MINUTES OF THE meeting
of the
ASSEMBLY Committee on Commerce and Labor
Seventy-Second Session
March 7, 2003
The Committee on Commerce and Laborwas called to order at 11:44 a.m., on Friday, March 7, 2003. Chairman David Goldwater presided in Room 4100 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. David Goldwater, Chairman
Ms. Barbara Buckley, Vice Chairwoman
Mr. Morse Arberry Jr.
Mr. Bob Beers
Mr. David Brown
Mrs. Dawn Gibbons
Ms. Chris Giunchigliani
Mr. Josh Griffin
Mr. Lynn Hettrick
Mr. Ron Knecht
Ms. Sheila Leslie
Mr. John Oceguera
Mr. David Parks
Mr. Richard Perkins
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Vance Hughey, Committee Policy Analyst
Wil Keane, Committee Counsel
Diane Thornton, Senior Research Analyst
Corey Fox, Committee Secretary
OTHERS PRESENT:
Lori Ashton, Southwest Regional Council of Carpenters
Terry Johnson, Labor Commissioner for the State of Nevada
Timothy Hay, Bureau of Consumer Protection
Bill Welch, President, Nevada Hospital Association
Fred Hillerby, Legislative Advocate
Fred Schmidt, Desert Inn Improvement Company
Chairman Goldwater called the Assembly Committee on Commerce and Labor to order at 11:44 a.m. and indicated that all members were present and a quorum was present. He indicated the work session would be done first because a member of the Committee needed to leave early. Chairman Goldwater explained that all members’ packets included a work session document (Exhibit C), which had been prepared by the Legislative Counsel Bureau staff. He then explained that Vance Hughey, Committee Policy Analyst, would explain the information included in the packet in the order it was prepared.
Assembly Bill 49: Revises definition of renewable energy to include waterpower for certain purposes. (BDR 58-920)
Chairman Goldwater added that the sponsors of A.B. 49 were not ready to make a decision on the bill and he removed it from the agenda. He then asked Mr. Hughey to begin on A.B. 48.
Assembly Bill 48: Provides expressly that certain provisions related to labor include persons unlawfully employed. (BDR 53-601)
Vance Hughey, Committee Policy Analyst, Legislative Counsel Bureau, began and stated that A.B. 48 provided expressly that certain provisions of labor applied to persons who were unlawfully employed. He indicated that a number of amendments had been proposed on the bill (Exhibit C), the first of which addressed whether the bill provided expressly that the duties of the Labor Commissioner included certain enforcement provisions or whether it was just clarifying. He indicated that the first amendment was to amend the title of the bill to “Provide that it does in fact clarify that the duties of the Labor Commissioner included enforcement of certain provisions related to labor, without regard to whether the person was lawfully or unlawfully employed.” Mr. Hughey stated that the second amendment was to Section 1. It amended the bill to be more generally applicable to the labor laws under the jurisdiction of the Labor Commissioner. The third proposed amendment was by the Labor Commissioner, to avoid the use of the word “employer” in Section 4, page 5, line 7, and instead refer to “contractor” or “subcontractor.” Finally, there was a proposal to make the bill effective upon passage and approval.
Chairman Goldwater asked Lori Ashton, Southwest Regional Council of Carpenters, if the amendments Mr. Hughey described met with her satisfaction, and she concurred. He then entertained a motion by the Committee.
ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO AMEND AND DO PASS A.B. 48.
ASSEMBLYWOMAN GIBBONS SECONDED THE MOTION.
Chairman Goldwater asked for discussion on the motion and Assemblyman Hettrick did not think that the Committee needed to include language that could be considered “uncomfortable” for some of the members. A couple of the paragraphs, Mr. Hettrick stated, included the language “without limitations, aliens to the extent.” He thought the members might consider amending the language in the two paragraphs in which the language occurred to instead state, “whether lawfully or unlawfully employed.” He thought this language would cover unlawful workers without direct reference to “aliens,” which would in turn make some of the Committee members more comfortable. He understood that the court had approved this language at one point, but he thought the Committee members were uncomfortable with specifically laying out a reference to a specific group at that time.
Chairman Goldwater asked Assemblyman Brown if that was the similar concern he had and Mr. Goldwater added that he believed Wil Keane had addressed that issue in the original meeting. Mr. Brown indicated it was his concern, and he proposed that a period be placed at the end of “oral or written.” He thought it would include all individuals, whether they were lawfully or unlawfully employed, alien or not, if they had an express or implied, oral, or written contract. Mr. Brown stated that he had a real problem, regardless of the ultimate interpretation of this bill, with the issue of “rule of law.” He explained that our society lived under “rule of law” and that was what kept the free society together. He believed that, as a legislative body, they were looking away from that, even under these difficult circumstances and he had a hard time supporting that. He thought that if the bill was limited to “express or implied, oral or written, period,” then undocumented workers were still covered. He did not want to expressly state that the Committee was embracing those who were in the state of Nevada and worked unlawfully.
Assemblywoman Buckley wondered if that particular sentence were amended, would the law still state that employees must be paid. She was concerned that an employer would know someone was illegal, hire the illegal worker, and still not pay the illegal worker. Assemblyman Brown imagined that would be subject to more debate and argument in a court. Assemblywoman Buckley asked if Mr. Brown thought the workers would get paid and Mr. Brown thought that the Committee was addressing that problem from the wrong end. He thought there should be extremely harsh penalties for one who employed an illegal worker and then failed to pay. He thought there were adverse consequences, and that was to be expected by anyone who breached the law. Mr. Brown was concerned that under an individual contract right or right to be paid, the Committee would invoke powers of the state to defend those who were unlawfully working in the state of Nevada. He thought the Committee was attempting to right two wrongs and he did not think that could be done. Ms. Buckley followed up and stated that her question referred to the purposes of the amendment. He asked if she meant whether he thought they could be paid. Chairman Goldwater interjected and stated he would have Wil Keane explain.
Mr. Keane noted the last phrase of the bill “…to the extent that doing so does not conflict with or infringe upon federal law.” He believed this phrase needed to be kept in the bill. Also, to the extent that a period was placed after “oral or written,” it would be open for argument as to whether or not unlawfully employed workers were covered. Mr. Beers asked if immigration was under the jurisdiction of federal law and Mr. Keane replied that it was. However, employment practices were governed by the states. Mr. Keane added that this created a tension for the purposes of this bill, so the Legal Division had drafted the language carefully to achieve the bill’s purpose without infringing on federal law.
Assemblywoman Giunchigliani appreciated some of the discomfort that some of her colleagues had, but she thought that the Committee did not need to create more court cases. She indicated the entire point of the bill was to give the Labor Commissioner jurisdiction and remove any ambiguity regarding how those cases should be handled. Ms. Giunchigliani thought that what Doug Bache, the former legislator that requested the billhad indicated, was that if a period were placed there, the answer to Ms. Buckley’s question was that the illegal workers would probably have to go to court to find out whether they would be entitled to be paid. She thought that would defeat the entire intent of the bill. Ms. Giunchigliani understood that employers should be severely punished and she would be happy to work with Mr. Brown on legislation, but for the time being she wanted to help the Commissioner be able to make the decisions that needed to be made, based on what was occurring at that time. She then said that she would have to argue against any delineation deletion of that language.
Assemblyman Hettrick thought the intent was not to force anybody to go to court. He understood the language to mean, if the law did not infringe upon federal law, then anybody could claim the language infringed upon their rights. He thought the Labor Commissioner would make the judgment based upon statute, and anybody could challenge that decision in court. Mr. Hettrick did not believe it would cause more court cases because they would be suing the Labor Commissioner, who would in turn defend his decision in court. He thought the Committee was just trying to not recognize, in the particular statement, the problem the Committee had with the language. That was all they were trying to do.
Assemblywoman Buckley asked Mr. Keane if a period were inserted after “unlawfully employed,” would the language be clear that an unlawful worker must be paid. She thought that the use of the word “alien” made it doubly clear, but she wondered if “unlawfully employed” encompassed that as well. Mr. Keane believed that it did, but in order to make that clear, he hoped the Committee would consider removing the phrase “and includes without limitation aliens” and leave “to the extent that doing so does not conflict with or infringe upon federal law,” at the end.
ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO AMEND AND DO PASS A.B. 48.
ASSEMBLYWOMAN GIBBONS SECONDED THE MOTION.
Chairman Goldwater stated that the Giunchigliani-Gibbons motion was before the Committee to amend and do pass. Assemblywoman Giunchigliani asked Mr. Keane that if the comma was taken out after “whether lawfully or unlawfully employed,” and the statement “and includes without limitation alien,” was deleted, so that it read “unlawfully employed, to the extent that doing so does not conflict or infringe upon federal law,” would the remaining language in regard to federal law be too open. She wondered if the bill needed to state “federal immigration law,” or if a citation was needed. Wil Keane believed that the reference to “federal” was proper. He stated that immigration law was something reserved for the federal government. Ms. Giunchigliani asked again if that would be understood and Mr. Keane affirmed. She then asked Chairman Goldwater if the language she had suggested could be discussed amongst the Committee before she confirmed her motion.
Assemblywoman Buckley stated that she could support that motion. She thought it was important that if an employer illegally hired someone, regardless of the circumstances, if employers were told they did not have to pay, it created an incentive for them to violate the law. She thought the public policy should encourage employers to hire only lawful employees. If the policy made it profitable for the employer to do that, then the Committee was weakening good state public policy. She thought that the amendment suggested by Mr. Hettrick accomplished the Committee’s goal without being specific to the circumstances. Assemblywoman Giunchigliani asked Chairman Goldwater if she could ask the Labor Commissioner if he felt, at least in his rulings, if the language complied with his concerns.
Terry Johnson, Labor Commissioner, State of Nevada, noted that he did not have a problem with the proposed language. He believed it would not create any problems for his office from an enforcement perspective. Assemblywoman Giunchigliani thought Mr. Johnson’s stance needed to be clear for the record. She said the Committee needed to make sure the language was clear. She thought that should be noted for the record by Terry Johnson.
ASSEMBLYWOMAN GIUNCHIGLIANI WITHDREW HER MOTION TO AMEND AND DO PASS A.B. 48.
ASSEMBLYWOMAN GIBBONS WITHDREW HER SECOND.
Chairman Goldwater accepted the withdrawal of the Giunchigliani-Gibbons motion that occurred earlier.
********
ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO AMEND AND DO PASS A.B. 48, INCLUDING THE FOLLOWING AMENDMENT:
· LINES 5 AND 6, STRIKE THE WORDS “AND INCLUDES WITHOUT LIMITATION ALIENS.”
ASSEMBLYMAN ARBERRY SECONDED THE MOTION.
Assemblyman Hettrick agreed with Ms. Giunchigliani’s understanding in that the language appeared in multiple places and he asked that the Committee include the language only once. Ms. Giunchigliani thanked Mr. Hettrick and explained that language should only be on lines 13 and 14.
Chairman Goldwater reiterated the motion made by Ms. Giunchigliani and asked if there was further discussion on the amendment. There was none.
THE MOTION CARRIED UNANIMOUSLY.
Assembly Bill 70: Limits certain fees which providers of health services that accept insurance payments may collect from patients. (BDR 40-33)
Chairman Goldwater asked Vance Hughey to explain the amendments to A.B. 70. Mr. Hughey stated that A.B. 70 was referred to as the “balanced billing” bill. He indicated that the Research Division had received two amendments (Exhibit C). The first one, from Assemblywoman Giunchigliani, clarified line 1, pages 6 and 9, that the health services would be covered health services. The second proposed amendment pertained to page 2. It would delete lines 4 through 9, in subparagraph b, subsection 1, Section 1. Mr. Hughey stated that this amendment addressed a concern by Assemblyman Brown regarding the phrase “whenever practicable,” which was included in that section. Mr. Hughey explained that the amendment on page 2 would remove the provision that currently requires a practitioner or health facility that “has entered into a written agreement to accept payment or reimbursement from an insurer for a particular health service, must, whenever practicable, except in an emergency, inform the patient of that fact before providing that service.” In addition, Bill Welch, President, Nevada Hospital Association, had proposed another amendment, (Exhibit D).
Chairman Goldwater informed the Committee that Mr. Welch had spoken with Assemblywoman Giunchigliani, sponsor of the bill, about his amendment, and that Mr. Welch had brought the proposed amendment to her. She stated that she had not agreed to it. She indicated that if Mr. Welch wanted to bring up the discussion, then he was more then welcome to, depending on what Chairman Goldwater desired. Chairman Goldwater then mentioned to Mr. Welch that, in the future, all work with the sponsor should be done in advance, so the Research Division could include amendments on the work session documents.
Assemblywoman Giunchigliani explained that the amendment Mr. Welch and Fred Hillerby, Legislative Advocate, brought to her had corrected language that might assume this legislation would not enable statements to be sent to patients. Those statements would explain to patients that their insurer had not paid and the patient might be responsible for payment. Ms. Giunchigliani noted that they were not currently responsible for payment and her concern with that language was that the Committee would be setting precedent. She understood the need for patients to contact an insurance company and inform them that their doctor had not been paid. She did not think that the language in the proposal indicated that, and she thought the particular language brought up by Mr. Welch would defeat the intent of the bill, thus creating something not currently in statute.
Assemblyman Hettrick thought that Ms. Giunchigliani was trying to accommodate them and had the same concern. He thought that Mr. Welch and Mr. Hillerby did not want the law to be interpreted that a doctor could not ask the patient to contact the insurance company. He wondered if a compromise could be reached to make the Committee and Mr. Welch comfortable; a compromise that did not ban the doctors from at least contacting an individual and informing them that their insurance company had not paid the bill. He wanted to work together and see if the Committee could solve the problem. Chairman Goldwater thought that would happen even without Legislative intervention and Mr. Hettrick agreed as long as this particular bill did not stop them from doing that. He believed that was Mr. Welch and Mr. Hillerby’s concern.
Assemblywoman Buckley did not believe the bill expressed that. She referred to the language “the health care facility shall not collect or seek to collect from the patient any fees and costs.” She indicated the language did not say a doctor was prohibited from contacting a patient to require them to submit something to their insurance company to supply more information. She did not see where that was an issue and she did not think the language did that.
Assemblywoman Giunchigliani said she agreed and that she appreciated Mr. Hettrick working with her on this. She thought the hospitals just wanted to be able to give “due notice.” She tended to agree with Ms. Buckley and she thought the bill did not say that hospitals could not do that. The language submitted did not fully express that because it set a different precedent and it said a hospital could bill the individual. She explained that they could not do that if they were under a contract. She explained that all this was talking about was for those that were under a contract. Ms. Giunchigliani asked Mr. Hettrick if a qualifier that stated, “the intent is not effective,” would be necessary.
ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO AMEND AND DO PASS A.B. 70, WITH THE FOLLOWING AMENDMENTS:
· PAGE 1, LINE 6, INSERT THE WORD “COVERED” BEFORE THE WORD “HEALTH.”
· PAGE 1, LINE 9, INSERT THE WORD “COVERED” BEFORE THE WORD “HEALTH.”
· PAGE 2, DELETE LINES 4 THROUGH 9.
ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.
Chairman Goldwater asked for further discussion on the Giunchigliani-Leslie motion. There was none.
THE MOTION CARRIED UNANIMOUSLY.
Assembly Bill 89: Removes exemption for landlords who own and personally manage four or fewer residential dwellings from provisions relating to landlords and tenants. (BDR 10-952)
Vance Hughey indicated A.B. 89 was the bill that removed the exemption for landlords who owned and personally managed four or fewer residential dwellings from provisions related to landlords and tenants; there were no proposed amendments to the bill.
ASSEMBLYWOMAN LESLIE MOVED TO DO PASS A.B. 89.
ASSEMBLYWOMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED, WITH MR. HETTRICK AND MR. KNECHT VOTING NO.
Assembly Bill 139: Makes various changes concerning certain providers of utility service. (BDR 58-494)
Diane Thornton, Senior Research Analyst, Legislative Counsel Bureau, went through the proposals. She explained that A.B. 139 had several amendments. A.B. 139 made various changes concerning certain providers of utility service. The first amendment was from Timothy Hay, Bureau of Consumer Protection. Mr. Hay wrote a letter (Exhibit C) concerning the agreement between Desert Inn Improvement Company (DIIC) and Desert Inn Country Club Estates. He concluded that the homeowners would have adequate remedy under the contract, if DIIC should fail to meet their obligations.
She stated that Chairman Goldwater made the second amendment. He asked that the bill be amended as follows: “Provide that, in an action to enforce terms of an agreement to furnish water or dispose of sewage, if the customer was the prevailing party, he was entitled to reasonable attorney fees and court costs if the agreement was between; a) a business exempted from the definition of “public utility” pursuant to subsection 3 of Section 1 of the bill; and b) a customer of that business.”
Fred Schmidt, representing Valvino Lamore LLC, submitted the third amendment, (Exhibit C). He had been working with Assemblywoman Buckley and Speaker Perkins on the amendment, which essentially deregulated financial controls. Judy Stokey and Kathleen Drakulich from Sierra Pacific/Nevada Power, provided the fourth amendment, which changed three different things:
Ms. Thornton indicated that Susan Fisher of Barrick Goldstrike Mines had proposed that the time allowed for the entry of the final order of the application relating to the sale remain at 90 days (Exhibit C).
The sixth amendment (Exhibit E), Ms. Thornton explained, was from Stephanie Swain, resident of Desert Inn Country Club Estates, who had two suggestions:
Chairman Goldwater explained that Section 3 of A.B. 139 touched on law passed last session, known better to most as A.B. 661 of the 71st Legislative Session. A special Committee had spent a number of hours coming up with public policy concerning A.B. 661 of the 71st Legislative Session. Unless there was an underlying, overwhelming technical public interest in changing the provisions or time lines of A.B. 661 of the 71st Legislative Session, Chairman Goldwater preferred to “let the dust settle from that legislation, let the public policy take effect, and not step on the toes of the able work of his colleagues in the past.” He then asked Dave Noble from the PUC if the consequences would be too great if the Committee chose to hold off on that section of the bill. Mr. Noble stated that it would not. He indicated that the PUC had been working within the guidelines of the bill to that point, and the reason they originally proposed the language of Section 3, changing it from 90 to 150 days, was due to problems the PUC had encountered over the last year and a half. It was the PUC’s only reason for inserting Section 3.
Chairman Goldwater stated for the record that in the Committee members’ work session document there should be two letters (Exhibit C). One of the letters from Mr. Hay explained that he had reviewed the contract for the provision of water to the residents in the Desert Inn Estates, and he stated that the contract was sufficient for the provision of water. Additionally, Chairman Goldwater asked Wil Keane to review that contract as well and asked him to comment on Mr. Hay’s letter.
Wil Keane stated that he and the Legal Division agreed that the homeowners in question would continue to have a contractual arrangement with DIIC. The agreement would make sure the DIIC provided the water and sewage services pursuant to that agreement. To the extent that Mr. Hay reached that conclusion, which the Legal Division believed that he did, they agreed with the conclusion. Moving beyond that to the question of whether the homeowners would be protected, the Legal Division was not in position to say whether or not the protections that would remain would be “adequate” or not. That would be a judgment call, Mr. Keane thought. The homeowners would have every contractual protection that one would expect for a person in a contract. They could go to court, they could hire an attorney, they could have the contract enforced, and the contract specifically said that the DIIC would provide water. What they would not have, if the DIIC was no longer a public utility, was the protection of the Public Utilities Commission, the district attorney, and the Attorney General to enforce the provisions of current statutes and regulations that do such things as require the DIIC to provide adequate service. That was something that was in the contract, but with the DIIC being a public utility, the homeowners did not have to go to court to have that enforced. Furthermore, while the contract said that the rates needed to be reasonable, it also said that the reasonability of the rates would be determined by the DIIC. If the homeowners did not like that, then they would have to go to court. With the DIIC being a public utility, they would have to have those rates approved as reasonable by the PUC. There were various other protections that were provided in statutes. Those protections would be gone if the DIIC were no longer a public utility. That was not to say that the homeowners would not have their contractual rights; they would. They simply would not have the protections that were provided in statute, Mr. Keane concluded.
Chairman Goldwater asked Fred Schmidt, Desert Inn Improvement Company, if he had had the time to review the proposals made by Assemblywoman Buckley regarding an exemption of financial transactions. Mr. Schmidt indicated that he had. To him, the proposals would exempt the major problem that was occurring in terms of financing by exempting his company from the financing statutes that required them to make what they believed were unnecessary filings regarding new financings and changing of control. They did not exempt them from any other of PUC regulations, which would include rate regulation and all the other powers that the PUC had over them; they would remain a public utility. He had talked with his client and although they preferred the original bill, which was to get out of PUC regulation altogether for a utility that served only 11 customers, it would be acceptable to his client, in order to deal with the short-term problem. It would adequately solve that and still give the homeowners the type of protection they had today. He had seen the two amendments that were there and he believed that one or the other would be acceptable to his company. He did not think that both were necessary.
Chairman Goldwater asked Mr. Keane and Ms. Thornton if it were possible to draft that kind of amendment and they agreed. Chairman Goldwater then entertained a motion to amend the bill by deleting Section 3 and taking Ms. Buckley’s and Mr. Perkins’ suggestions that the Committee exempt this particular utility from the financial regulations at the PUC.
ASSEMBLYMAN PERKINS MOVED TO AMEND AND DO PASS A.B. 139, WITH THE FOLLOWING AMENDMENTS:
· PAGES 3, 4, AND 5; DELETE SECTION 3.
· EXEMPT THIS PARTICULAR UTILITY FROM THE FINANCIAL REGULATIONS AT THE PUC.
ASSEMBLYMAN HETTRICK SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Assembly Bill 145: Revises procedure for distribution of assessments collected on behalf of Consumer’s Advocate of Bureau of Consumer Protection in Office of Attorney General. (BDR 58-486)
Chairman Goldwater opened A.B. 145 and asked Diane Thornton to go over the amendments. Ms. Thornton stated that A.B. 145 revised procedures for distribution of assessments collected on behalf of the Consumer Advocate’s Office. She indicated that Dave Noble of the PUC had requested that the bill be amended to make it effective July 1, 2003. Mr. Goldwater asked the Committee for discussion.
Assemblywoman Giunchigliani thought that A.B. 145 needed to be sent over to the Assembly Committee on Ways and Means after passage because there was some consolidation that might affect the bill.
ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO AMEND AND DO PASS A.B. 145, WITH THE FOLLOWING AMENDMENT:
· CHANGE THE EFFECTIVE DATE TO JULY 1, 2003.
ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Assembly Bill 146: Revises requirements for licensure as professional engineer or land surveyor. (BDR 54-496)
Chairman Goldwater opened the hearing on A.B. 146 and asked if there was anyone there to testify. There was not, so he closed the hearing on A.B. 146.
There being no further business, Chairman Goldwater adjourned the meeting at 12:24 p.m.
RESPECTFULLY SUBMITTED:
Corey Fox
Committee Secretary
APPROVED BY:
Assemblyman David Goldwater, Chairman
DATE: