MINUTES OF THE

SENATE Committee on Judiciary

 

Seventy-First Session

April 6, 2001

 

 

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:30 a.m., on Friday, April 6, 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 Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

 

STAFF MEMBERS PRESENT:

 

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Ann Bednarski, Committee Secretary

 

OTHERS PRESENT:

Steve Barr, Lobbyist, Nevada Corrections Association

Glen Whorton, Chief, Classification/Planning, Department of Prisons

 

Chairman James opened the hearing on Senate Bill (S.B.) 233.

 

SENATE BILL 233:  Makes changes pertaining to correctional officers employed by department of prisons. (BDR 16-1179)

 

Steve Barr, Lobbyist, Nevada Corrections Association, began the testimony on S.B. 233 saying the bill makes technical corrections in the Nevada Revised Statutes (NRS).  Mr. Barr stated section 1, line 10, of S.B. 233, ensures any direct supervision, custody, security, and discipline of an offender is conducted by a correctional officer.  Currently the provision is not a part of the NRS. 

 

Continuing, Mr. Barr said, when the bill was drafted, it included a fiscal note not intended to be a part of the bill.  He said, “It was interpreted that we were trying to require the correctional officers now employed by Corrections Corporation of America (CCA) at Southern Nevada Women’s Correctional Center be state certified correctional officers, which was not the intent of S.B. 233.” 

 

Mr. Barr acknowledged he had discussed verbiage to eliminate the fiscal note with the committee counsel.  Adding wording to the effect, “with the exception of privately managed facility at Southern Nevada Women’s Correctional Center,” should eliminate the concerns of having to replace 110 officers and hire others, he said.  Mr. Barr pointed out the fiscal note allowed only $83,000 for the state to take back the Southern Nevada Women’s Correctional Facility, which could be something to look toward in the future. 

 

Mr. Barr testified section 2 of S.B. 233 clarifies line 40 and states, “correctional officers who are designated as having the powers of a peace officer.”  Mr. Barr explained, “We have the right, according to NRS 202.350, to carry a concealed weapon.”  Referring to an opinion from the Legislative Counsel Bureau (LCB) (Exhibit C), Mr. Barr said, “Brad Wilkinson [Bradley A. Wilkinson, Committee Counsel] has taken great effort . . . it was interesting, after last session I requested of Assemblyman Lynn Hettrick to request the opinion from LCB.”  The opinion given by LCB answered Assemblyman Hettrick’s query whether a correctional officer employed by the Department of Prisons (DOP) may carry a concealed firearm without first obtaining a concealed firearm permit pursuant to NRS 202.3653 to 202.369, inclusive, he said. 

 

Mr. Barr said, “We would like to amend that section [section 2, line 40], going down to lines 42 and 43 where it reads, ‘police officers of this state, correctional officers of this state, whether active or honorably retired,’ omitting the italicized verbiage that is in there now.” 

 

Clarifying, Senator Porter inquired, “We are looking at line 40?”

 

Responding, Mr. Barr said of line 40 the italicized writing would be omitted.  Then moving to line 43, section 2, the new verbiage would read “correctional officers of this state,” stated Mr. Barr.

 

Chairman James inquired about the Nevada Division of Forestry (NDF) personnel who supervise the trustee firefighting groups, and how they would deal with them. 

 

Replying, Mr. Barr stated, “In section 1, it says, ‘any direct supervision, custody, security and discipline,’ so, it is all inclusive.  The NDF workers are not responsible for the discipline of the inmates; they do handle some facets but do not handle discipline.” 

 

Chairman James remarked, “That would be ‘and/or;’ that is somebody who does just direct supervision and not discipline, who would be covered by that.”

 

Mr. Barr told Chairman James, “From this standpoint, currently we have community trustees who work unsupervised in some areas.  They may work at central headquarters for the DOP, or they may work on lawns in the mall, they may answer directly to someone . . . but they are not technically in custody of that person; they are not technically in the custody of an NDF crewman.”  Further, Mr. Barr said if the inmate misbehaves or does not follow the rules, the DOP is called by the NDF to handle the situation.

 

Acknowledging Mr. Barr’s testimony, Chairman James said, “I am sure it is the case, but the language would still seem to eliminate the possibility.”  Chairman James asserted if Mr. Barr wanted the bill to move forward, then there would need to be further drafting for clarification.  Further, Chairman James stated, “It needs to be drafted so it says, ‘with the exception of the women’s correctional center and with the exception of persons in positions like those at NDF.’” 

 

Mr. Barr replied, “Perhaps we can simplify the verbiage by saying ‘correctional peace officer.’”  Chairman James noted that simplifying the verbiage to say, “correctional peace officer,” would not help.

 

Concluding, Mr. Barr said he would work with the committee and committee counsel to find appropriate verbiage.

 

Clarifying, Senator Care asked, “When I first read section 1, subsection 5, it seems you are trying to codify what already happens, or you are attempting to have these inmates supervised?”

 

Mr. Barr replied, yes, that is the scenario. 

 

Senator Care furthered, “We are not having to go out and hire correctional officers to come in to do what someone else is now doing?”

 

Mr. Barr answered no to Senator Care’s question.

 

Senator Care asserted, “We have some lost practices out there, and we are trying to codify these practices.”

 

Glen Whorton, Chief, Classification/Planning, Department of Prisons, said theDepartment of Prisons does not support S.B. 233.  Mr. Whorton added there would be issue taken with the statement that the bill is a technical change to the law, but instead is an exception to change. 

 

Mr. Whorton said the committee’s questions go to the root of the DOP’s issues with the bill.  Mr. Whorton declared the DOP is very concerned about the unadjusted language that would terminate the relationship with the contractor of the women’s prison in southern Nevada.  Furthering, Mr. Whorton said the timeliness of S.B. 233’s projected date of July 1, 2001, would make it necessary to open a new institution.  Mr. Whorton pointed out he agreed about the comment on the NDF and the effect it would have on its program saying, “These individuals do have supervision over these inmates, sign for the inmates, and are responsible for what happens to them as direct supervision.”  

 

Mr. Whorton remarked as S.B. 233 is currently drafted, the individuals who supervise the inmates would have to be correctional officers and peace officers in regard to NRS 289.220.  Those supervising individuals would also have to be employees of the Nevada Department of Prisons because NRS 289.220 requires it, added Mr. Whorton.  Mr. Whorton maintained the DOP also has a problem with the measure, as it would affect the internal operations of the department.  For instance, said Mr. Whorton, the disciplinary process for the DOP is managed by correctional caseworkers, not necessarily correctional officers.  Mr. Whorton stressed the DOP is concerned a strict interpretation of the bill would require the department to recruit, train, and retain caseworker staff to the same physical standards as correctional officers.  Mr. Whorton stated, “It is our belief this measure came forward as a result of a practice, and it was not a loose practice, instituted by the director to fill vacancies at the remote facilities.”  

 

Chairman James asked if there is a way to draft the bill so those who supervise inmates would be required to be peace officers, but all the ancillary people, the cooks, the caseworkers, et cetera, would not be subject to any requirement to which NDF is not subjected. 

 

Mr. Whorton replied the chairman’s suggestion would be difficult, except with respect to the use of deadly force.  He said, “If you wish to provide an individual must be a correctional officer, or a peace officer, in the context of NRS 289.220, where their job duties entail deadly force, then that might be a reasonable way of looking at it.” 

 

Mr. Barr responded to Mr. Whorton’s comments, saying, “Although it is true one of the concerns is correctional assistants’ being hired, that policy has not ceased; there is one [assistant] scheduled to begin employment this week.”  Continuing, he said, is it not true just the rural prisons are being staffed with assistants; there are two or three correctional assistants at the Northern Nevada Correctional Center, and three or four at the Nevada State Prison.  “That was not the primary genesis of this section,” he said.

 

The genesis [of the section] became a reality because of the ongoing practice of the DOP hiring people off the street, telling them where to get their uniforms, then assigning them to institutions without formal training.  Mr. Barr said it would be equivalent to giving an untrained Nevada Highway Patrol officer a ticket book, uniform, and car and telling him to go to work.  Mr. Barr declared the argument of the DOP is the officers are never unsupervised.  He said he knows there are times they are unsupervised and have no use-of-force knowledge or training.  “It opens the state’s coffers to liability lawsuits,” he said, adding, “That is the genesis of the bill; it was on the drawing board before the correctional assistant became an issue.”  Mr. Barr suggested the verbiage ensure primary responsibility and any direct supervision lie with the correctional officer.  “Instead of ‘and/or,’ just have ‘and,’ all inclusive,” he suggested.

 

Senator Care commented, “There seems to be disagreement as to certain facts here, and I wonder how that can happen.  There is a reason for bringing the bill, but there seems to be disagreement as to what the intention really is.  I am confused.  I hope the two of you can come up with something.” 

 

Chairman James closed the hearing on S.B. 233, and opened the hearing on S.B. 504.

 

SENATE BILL 504:  Revises provisions relating to employment of wardens by department of prisons. (BDR 16-1308)

 

Mr. Whorton said he believed the bill primarily made technical changes, although there was also a substantive change in regard to how the DOP recruits and hires wardens.  

 

Mr. Whorton, referring to S.B. 504’s adjustment of NRS 209.161 by adding the words “appointment and” retention, said wardens are hired through the standard personnel process, but are retained at the will of the director as “at will” employees.  Continuing, Mr. Whorton said, “This is different from many ‘at will’ employees; ‘at will’ employees are usually in state government and are appointed.  This is what the director seeks.”  Mr. Whorton claimed the director seeks the opportunity to appoint individuals exclusive of the personnel process currently used for recruitment. 

 

Mr. Whorton mentioned the process could be somewhat cumbersome at times.  During the last biennium there were three warden positions vacant, and because of the difficulties experienced by the current personnel process, it is difficult for the director to fill the positions.  The intent of the bill is to allow the director to appointment people to the positions expeditiously. 

 

Chairman James questioned, “Is this at odds with the hiring or retention of these kinds of supervisory people in other parts of statute, Mr. Wilkinson?”  Bradley A. Wilkinson, Committee Counsel, replied, “I do not believe so, Mr. Chairman.”

 

Senator Care asked Mr. Whorton, “What comes to mind, when you talk about appointments, is political appointments.  Does this bill have any impact on the criteria considered when a warden is either appointed or hired?”

 

Mr. Whorton responded, “That perception is somewhat dated.  The way our business works now, we have to be very careful about whom we hire, and we believe we hire quality people.”

 

Senator Wiener asked, “Is it anywhere stated where someone could read it, what the criteria are, so you could be held accountable to challenge [of an appointment]?”

 

Mr. Whorton replied he believes there are specific criteria, but he would have to research the question.  He stated he understood Senator Wiener’s concern.

 

Chairman James closed the hearing on S.B. 504, and said there were some proposed amendments for S.B. 258 the committee needed to review. 

 

SENATE BILL 258:  Authorizes state agencies and local governments to adopt more stringent restrictions governing tobacco and products from tobacco than restrictions imposed pursuant to state law under certain circumstances.  (BDR 15-1299)

 

Mr. Wilkinson, Principal Deputy Legislative Counsel, Legal Division, Legislative Counsel Bureau, presented Amendment No. 130 (Exhibit D).  He said the first change contained in the amendment would strike the language in paragraph (c), of subsection 1, of section 3, “public waiting room, lobby, or hallway of any,” from the bill.  Mr. Wilkinson said, by striking the language, smoking would be prohibited in all areas of a medical facility or office, not just the waiting room, lobby, or hallway.

 

Mr. Wilkinson stated the second change proposed by Amendment No. 130 deletes line 42, on page 2 of the bill, and adds new language saying smoking would be prohibited on the “property of a public school or a school bus” (proposed paragraph [i], of subsection 1 of section 3), and the change would include any property of the school.

 

Mr. Wilkinson remarked the third change pertains to the definition of a childcare facility.  The current definition says a childcare facility is a facility providing care for 13 or more children; the change refers to the meaning in NRS 432A.024, which defines a childcare facility as a facility providing care for 5 or more children. 

 

Continuing, Mr. Wilkinson explained additional changes:

 

Sections 3 and 4, on page 3 [of the amendment], would prohibit the advertising of cigarettes, tobacco of any description, or products made from tobacco on the grounds of a public school, at an activity sponsored by a public school, or in any written material that is published by a public school.  Section 4 is the same prohibition with respect to a private school.  Section 5 would require a student who applies for a Millennium Scholarship to sign a written promise to refrain from using cigarettes, tobacco of any description, and products made from tobacco while he is receiving a Millennium Scholarship.  Section 6 would require a certificate holder to display on the front window of each of his taxicabs a sign indicating whether smoking is permitted in the taxicab. 

 

Senator Titus asked for clarification regarding school grounds, and requested there be included in the bill a designated area for smoking for the teachers.  Mr. Wilkinson replied the smoking area for teachers was included in the portion of the bill providing for a person in control of the public building to designate a separate area within the building to be used for smoking.  Senator Titus responded, “So that would apply to the medical facility as well as a school, so we are not going to put nurses or teachers out of a smoking area.”

 

Mr. Wilkinson said the provision, with respect to public schools, would still be addressed by subsection 3, of NRS 202.2491.  “Your question with respect to a medical facility . . .”  Senator Titus interrupted, “And the way we have now added (i) with the property of a public school to this list, under section 3 . . .”

 

Chairman James explained:

 

I think what happens . . . the list on page 2 [of the bill] is all of those things.  Then . . . subsection 2, paragraph (a), says you shall post signs prohibiting smoking; then [b] says you may designate a separate smoking area . . . In subsection 2, you would have to add (i) to the list.  If you didn’t add (i) to the list, you wouldn’t be able to designate a smoking area.  Subsection 3 talks about a public building, and a school would no longer be a public building, because it would be a separate item.  Public building is (b); this would be (i).  Then, the definition of public building would be inconsistent with that, because you would be saying it [a school, or grounds, or a school bus] is a separate thing; it is not a public building.

 

Chairman James continued, “Do you think you need to correct the amendment?  I think you need to correct the amendment to add (i) under subsection 2; schools are treated separately from public buildings, so we need to revise the definition of a public building.”  Senator Titus suggested it may be a “public building” includes a school building, but property of a public school would be school grounds, football field, and such; so, the school building is still included under public building.

 

“Then you would have a very unclear statute,” Chairman James commented.  Mr. Wilkinson agreed, saying he thinks it was the intent to have it included, and the language needs to be clarified.

 

Chairman James adjourned the meeting at 9:29 a.m.

 

 

                                                                                        RESPECTFULLY SUBMITTED:

 

 

 

     

Heather Dion,

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Senator Mark A. James, Chairman

 

 

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