MINUTES OF THE meeting

of the

ASSEMBLY Committee on Elections, Procedures, and Ethics

 

Seventy-Second Session

February 6, 2003

 

 

The Committee on Elections, Procedures, and Ethicswas called to order at 3:47 p.m., on Thursday, February 6, 2003.  Chairwoman Chris Giunchigliani presided in Room 3138 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Guest List.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

 

COMMITTEE MEMBERS PRESENT:

 

Ms. Chris Giunchigliani, Chairwoman

Mr. Marcus Conklin, Vice Chairman

Mr. Bernie Anderson

Mr. Bob Beers

Mr. Chad Christensen

Mr. Tom Grady

Ms. Kathy McClain

Mr. Bob McCleary

Ms. Peggy Pierce

Ms. Valerie Weber

 

COMMITTEE MEMBERS ABSENT:

 

None

 

GUEST LEGISLATORS PRESENT:

 

None

 

STAFF MEMBERS PRESENT:

 

Michelle Van Geel, Committee Policy Analyst

Kim Guinasso, Committee Counsel

Marge Griffin, Committee Manager

Kelly Fisher, Committee Secretary

Cindy Clampitt, Committee Secretary

 

OTHERS PRESENT:

 

Stacy Jennings, Executive Director, Nevada Commission on Ethics

 

Chairwoman Giunchigliani opened the meeting as a subcommittee.  Introductions were made of staff members Marge Griffin, Committee Manager; Kelly Fisher, Committee Secretary; Michelle Van Geel, Committee Policy Analyst; and Kim Marsh Guinasso, Committee Counsel. Chairwoman Giunchigliani noted that Assemblyman Beers had arrived and that a quorum was present. 

 

ASSEMBLYMAN CONKLIN MOVED TO ADOPT THE STANDING COMMITTEE RULES.

 

ASSEMBLYWOMAN WEBER SECONDED THE MOTION.

 

THE MOTION CARRIED. (Mr. Anderson, Mr. Grady, Ms. McClain and Ms. Pierce were not present for the vote.)

 

Standing Rules are included as Exhibit C.

 

Chairwoman Giunchigliani mentioned a budget presentation recently given by the Ethics Commission.  In the Governor’s Budget, he recommended the Ethics Commission move to the Attorney General’s Office.  Chairwoman Giunchigliani referred to a newspaper article in which the Attorney General said he was not trying to capture any new business, and that he was more than willing to leave the Commission where it was currently located.

 

Stacy Jennings, Executive Director, Nevada Commission on Ethics, provided Committee members with a presentation (Exhibit D) outlining the following duties and responsibilities of the Commission:

 

• Interpret and provide guidance on the provisions of Ethics in Government Law
• Administer statutes dealing with campaign practices
• Accept financial disclosure statements of public officers

 

Ms. Jennings stated the Ethics Commission was established by the Legislature in 1975 and served in a quasi-judicial capacity (Exhibit E).  There were eight members on the Commission. The Legislative Commission appointed four members, and the Governor appointed four members.  Of the four members appointed by each branch, at least two had to be former public officers and one had to be an attorney.  Additionally, not more than four of the members in total could be from the same county or political party.  The Commission was designed to have a fair balance between rural and urban parts of the state and a fair balance between the political parties.

 

According to Ms. Jennings, members serving on the Commission were prohibited from holding any other political office, could not be active in the work of any political party or campaign, and could not communicate with anyone in the Legislature on behalf of anyone other than themselves or the Commission.  Political contributions were not considered active involvement.

 

Ms. Jennings stated that all fifty states, the federal government, and many local jurisdictions had bodies similar to the Ethics Commission to govern the conduct of public employees.  She pointed out that the definition of legislative intent could be found in Nevada Revised Statutes (NRS) 281.421, and the definition of public officer could be found in NRS 281.4365 (Exhibit F).  Ms. Jennings went on to say that no judges or officers of the court system were regulated by the Ethics Commission, as they had their own body, the Commission on Judicial Discipline.  The Ethics in Government Law did not govern any person serving in a purely advisory capacity.  This included certain general improvement bodies that did not have budgetary authority and county health officers.

 

Chairwoman Giunchigliani asked what the difference was between the Nevada Commission on Ethics and the Judicial Ethics Commission. Ms. Jennings responded that under the judicial canons, they had hearings that were closed, and she did not know if they were ever made public.  Chairwoman Giunchigliani said she found it interesting that they would hold themselves to a different standard and conduct business in secret.

 

Ms. Jennings said the Ethics Commission also governed the conduct of public employees. She defined public employees as people who performed public duties for compensation at any level of government whose actions were directed and controlled by a public officer.  The distinction between public officers and public employees was important when it came to filing financial disclosure statements (Exhibit G).  Ms. Jennings said all candidates must have filed with her office by March 31 for calendar year 2002.  She stated that public officers had to complete the form, but public employees did not have to file.  The only caveat was that if a person were not entitled to receive compensation for public office, that person would not have to fill out a financial disclosure statement.  For candidates, the forms were due ten days after the close of filing for public office.  If forms were not filed in a timely manner, substantial penalties would apply.

 

Ms. Jennings listed the three types of opinions issued by the Ethics Commission:

• First Party or Advisory Opinion Request.  This was a tool public officers used to help stay in compliance with the Ethics in Government Law.  Specific facts and circumstances could be submitted confidentially to the Commission for consideration.  The Commission would then render an opinion about conduct and how to stay out of trouble.  If an opinion issued by the Commission was violated, it would then be considered a violation of the Ethics in Government Law.
• Third Party Request or Ethics Complaint.  A person would file this type of complaint against a public officer if they thought his actions, conduct, or business practices had violated the provisions of the Ethics in Government Law.  The complaint would be submitted to the Ethics Commission, who would then mail it to the public officer in question, who in turn would have a chance to respond to the Commission in writing within 10 days.  According to statute, the Commission would make an attempt within fifteen calendar days of receiving a complaint to get a response from the public officer and to complete an investigation into the allegations and send their findings to a panel for review. This was done to expedite the process for people in public office.  (Exhibit H). Two members of the Commission would form a panel to study the investigative report, then make a recommendation to the full Commission as to whether they found just and sufficient cause for the complaint or an actual violation.  The complaint could then be dismissed or be forwarded to the full Commission for hearing by the remaining six members of the Commission.  The two members who had comprised the panel would be excluded from the discussion of the ethics complaint.  If a public official were subsequently found guilty of a willful violation of law, a first offense would result in a civil penalty of $5,000, a second offense would be $10,000, and a third offense would result in a fine of $25,000.
• Campaign Practices Complaint or Third Party Opinion Request.  This complaint would be filed when a person alleged a candidate had published a false statement of fact, that it was done with actual malice, that it was done to impede the success of a campaign, and that it actually did impede the success of a campaign.  The candidate would be notified by the Commission the day the complaint was filed.  The candidate would then have two days to submit a written response to the Commission, who would then hold a full hearing.  Campaign practices complaints were subject to judicial review.  There would be recourse through the judicial system.

 

Ms. Jennings listed the Nevada Revised Statutes over which the Commission had jurisdiction and described the content of some of the statutes.  The Commission would help people determine whether they had a conflict of interest.  She defined the terms “conflict of interest,” “appearance of impropriety,” and “pecuniary interests.” 

 

Assemblyman Anderson asked Ms. Jennings that if he had a letter on file stating he was an educator, would he have to disclose that fact at a public meeting at least once.  He further asked if it would be incumbent upon him to redisclose each time there were an educational vote.

 

Ms. Jennings replied that, according to the statute, if he disclosed it in one public meeting and then filed it in writing, he would not have to disclose it at any other time; if he did so, it would be as a matter of courtesy.  She told him he could put a more detailed disclosure on file in writing and then make a brief disclosure at any time the issue arose.

 

Chairwoman Giunchigliani stated that during the last session, they had tried to create a list of all Assembly members who were members of PERS.  She said she would check with Lorne Malkiewich, Director of the Legislative Counsel Bureau (LCB), to see how that process could be simplified.  She said that on the Floor, one person had been selected to disclose a list of names.  She thought perhaps such a disclosure could be made in a simplified manner at the beginning of the Floor session, and then affected members could complete their disclosure statements to correspond.  She said she would pursue it.

 

Chairwoman Giunchigliani then introduced a student government class from the Sierra Nevada Job Corps Center in Reno and their advisor, Greg Martin.  She welcomed them and thanked them for coming.

 

Ms. Jennings discussed an opinion issued by the Commission regarding NRS 281.501.  The statute was written to allow a public official with a pecuniary interest in a given matter to provide information on the subject without advocating any particular position.  The statute was written this way so that officials could effectively represent their constituents, which could be problematic if they had to continually disclose and abstain from votes.

 

Ms. Jennings spoke about the Commission’s current budget.  The Commission was projecting an increase in opinions issued, overall number of requests filed, first party advisory requests, and party ethics complaints.  She said her position was required by statute to conduct educational training seminars.  The local governments seemed to be looking for this kind of guidance and appreciated receiving the training.  She also worked with some of the state agencies to do some training for the Executive Branch.

 

Ms. Jennings discussed the Commission’s BDR 23-500, which was in the final stages of review by the Legal Division of the LCB.  It proposed lowering the civil penalties for late filings by candidates.  They also proposed a change in the due date for filing and codifying enforcement of the Financial Disclosure Statement program.  She also said they were trying to change the deadlines for the Third Party Opinion Requests because fifteen calendar days made it difficult to submit the complaint to the panel in a timely manner.  The Commission wanted to take the deadlines out completely or extend them.  Ms. Jennings said she always tried to expedite such matters for public officers.  Often, when a complaint was submitted to the Commission about someone, the person who submitted it would send it to the newspapers and the Commission could not comment on it.  This caused a lot of concern.

 

Statute required the collection of money for Ethics in Government Law seminars, but Ms. Jennings stated there was not a lot of money in government.  Whenever she traveled to give a seminar, she scheduled those trips to coincide with other Commission business so it did not cost the Commission an extra amount.  If an outside group requested a seminar, she did ask them to reimburse her travel costs, but she had not been charging the local governments.  She said she would like to change the wording in the statute from “shall” to “may.”  The Commission would also like to remove provisions the district court had struck down that were no longer enforceable because they had been declared invalid by the court.

 

Ms. Jennings said the Commission’s Web site contained printable financial disclosure statement forms, complaint forms, and the full text of the Commission’s opinions as far back as 1992.  They were currently in the process of posting the text of their opinions back through 1975.

 

Assemblywoman Weber thanked Ms. Jennings for putting the packet together.

 

Assemblyman Christensen asked if the Secretary of State’s office had anything to do with campaign ethics complaints, or if they were handled exclusively by the Ethics Commission.

 

Ms. Jennings responded that it depended on the type of complaint.  The Ethics Commission handled provisions dealing with someone making or publishing false statements, either written or oral.  She stated there were certain guidelines set forth under NRS 294A.345, which specifically defined the false statements of fact concerning candidates that could not be published.  Subjects dealing with election contributions and expenditures were under the jurisdiction of the Secretary of State, but they were not involved with the campaign practices complaints at all.

 

Chairwoman Giunchigliani said she appreciated the fact that Commission opinions were now posted online.  She asked if the Commission had considered the repeal of NRS 294A.345 in their BDR. Ms. Jennings stated they had not.  She said the Commission had some concerns about the law that were currently involved in litigation, so they had not made recommendations on amending or repealing any provisions in NRS 294A. 

 

Chairwoman Giunchigliani asked what would happen if someone never filed a disclosure statement.   Ms. Jennings replied that in the past not much had been done because the Commission had not known who they were.  Through the election cycle, they found out who the candidates were, and they informed them that they had not filed.  They were doing the same this year with their public officer database.  If people did not file, they would know because they were now able to crosscheck.  Ms. Jennings stated they were making candidates aware of filing requirements through seminars, postcards, and other reminders to enable 100 percent compliance with the law.

 

Chairwoman Giunchigliani asked if people serving on two different commissions would have to fill out the same paperwork.  Ms. Jennings said a number of people came in on several different lists, and her office would do a search by name and delete the people with the same names.  Chairwoman Giunchigliani thought that was a good idea as rural public officers were probably hit the hardest with fines.  Ms. Jennings said it would limit the amount of civil penalties to be capped at the annual compensation.  She gave as an example of someone who was on a board that met four times a year and made $80 a meeting, who could potentially be fined a maximum of $320.

 

Assemblyman Anderson stated that as a result of their legislative duties, the members were often appointed to represent the Assembly on a Governor’s Task Force or a judicial commission that had a separate set of responsibilities aside from legislative responsibilities.  He asked if they were required to list all of those boards and commissions.  Ms. Jennings said they were only required to file for those positions that would qualify as a public office.  Therefore, advisory groups were specifically exempt from the definition of a public officer.  If a person were being compensated for serving on a committee, and they were formulating policy and expending money and exercising administrative discretion, that person might consider listing that committee.  It would not require a separate filing.

 

Assemblyman Anderson asked if it were dependent upon whether compensation came through the Legislature or through the Governor’s office.  Ms. Jennings thought that was a good differentiation.  She said by “compensation” she meant a stipend for attending a meeting.  It did not mean reimbursement of travel costs.

 

Chairwoman Giunchigliani reiterated that the reason there were no definitions for conflict of interest and pecuniary interests was because they would become standard and would block the Commission’s ability to go beyond that in law.  Ms. Jennings agreed.  She said the reason she gave generic definitions at her compliance seminars was because many people did not understand what a conflict of interest or appearance of impropriety was. 

 

Chairwoman Giunchigliani asked if Ms. Jennings participated in beginning legislative training.  Ms. Jennings said she had spoken to Brenda Erdoes in the Legal Division of the LCB about participating, but timelines prevented it.  Ms. Giunchigliani said it would have been a good idea for both new and experienced legislators, especially using role-playing.

 

Assemblyman Anderson said he was under the impression that the current freshman group had legislative training as part of the program from Kim Morgan’s extensive presentation.

 

Chairwoman Giunchigliani agreed that Kim Morgan did a great job but she thought since the Ethics Commission was the final source for making a determination, it would have been good to have had them at least work with staff to present some of that discussion because they made the rulings.

Assemblyman Grady believed that Kim Morgan of the Legal Division of the LCB intended to come back and continue with training updates if the legislators could find the time in their schedules.

 

Chairwoman Giunchigliani adjourned the meeting at 4:32 p.m.  

 

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                           

Kelly Fisher

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Assemblywoman Chris Giunchigliani, Chairman

 

 

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