, constitutionally, candidates could only report on contributions and not expenditures due to free speech issues, and his initial goal was not to change policy, “but to bring some common sense and basic accounting concepts to existing policy.”
In response to Senator Titus, Assemblyman Beers said A.B. 483 would not address the issue of reporting lump sums from a credit card statement, but the Federal Election Commission (FEC) requires individual itemization of expenditures. In response to Senator Porter, he said the goal is for the reporting document to reflect election cycle forms for consistency, except for spaces to indicate which period is being reported and what type of entity is reporting.
Continuing, Assemblyman Beers pointed out the Assembly added two amendments: one dealt with failure to capture elimination of subsequent distributions, and the other excluded caucuses from filing this report. He said he did not think the latter amendment improved the bill. In response to another question from Senator Neal, Assemblyman Beers stated a campaign financed solely by the candidate would be subject to the same requirements as any other campaign, except the limit on contributions from a single individual would not apply since that individual is the candidate.
Responding to Senator Porter, Assemblyman Beers said he usually reports his personal loans to his campaigns as both a positive and negative contribution, and suggested an amendment or Letter of Intent to the secretary of state could ensure this is addressed in reporting instructions for processing loans. He clarified for Senator Porter, this bill does not provide for additional staff under the secretary of state to provide a preliminary review of reports to notify candidates of possible errors, as is done by the FEC.
In response to Senator O’Donnell, Assemblyman Beers said a software program such as “QuickBooks” does not have the capacity to provide the kind of detail in the format required by the secretary of state. He noted the secretary of state has a pilot project for a web interface to allow direct entry, but he would prefer an option to electronically submit a spreadsheet with the required categories of information which could then be imported into a database. He asserted this would be easier for candidates and would also provide for cross-tabulated reporting.
Janet Gilbert, Lobbyist, Progressive Leadership Alliance, provided Exhibit K showing the proposed report format, as prepared by her colleague, Paul Brown. She commended Assemblyman Beers for his efforts and reported Mr. Brown recommended the amount for the total balance of all bank accounts be called “ending balance” to avoid confusion if a check had not cleared the bank. She urged support of A.B. 483.
Chairman O’Connell explained she had a certified public accountant do her reports who would not include any amounts until they were cleared by the bank. Assemblyman Beers said he preferred cash accounting which would list all amounts from a check register and correct any errors with a reversing entry once checks had cleared the bank. He also suggested reporting of in-kind contributions could probably be simplified with the use of a single form to list such contributions, but an amendment would be required. He explained the same in-kind contributions can legitimately fall within a range of values based on supply and demand, or even “whim.”
Susan Morandi, Deputy Secretary for Elections, Office of the Secretary of State,
asked that the bill take effect January 1, 2002, so as not to fall in the middle of city elections and create confusion. Also, she suggested the model form be in section 1, which would make more sense since this is where it is described. She clarified for Ms. Guinasso, the language to be entered into section 1 of the bill would be deleted altogether from chapter 365 of NRS. Assemblyman Beers stated support for these proposed amendments.
Chairman O’Connell closed the hearing on A.B. 483 and opened the hearing on A.B. 637.
ASSEMBLY BILL 637: Makes various changes concerning elections. (BDR 24-339)
Mr. Lomax testified the bill provides for administrative cleanup to help voters as well as clerks and registrars. He said the bill would add a provision to law that is currently in Clark County policy, to allow homeless people to register and vote by assigning districts based on the four streets which bound their usual area of dwelling. With regard to processing petitions, he said, clerks would only be required to withdraw the names of signatories upon request of those signatories, if such removal would affect the outcome of the petition.
Continuing, Mr. Lomax pointed out current law requires if a voter requests a mail ballot and then votes in person, the mail ballot must be surrendered at the time of voting, unless it has been lost, in which case, other provisions apply. The bill proposes people who request mail ballots and then vote in person be required to sign an affidavit saying they understand it is a felony to attempt to vote twice and they will not use their mail ballot, he said, although the county does have the ability to ensure no one votes twice.
Currently, Mr. Lomax said, there is a contradiction in the law which requires the sealing of roster books for 22 months prior to destruction, but the roster books are also supposed to be available to the public for this period. The proposed language would require the roster books not be sealed for this period, he said. Another change would include a statement on voter registration forms recommending to voters they return registration applications directly to county clerks, by mail, or in person, to ensure their actual registration, he said.
Continuing, Mr. Lomax said entry of voters’ social security numbers on every list sold is required under current law, but this bill would allow exclusion of that identification, as well as allowing voters to request their telephone numbers be kept confidential. Currently, he said, the only thing voters can request to be left off the list is their address. Another change he described would allow a voter anywhere to request an absentee ballot over a facsimile machine, whereas, currently, the law only allows this for people who are out of the country.
Mr. Lomax said the last day to request a mail ballot would be seven days before an election as opposed to the “Tuesday” before the election; this would be calendar days and not work days and the clerks’ offices are typically open on weekends immediately prior to an election. The submission date for initiative and referendum petitions would change from 100 days before an election to 130 days before an election to allow sufficient time for processing to get onto a ballot, if necessary, he said; and commissioners would have 30 days to act on such petition, rather than 60 days. Alan Glover, Clerk/Recorder, Carson City, agreed to provide a section-by-section breakout of the bill per Chairman O’Connell’s request.
Mr. Lomax explained to Senator Neal, the bill deals with county and municipal petitions and a petition may consist of more than one document, which is defined as the set of pages stating the issue and containing signatures. Each “document,” he said, should be notarized on the last page and turned in, collectively, to the county clerk. He explained the bill attempts to standardize local petition procedures with state petition procedures, and the only difference is that statewide petitions related to constitutional issues do not have a 30- or 60-day time period for review. Mr. Lomax further explained to Senator Neal, a petition circulator signs off on documents and then another person signs an affidavit stating all signatories are registered voters. Then, he said, these two signatures are notarized, and each document must be notarized. However, he said, a petition can be designed to hold any number of signatures, but if documents are not notarized, the county clerks still process those documents, noting the lack of notarization. If the case were taken to court, he said, it would be up to the judge to decide whether or not those documents would be included.
Mr. Lomax explained to Chairman O’Connell, a decision from a court case in Colorado was that petition circulators were not required to be registered voters. Ms. Morandi added that the finding in the Colorado case was that petition circulators did not have to be residents of the state or county in which they were circulating a petition. Also, she said, she believes the requirement for notarization is in the state constitution.
Mr. Lomax explained Nevada has resolved the issue with multiple signers by having someone, not necessarily the petition circulator, sign an affidavit stating everyone else who signed is a registered voter. The person signing the affidavit does not need to be a notary public, he said, and most petitioners have a circulator who is registered to vote, so they do not need a separate signer for the affidavit.
Senator Neal asserted multiple “documents” could be stapled together and notarized once to save on notary fees. Mr. Lomax said that the bill would not change anything in regard to notary requirements. The final change, he noted, would replace “4 months” with 130 days prior to general election, regarding when a petition must be submitted, which would be consistent with other language throughout the bill.
Ms. Hansen clarified for Senator Neal, a “document” can be multiple pages with a single notarization, and she received confirmation from Mr. Lomax, the amount of time for gathering petition signatures would not change. Ms. Hansen commended county clerks for proposing the allowance of removal of social security identification.
Chairman O’Connell closed the hearing on A.B. 637 and opened the hearing on A.B. 638.
ASSEMBLY BILL 638: Makes various changes regarding elections, ethics and financial disclosures. (BDR 24-873)
Assemblywoman Giunchigliani explained the bill would require the city or county clerk to notify anyone who initiated a voter challenge the result of that challenge as soon as possible, but in no case later than 21 calendar days after the election. Also, she said, election board officers would be required to note on the challenge list the name of the challenged person and the name of the registered voter who initiated the challenge. Furthermore, she said, the measure stipulates, the election board officers shall, if possible, orally notify the registered voter who initiated the challenge the result of the challenge, and indicate the result next to the challenged person’s name on the checklist maintained at the polling place.
Continuing, Assemblywoman Giunchigliani said the bill would codify regulations regarding the proper counting of votes on punchcard ballots and clarify when a vote must be counted on paper ballots. In addition, she said, the bill specifies when a vote on an optical scan-type ballot may or may not be counted, and stipulates that when counting a vote in an election, if more choices than permitted are marked on the ballot for any office or question, the vote for that office or question may not be counted. The measure sets forth instances when members of a ballot duplicating board shall remove a “chip” from an incompletely perforated punchcard ballot and explains the circumstances when the board must duplicate the punchcard ballot based on the condition of the chip, she said.
The election board would be required, upon closing of the polls, to record the number of voters on a form provided by the city or county clerk, explained Assemblywoman Giunchigliani. Also, the board would be required to report in writing to the clerk any difference between the number of voters and the number of ballots voted, and any known reasons for that difference, she said. A final requirement for the board would be to inventory supplies provided by the clerk and note any shortages, she said.
Continuing, Assemblywoman Giunchigliani said the bill would allow a new resident of the state, who is not registered, to vote for president and vice president of the United States. She explained the new resident would get a ballot and materials which would only apply to these offices and would only be able to vote in the office of the county clerk during regular office hours. Votes cast in this manner would be segregated from other votes of the precinct, and then combined with the vote totals for the county, she said.
The bill would also amend provisions in the ethics in government statutes by stipulating that “public office” does not include an office held by: any justice or judge; a commissioner of deeds; any member of a board, commission, or body whose function is advisory; any member of a board of trustees for a general improvement or special district whose official duties do not include the formulation of a budget; and a county health officer, said Assemblywoman Giunchigliani. She added the bill would further provide that judicial review of a final opinion issued by the Commission on Ethics regarding false statements in a campaign or impeding the success of a campaign must be by “trial de novo” and with a jury, unless the alleged violator requests such a review without a jury. Finally, she said, the measure clarifies in statute, a candidate for judicial office must file a statement of financial disclosure pursuant to Canon 41 of the Nevada Code of Judicial Conduct. Such a statement must contain all information required to be included in the statement of financial disclosure filed by candidates and public officers, she said.
Mr. Glover stated this bill deals with the duties of the duplicating board, while another bill processed by the committee deals with how “chips” from a punchcard ballot are counted. Both bills stipulate the same standards, which he said is important because the duplicating board has no separate standard.
Assemblywoman Giunchigliani explained to Senator Neal, people who moved into the state immediately prior to an election would be allowed to vote. Ms. Morandi confirmed the Office of the Secretary of State has a form for new residents to sign stating they have not previously voted in a given election. She agreed to provide Senator Neal with a copy of this form.
Assemblywoman Giunchigliani explained to Senator Titus, she had proposed a provision to allow anyone, not just new residents, to register to vote immediately before an election, but was unable to convince her peers of its merit. She said the assumption is, people have to be responsible enough to register within the specified time period of 30 days prior to an election. She noted the provision regarding the ethics commission and a right to trial by jury was the result of concerns expressed by Ms. Hansen, and the committee in the Assembly had agreed with her.
Assemblywoman Giunchigliani agreed with Senator Care’s interpretation that a “trial de novo” would permit a candidate with a hearing before the ethics commission to challenge the various provisions of the ethics law on constitutional grounds.
Ms. Hansen expressed appreciation for the inclusion of the right to trial by jury with regard to hearings of the ethics commission, stating the Nevada Constitution provides for the right to trial by jury in civil cases and it is of particular concern with the ethics commission, which could easily be politicized. She clarified for Senator Neal, the final opinion of the ethics commission would be subject to judicial review and, although the Legislature could waive the right to trial provided in the Nevada Constitution, she believes such administrative law has “caused a lot of grief.”
Ms. Guinasso clarified for Senator Neal, a district court review of a decision by the ethics commission could be appealed all the way to the United States Supreme Court, but would need to go up through the system and would not be a “trial de novo” at that point.
Chairman O’Connell closed the hearing on A.B. 638 and opened the work session with A.B. 63.
ASSEMBLY BILL 63: Revises provisions governing maintenance of certain improvements in subdivisions and planned unit developments. (BDR 22-994)
SENATOR NEAL MOVED TO DO PASS A.B. 63.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAGGIO AND SENATOR O’DONNELL WERE ABSENT FOR THE VOTE.)
*****
Chairman O’Connell opened discussion on A.B. 93.
ASSEMBLY BILL 93: Revises provisions of charter of City of North Las Vegas concerning city attorney. (BDR S-431)
Senator Porter explained he had received a letter from a North Las Vegas municipal judge requesting an amendment to extend judges’ terms of office to 6 years as had been done in other cities. Kimberly McDonald, Lobbyist, City of North Las Vegas, explained to Chairman O’Connell the amendment had been considered for presentation to the Assembly, but it was decided to go ahead and present it to the Senate. She said the city did not approve the proposal until it was invited to take the opportunity, so the proposal was just being brought forth now.
SENATOR PORTER MOVED TO AMEND AND DO PASS A.B. 93.
Senator Neal expressed he had not heard about this amendment previously, although he lives in the city. Ms. McDonald extended apologies to Senator Neal and explained the city had wanted the judge to “make the pitch himself.” Also, she said, she had understood the contract lobbyist had spoken to members of this committee just before the bill had passed through the Assembly committee, with regard to adding an amendment on this side.
Assemblyman Douglas (Doug) A. Bache, Clark County Assembly District No. 11, explained after the Assembly Committee on Government Affairs processed the bill, Warren B. Hardy II, Lobbyist, City of North Las Vegas, said he had assumed they were impacted by the City of Las Vegas’ bill. Assemblyman Bache said the city council apparently did not provide the necessary information and the staff can only follow through on what their elected officials provide for them.
SENATOR NEAL MOVED TO DO PASS A.B. 93.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAGGIO WAS ABSENT FOR THE VOTE. SENATOR O’DONNELL ABSTAINED.)
*****
Chairman O’Connell suggested to Senator an amendment could be brought to the floor.
Chairman O’Connell opened discussion on A.B. 95.
ASSEMBLY BILL 95: Revises provision regarding filing of annual report on performance of permanent employee. (BDR 23-343)
SENATOR TITUS MOVED TO DO PASS A.B. 95.
SENATOR PORTER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAGGIO WAS ABSENT FOR THE VOTE.)
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Chairman O’Connell opened discussion on A.B. 117.
ASSEMBLY BILL 117: Revises provisions regarding rules adopted by local governments that affect businesses. (BDR 19-495)
SENATOR TITUS MOVED TO DO PASS A.B. 117.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAGGIO WAS ABSENT FOR THE VOTE.)
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Chairman O’Connell opened discussion on A.B. 128.
ASSEMBLY BILL 128: Requires approval by attorney general of certain contracts and leases. (BDR 22-479)
SENATOR NEAL MOVED TO DO PASS A.B. 128.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAGGIO WAS ABSENT FOR THE VOTE.)
*****
Chairman O’Connell opened discussion on A.B. 163.
ASSEMBLY BILL 163: Makes various changes relating to regional planning in certain counties. (BDR 22-105)
SENATOR TITUS MOVED TO DO PASS A.B. 163.
SENATOR O’DONNELL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAGGIO WAS ABSENT FOR THE VOTE.)
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Chairman O’Connell opened discussion on A.B. 179.
ASSEMBLY BILL 179: Revises provisions governing annexation of territory by certain incorporated cities. (BDR 21-475)
Janelle L. Kraft, Lobbyist, City of Las Vegas, explained to Senator Porter one-eighth of the border of an area needs to be contiguous with the city, and 51 percent of the property owners need to agree, in order for the annexation process to go forward. In the case of an individual property owner, she said, the property would have to be 75 percent surrounded by city boundaries and there would be a notice of public hearing provided to the property owner prior to annexation. She pointed out, the city does not intend to force people into annexation and prefers to have them come willingly, doing its best to convince them of the advantages.
Ms. Kraft explained the provisions of the bill apply to vacant, undeveloped property, where services are provided to neighbors of these undeveloped lands, and they have agreed to be annexed at some future point when they become contiguous. She said the infrastructure provided to the area adds to the value of the property and makes it more suitable for development. Property owners in these areas have to pay city property taxes, she said, but they also have representation on the city council and a voice in the decisions which affect them.
Ms. Kraft confirmed for Senator O’Donnell that oftentimes people sign an annexation agreement for hooking onto a city sewer, or getting improvements made to their roads. She emphasized people are not forced to sign annexation agreements, and have options such as septic tanks or wells, depending on density. However, she said, large developments often sign annexation agreements in exchange for providing city sewers, and homeowners are made aware of those agreements when they purchase their homes.
Explaining the annexation process, Ms. Kraft said a resolution is approved by the city council, as agreed to by the developer and homeowners when they buy their homes. If the city is allowed to bring in undeveloped properties which stand between the city and large developments, she said, such large developments then become contiguous and may be annexed. She explained if the county approves a school which would impact traffic in a special improvement district, but does not agree to help fund the special improvement district, then some difficulty is created. Ms. Kraft stated for the record, at Chairman O’Connell’s request, the city would not carry out such activity without due process and public hearings.
Robert A. Ostrovsky, Lobbyist, City of Las Vegas, stated he had not seen the amendment to A.B. 179 and it was therefore difficult to respond. Colleen A. Wilson-Pappa, Lobbyist, Clark County, explained she had a conversation with city officials, including Marvin Leavitt, regarding the amendment to remove the first section of the bill which deals with individual property owners and leave the section on the Bureau of Land Management (BLM). She claimed the bill did not provide for due process, and impacted all of Clark County.
Senator Neal asserted this issue would need to be addressed at some point to create community and bring people into Las Vegas, as the city has an obligation to annex large developments. Senator O’Donnell countered, when property is annexed to the city, taxes are raised, and although people sign annexation agreements contingent on future events, “they do not ever think they are going to be annexed.” Ms. Kraft confirmed people sign annexation agreements knowing property taxes will be raised at some point, and, she said, they also take advantage of city services. Senator Titus pointed out taxes are higher in the city because people are paying for services for people who live in the county and keep their taxes low.
Mr. Ostrovsky said, based on his understanding of the amendment, he would not agree to it. He said the increase in property taxes upon annexation reflects services provided, and people who buy property outside the city and receive free city services know it will catch up with them eventually. He claimed maps show there is not “tons of undeveloped land out there,” and there is a lot of old infrastructure in the City of Las Vegas. He asserted the bill is fair because it is limited to undeveloped lands and “goes in the right direction.”
Ms. Kraft explained to Senator Porter, property owners of the developed parcels have agreed to future annexation, and with regard to undeveloped parcels, due process would take place with notification and public hearings prior to the city council voting on annexation. She reiterated the 51 percent-rule only applies to developed properties, and with regard to undeveloped properties, the property would have to be 75 percent surrounded by the city, and then there would be hearings at which the property owners could speak. Ms. Kraft explained further to Senator Porter, owners of undeveloped property in Clark County go to the county for zone variance and construction applications, which the county approves on the condition the city will provide sewer, and the city only has authority with regard to whether or not sewer service is provided.
SENATOR NEAL MOVED TO DO PASS A.B. 179.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAGGIO WAS ABSENT FOR THE VOTE. SENATORS O’DONNELL AND PORTER VOTED NO.)
*****
Chairman O’Connell opened discussion on A.B. 182.
ASSEMBLY BILL 182: Makes various changes to process of land use planning in certain counties and revises provisions regarding members of town advisory boards in certain counties. (BDR 22-57)
Senator Porter proposed an amendment to clarify where setbacks begin, and whether the inner or outer boundary of a lot defines the 330 foot buffer which is required. Senator O’Connell determined to hold the bill for the next meeting agenda and opened discussion on A.B. 202.
ASSEMBLY BILL 202: Revises provisions governing metropolitan police departments. (BDR 22-47)
SENATOR NEAL MOVED TO DO PASS A.B. 202.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAGGIO WAS ABSENT FOR THE VOTE.)
*****
Chairman O’Connell opened discussion on A.B. 458.
ASSEMBLY BILL 458: Authorizes local governments to impose impact fees on new developments to finance fire station projects, park projects and police station projects. (BDR 22-1000)
SENATOR NEAL MOVED TO DO PASS A.B. 458.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAGGIO WAS ABSENT FOR THE VOTE.)
*****
Senator Porter stated he was not opposed to the bill, but wanted to clarify it would not impose a new impact fee. Irene E. Porter, Lobbyist, Nevada Home Builders Association, explained chapter 278 of NRS allows impact fees for streets, drainage, sewer, and water, and the bill would add parks, police, and fire to the list of services for which local governments could impose impact fees.
Chairman O’Connell opened the discussion on A.B. 462.
ASSEMBLY BILL 462: Authorizes certain local governments to impose tax on nonresidential construction projects or require dedication of certain land for regional parks. (BDR 22-72)
SENATOR NEAL MOVED TO AMEND AND DO PASS A.B. 462.
Daniel C. Musgrove, Lobbyist, City of Las Vegas, explained to Senator Porter, a regional park, as defined in the bill, is 50 acres or more, and based on the city’s master park plan the park would serve an area approximately 8 miles in circumference, which is a national standard. In response to Chairman O’Connell, Mr. Musgrove said, currently the city does not have land available to accommodate such a park, but there are some BLM properties in the northwest part of the city which may become available.
Mr. Musgrove stated his objection to the amendment proposed by Jeanette Belz, Associated General Contractors (AGC) North, because it would appear to cause disproportionate construction taxes, and different rates would have to be assigned for each district versus calculating an average rate. He said there was no objection to the first amendment based on a determination by the Legislative Counsel Bureau to use the term “project” rather than “structure” in regard to residential construction.
Jeanette Belz, Lobbyist, AGC North, provided a copy of the proposed amendment (Exhibit L) and explained it would clarify the basis for the tax on page 3, lines 10-16. Specifically, she said, it would define “nonresidential construction project” to mean construction of a building; this would also address concerns with subsection 9, section 5 of the bill. Ms. Belz said she thought it would be appropriate to calculate, apply, and collect taxes within the same regional park district, and the actual costs of construction could be calculated to apply the tax accordingly. In response to Senator Neal, she explained this would calculate valuation of building permits in a certain area which should be the area the regional park is going to be built in.
Mr. Musgrove explained to Senator Titus, the city does have regional park designations in the regional park plan. He said, currently, taxes are determined through coordination with the construction industry and agreement on an average rate, and the language proposed for non-residential construction reflects what has been used for residential construction all over the state. He pointed out interested parties from southern Nevada were all in agreement with the bill as written.
Mr. Musgrove confirmed for Senator O’Donnell, the county builds parks on BLM donated land, adding the city does have BLM lands for which they have submitted transfer options. He clarified the bill proposes to have developers dedicate land in lieu of paying the non-residential construction tax, and then the city would provide maintenance as part of the city parks system, and the park would benefit people who live and work in that area.
Ms. Belz explained to Senator O’Donnell, the proposed amendment from AGC North would clarify the basis for taxes. She said the current language proposes the tax be calculated as 1 percent of the building permit or a maximum of $20,000 per project, but, she said, it is not clear whether a project would be an industrial park or an individual building built within an industrial park. Senator O’Donnell agreed the original language was not definitive as to who would be taxed and how the tax would be levied, which would be “pretty subjective.” Mr. Musgrove clarified for Chairman O’Connell that maintenance of a regional park would be covered through the city’s general fund.
Ms. Guinasso expressed concern with the proposed amendment in section 5, page 3, line 16, where “projects in the area” would be changed to “projects in the regional park district as defined in the master plan.” She said this would deviate from the manner in which the residential construction tax is determined in paragraph (a), which references building permits on actual cost of residential construction in the area. She said there might be a problem with two separate methods of assessment and different rates being calculated in different district areas. Ms. Guinasso offered to research the issue further.
Mr. Musgrove explained to Senator Porter, the change to the definition of “neighborhood park” on line 41 of page 4 was to introduce the concept of a “regional park,” which would address concerns of homebuilders to ensure residential construction taxes would be collected only for neighborhood parks. He said this would also clarify the size of a neighborhood park as “a site exceeding 25 acres.” However, with regard to the number of homes served, Mr. Musgrove said he would have to get back to Senator Porter with that information.
Mr. Ostrovsky said the city worked with homebuilders and other interested parties on the bill, and “if the Northern AGC shows up and says they don’t like it, we’ll carve out Washoe County. . . . This is a southern Nevada piece we tried to put together to help citizens of southern Nevada, and if you want to restrict this to counties over 400,000, we’d be happy to take that amendment and move on.”
Chairman O’Connell noted for Senator O’Donnell, the outcome of the last park bond issue was that it failed. Mr. Musgrove explained to Senator Porter, if developers spend $100,000 on property, negotiations and credit are based on that expenditure, and they are given an equivalent value of their non-residential construction tax. He claimed if the property is not in a good area for a park, there could potentially be some kind of trade, but normally the park would serve the area where construction is being done. He said the intent is not to build parks in areas remote from the construction site.
Senator Raggio re-entered the hearing and expressed concern with the definition of a “regional park district” and how it would apply to Washoe County. Specifically, he said, he was told residential construction fees of this kind could only be used in that specific regional park district, which would not help Washoe County where parks may be remote from any residential construction.
Mr. Musgrove said previous testimony from Washoe County representatives was they do have regional park districts. He explained the intent of the bill is to collect funds for regional park districts, and to apply those funds in the areas in which they are collected. Mr. Musgrove asserted the problem is the proposed amendment to create multiple rates for non-residential taxes, which would vary by district, which the city believes would be unfair, and would be inconsistent with the existing process for residential construction taxes.
Senator Titus agreed with Mr. Ostrovsky, if AGC North had a problem with the bill, and if Senator Raggio had a concern about the impact on Washoe County, the bill should be amended to apply only to counties with populations over 400,000. Ms. Belz clarified for Senator Raggio, the concern from AGC North was that construction taxes from one area would go to fund a regional park significantly distant from the construction area. She explained further, a regional park is intended for use by people who live and work in a particular area and could use it without commuting some distance.
Senator Raggio asserted he did not think the same nexus applied to non-residential construction that applied to residential construction with regard to regional or neighborhood parks because more people would be expected to use a regional park.
Ms. Belz said the proposed amendment language goes toward how taxes would be calculated and does not limit where those funds would be used. Senator Raggio asked, “What would be wrong with making a distinction that it apply only in a county with a population under [sic] 400,000? Would that solve the problem?” Ms. Belz responded, “That would be fine.”
SENATOR TITUS MOVED TO AMEND AND DO PASS A.B. 462 TO APPLY ONLY TO COUNTIES WITH POPULATIONS OVER 400,000.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION FAILED. (SENATORS O’CONNELL, RAGGIO, O’DONNELL, AND PORTER VOTED NO.)
*****
In response to expressed concern from Senators Titus and Neal, Chairman O’Connell asked if they wanted to try the motion without the amendment.
SENATOR TITUS MOVED TO DO PASS A.B. 462.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION FAILED. (SENATORS O’CONNELL, RAGGIO, O’DONNELL, AND PORTER VOTED NO.)
*****
Senator Titus remarked, “It’s a crying shame to put tax on residents for parks, but commercial developers take advantage of quality of life issues, build construction and make money, accommodate the people who live there, and [do] not make one contribution to the building of parks. What is the rationale for that?”
Senator Raggio responded, “This is not the place to criticize votes.” Senator Titus replied, “This is the only place where we can disagree.” Senator Raggio said, “I made a proposal and you didn’t buy it, so we didn’t buy yours.”
Senators Titus and Neal both stated they did not know what Senator Raggio’s proposal was. Senator Raggio said he “made a proposal to make a distinction between counties.” Senator Titus said she thought she was accommodating Senator Raggio by letting out the northern part of the state, but had perhaps misunderstood his proposal.
Chairman O’Connell explained, “For me, personally, there is not enough clarification in the bill itself. It needs to be a lot firmer defined, and to begin with, I don’t know where the land is that we’re talking about. I think that the policy we’ve had with parks is to have user fees for people who live in that area. I’m not comfortable with the bill. Permits would all go to $20,000 for a structure. I’m just not comfortable with that.”
Senator O’Donnell echoed Chairman O’Connell’s remarks and added, the language of the bill was ambiguous with regard to where the taxes would apply. Chairman O’Connell reiterated, maintenance for the parks would come from the city’s general fund. Senator O’Donnell reiterated, voters in the last bond issue voted down taxes for parks, and he asserted this would be a “roundabout way to obfuscate the will of the voters.”
Senator Neal responded, “We pass bills all the time around the will of voters. The city came in and asked for something to enhance the community and we can’t get it passed. They want to put tax on construction companies and we can’t pass it. I don’t understand that.”
Chairman O’Connell opened discussion on A.B. 537.
ASSEMBLY BILL 537: Authorizes construction and maintenance of benches and shelters for passengers of public mass transportation on exclusive basis by governing body or by franchise within unincorporated towns. (BDR 21-829)
SENATOR O’DONNELL MOVED TO DO PASS A.B. 537.
SENATOR PORTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman O’Connell opened the discussion on A.B. 553.
ASSEMBLY BILL 553: Revises provisions regarding notification of certain proposed planning and zoning changes. (BDR 22-197)
Senator Raggio asked whether the requirement for notification within 1/3 mile of selling alcoholic beverages was more than necessary because it is only 300 feet now. He asked for assurance that this requirement was reasonable. Assemblyman Bache said he believes additional notice is provided beyond the minimum requirements to extend to 1500 feet. Ms. Wilson-Pappa explained the improved notification requirement is tied to separation requirements.
SENATOR RAGGIO MOVED TO DO PASS A.B. 553.
SENATOR O’DONNELL SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman O’Connell opened discussion on A.B. 571.
ASSEMBLY BILL 571: Authorizes board of county commissioners to provide by ordinance for covering or removal of certain graffiti on certain types of property. (BDR 20-389)
SENATOR O’DONNELL MOVED TO DO PASS A.B. 571.
SENATOR PORTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
With regard to A.B. 462, Senator Neal said, “We’ve voted for taxes on hotels in Washoe to allow development, yet when our city comes here . . . [we] should be able to get that bill out of here because the city has asked for it and know what they need, and we should be able to address that.” Senator Raggio responded, “Why don’t we sleep on it and revisit it.”
Chairman O’Connell adjourned the meeting at 7:43 p.m.
RESPECTFULLY SUBMITTED:
Laura Hale,
Committee Secretary
APPROVED BY:
Senator Ann O'Connell, Chairman
DATE: