MINUTES OF THE meeting
of the
ASSEMBLY Committee on Government Affairs
Seventy-Second Session
May 8, 2003
The Committee on Government Affairswas called to order at 8:18 a.m., on Thursday, May 8, 2003. Chairman Mark Manendo presided in Room 3143 of the Legislative Building, Carson City, Nevada, and via simultaneous videoconference, in Room 4406 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.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Mark Manendo, Chairman
Mr. Kelvin Atkinson
Mr. Chad Christensen
Mr. Tom Collins
Mr. Pete Goicoechea
Mr. Tom Grady
Mr. Joe Hardy
Mr. Ron Knecht
Mrs. Ellen Koivisto
Mr. Bob McCleary
Ms. Peggy Pierce
Ms. Valerie Weber
COMMITTEE MEMBERS ABSENT:
Mr. Wendell P. Williams, Vice Chairman, excused
GUEST LEGISLATORS PRESENT:
Senator Sandra Tiffany, Clark County Senatorial District No. 5
STAFF MEMBERS PRESENT:
Susan Scholley, Committee Policy Analyst
Eileen O'Grady, Committee Counsel
Nancy Haywood, Committee Secretary
OTHERS PRESENT:
Bob Cashell, Mayor, The City of Reno
Nicole Lamboley, Legislative Relations Program Manager, Office of the City Manager, The City of Reno
Roberta Ross, Downtown Development Association of Reno
Randy Robison, Government and Legislative Affairs, Capital Strategies, The City of Mesquite
James Ellis, Executive Director, Las Vegas International Scouting Museum
Robert L. Horne, M.D., President, Las Vegas International Scouting Museum Board of Directors
Dan Musgrove, Director, Office of the Clark County Manager, Las Vegas
Mary Lou Bentley, Executive Director, Western Nevada Development District
John W. Sanderson, Executive Director, Lyon County Economic Development Authority, President, Western Nevada Development District
Mary Walker, Lobbyist, Carson City, Douglas, and Lyon Counties
Gary H. Wolff, Lobbyist, Nevada Teamsters Local 14, Nevada Highway Patrol Association
Jeanne Greene, Director, State of Nevada Department of Personnel
Scott MacKenzie, Executive Director, State of Nevada Employees Association
Chairman Manendo:
Good morning. Welcome to the Assembly Government Affairs Committee. Please call the roll. [Roll was called.] Please mark Mr. Williams excused, Mr. Collins and Mr. Knecht present upon arrival.
Turning to our agenda, the hearing on Senate Bill 424 is now open. The bill will be introduced by Mr. Cashell. Good morning.
Senate Bill 424: Revises provisions relating to composition of membership of redevelopment agency. (BDR 22-1270)
Bob Cashell, Mayor, City of Reno:
[Introduces himself.] We were the ones who requested this enabling legislation to expand our redevelopment agency by adding some private sector people to it who have experience in banking or accounting, construction, and development. They would be added to the seven-member council that serves as the agency now. It would give us the flexibility to go up to no more than 11 people. Right now, the city council sits as the redevelopment agency. We are proposing to add four people to that group to get more expertise in development, construction, financing, and the legal end of it. I am here to support the bill and request that you support it.
Chairman Manendo:
Thank you for being here this morning.
Nicole Lamboley, Legislative Relations Program manager, City of Reno:
Senate Bill 424 is enabling legislation. It does not change anything in the current law that would allow the redevelopment agency to be either the governing body of the entity or an appointed body. This would create a third option that a governing body could consider to create its redevelopment agency.
Bob Cashell:
The City of Reno appreciates your support. The City is doing very well. We are really excited. We have a council that has a real consensus to develop the river and clean up the city, to make redevelopment progress. Regarding the old Mapes lot, we are looking for qualifications of designers and engineers to design a plaza on the old Mapes property. Also, we are working with the Corps of Engineers to redevelop the river to do away with and mitigate some of the flood problems we have. It is really exciting. There is a real consensus on the council to make things happen right now.
Assemblywoman Weber:
I had a comment. I wanted to compliment you, Mayor Cashell, on your program, since this is the year of your Centennial, that you are doing to clean up, the Green and Clean campaign. I actually met some of the folks who were doing that a couple of Saturdays ago who were getting the young people involved in making Reno even a better place. My family lives there, and I am aware of that. Thank you for doing that campaign.
Roberta Ross, representing the Downtown Improvement Association, Reno:
The association is an advocacy group for the redevelopment area. We concur with what Ms. Lamboley and Mayor Cashell have said. We look forward to these four positions on the agency board and think that the expertise will help the city council go forward with making development decisions.
[Roberta Ross continues.] I also would like to say that I am a resident in downtown Reno within the redevelopment area, and I have a business in the area, also. As a resident and a business owner, I also support the proposal to add the four members onto the board.
Randy Robison, representing the City of Mesquite:
We are here both to support the bill and to propose an amendment that we have talked with sponsors of the bills about. I also had a conversation with the Chairman. The amendment being proposed and distributed to you now, because of the way the statute is constructed, has a lot of extra language. The language we are looking at is on the second page (Exhibit C).
This amendment was actually Senate Bill 335 proposed and sponsored by Senator Hardy in the Senate Government Affairs Committee. We had worked with the interested parties on that side, had come to an agreement, and we were hopeful that both the votes and the agreement would be upheld. That was not the case.
We spoke with the interested parties again and asked them if they would allow us to bring this amendment on this side for your consideration when attached to this bill. They agreed to that again.
What the amendment does is allow small municipalities to increase the percent of assessed valuation within the redevelopment area so that they can continue their efforts in redevelopment. You will notice that on subsection 2, subparagraph (b), there is a population cap change. Currently there is a 100,000-population cap to allow for a 15 percent accessed valuation. We are proposing to change that to 50,000 and then allow those municipalities of 50,000 or less to go to a 20 percent assessed valuation of their redevelopment area. That allows us to continue with our progress in the redevelopment areas. In the smaller cities, as you know, redevelopment helps them grow in their tax base both inside and outside the redevelopment area.
We are proposing, in subsection 2, subparagraph (c), in a municipality whose population is less than 50,000, an amount equal to the combined tax rates of the taxing agencies for that fiscal year multiplied by 20 percent of the total assessed valuation of the municipality. Currently, in Mesquite, we are bumping up against the existing 15 percent cap. Had it not been for some of our properties within the redevelopment area devaluing their property, we would be exceeding that cap. The redevelopment area would be losing money, which would further impact our ability to grow.
[Randy Robison continues.] In assessing other redevelopment areas around the state, Mesquite is the only one that is in this situation. We will probably be the only one in this situation for long into the foreseeable future. Most other redevelopment agencies are not anywhere near that 15 percent cap. We talked with the sponsors of the bill and they agreed to let us try. We propose this for your consideration.
Chairman Manendo:
Senate Bill 335 was the same as the amendment? Or, is the amendment the same as the “amended” S.B. 335 that failed?
Randy Robison:
This proposed amendment that you are looking at is the amended version of Senate Bill 335. The amendment, in subparagraph (c), took the cap from 25 percent to 20 percent. We also agreed to drop that population cap from 50,000 down to 35,000 so there would be a natural sunset if the Legal Division would allow us to do that. If they would rather keep it at 50,000 for consistency, that will be fine as well.
Chairman Manendo:
We will need time to look at that.
Assemblyman Grady:
What was the problem in the Senate? Why did Senator Hardy have the problem of getting this through the Senate?
Randy Robison:
There were several bills in the Senate that were dealing with redevelopment. This was one of them. We were actually a bit surprised that it did fail in the end. We had worked extensively with the chairman and other interested parties and had reached this agreement. We felt that it was going to be successful. On that very same day, there was another bill up that dealt with a similar issue in trying to help rural areas of the state, and that bill sailed through. Ours came up right after it. It was not successful. As you know, there is some concern about the way in which redevelopment is currently being used. I think at the end of the day, some of the concerns were not addressed to the satisfaction of the committee.
Chairman Manendo:
[As no one else indicated a desire to speak to Senate Bill 424,] we will close the hearing on Senate Bill 424, and the Legal Analyst is looking into the possibility that this amendment will not be germane to S.B. 424. At this point, we do not have an answer. We might before the day is over.
[Chairman Manendo continues.] We have two of Senator Amodei’s bills and one piece of legislation from Senator Tiffany. I do not know if the senators wish to speak. Mr. Wolff, which bill are you here to support? I do not have one person signed in on Senate Bill 328. [A member of the audience stated that she was present to speak on that bill.] Who is on to speak for Senate Bill 103? I don’t have anyone signed in to speak on S.B. 103, except someone in Las Vegas. We are waiting to see if Senator Tiffany is planning on introducing her bill. Did you have a discussion with her? [The question was addressed to James Ellis in Las Vegas.]
James Ellis, Executive Director, International Scouting Museum:
I talked with her office yesterday. My understanding was that she would be [in your committee].
Chairman Manendo:
She is not here, so we will look for her. Can you stay a little while or are you on a schedule?
James Ellis:
Absolutely. I am more than willing to stay.
Chairman Manendo:
Someone is looking for both senators. We will see which one can come up first. Until we get word that they do or do not want to talk about their bills, we will stand in recess.
Chairman Manendo:
We are back from recess. We were just informed that you were not going to be able to be here, that Senator Tiffany was in a meeting, and that your bill would be introduced by Mr. Ellis in Las Vegas. Since you are here, we will open the hearing on Senate Bill 103. Senator Tiffany.
Senate Bill 103: Extends time county may lease real property of county to corporation for public benefit under certain circumstances. (BDR 20-831)
Senator Sandra Tiffany, Clark County Senatorial District No. 5:
Good morning, Committee. Is Jim up? I am going to have him handle most of the testimony. Thank you for letting me kick off my bill. Because we don’t have a quorum right now in Senate Finance, I need to get back as soon as I can.
[Senator Tiffany continues.] Senate Bill 103 came about and is really for the Boy Scouts. I happened to be in a meeting with a doctor who asked if I would be interested in introducing this bill. What happens is that when a group has land donated to it by the city or by the county, and it wants to put a Boy Scout building on it, the land usually has to be considered not given to them but leased. For them to get bonding or to put any sizeable building up there, they needed to go from 30 years to 99 years on a lease. So, it is a really simple bill, and that was the reason for it. Mr. Ellis, in Las Vegas, can fill in all the details for you.
Chairman Manendo:
Thank you. I just didn’t want to start a piece of legislation without the sponsor having an opportunity to speak if you wanted to. Good morning, Las Vegas.
James Ellis, Executive Director, Las Vegas International Scouting Museum: [Introduces himself.] Dr. Horne, who was scheduled to speak, was unavoidably detained, so I am filling in for him. He may be joining us shortly. In the interim, I will go ahead and speak.
The purpose of this bill, as Senator Tiffany mentioned, is very simple. The current legislation allows for a county to lease surplus property that it owns for a period not to exceed 30 years. Approximately two years ago, at the Seventy-first Legislative Session, the Legislature gave counties the authority to grant outright, subject to some restrictions on use, surplus property. What has come about now is that we have found that there is some surplus property that is burdened by the right of first refusal, because the property was obtained through eminent domain. In that instance, when the county attempts to give the property to the charitable organization, the prior owner may exercise that right and frustrate the intent of the county to make the property available for civic purposes. The purpose of this bill allows counties to lease, for a period of up to 99 years, and, thereby, not triggering such rights of the prior owners.
Alternatively, or in addition, when that does occur, when there is a 30-year lease, finding funding for building major structures of several millions of dollars is very difficult, because organizations that do fund these kinds of construction projects do not want to give major sums if they know that the useful life of the building may be 25 or 26 years. That would be because of the lead time it takes to raise the funds, do the construction, and actually move in. What we are doing is asking that counties be given the expanded right to lease property to organizations such as ourselves for a period of up to 99 years. This bill has passed through the Senate unanimously, and we would ask your support for this legislation.
Assemblyman Goicoechea:
I am wondering why it was limited just to counties and not all public bodies. Would that allow cities or even the state to have that opportunity?
James Ellis:
I think the existing legislation, NRS 224.284, only refers to counties. I believe the rights of cities may fall under their own charters or under a separate statute.
Assemblyman Goicoechea:
I would agree with that. I was just wondering why we didn’t expand to some of the other statutes and give everyone the ability to lease for 99 years.
Assemblyman Knecht:
This time I will support your bill.
Chairman Manendo:
Thank you. [Senator Tiffany returned to her own committee.] We will close the hearing on Senate Bill 103. The Chair will entertain a motion.
Assemblywoman Koivisto:
I am just wondering if there is a piece of property that is involved here, and we are getting into something. If the bill is a generic thing, fine. I can support it then. But, if this is about a specific piece of property involved, and we could be being used to do something specific, that would be my concern.
Chairman Manendo:
We will reopen the hearing on Senate Bill 103. Mr. Ellis?
James Ellis:
Yes, Mr. Chairman. Dr. Horne has joined us, so I am going to let him speak. He is the President of the Museum Committee Board of Trustees. I will allow him to address that.
Robert L. Horne, President, Las Vegas International Scouting Museum Board of Trustees:
I had already given written testimony and didn’t want to say the same thing Mr. Ellis had said, but I am happy to try to answer the question.
The Clark County Commission had unanimously granted a 30-year lease on property for the museum on Paradise, next to the property they had given to Boulder Dam Area Council for their new $6.5 million dollar building. That is the specific property, but we had the difficulty of approaching individuals as potential donors, because they did not want to give us the nearly $9 million involved if it was only for a period of 30 years on the lease instead of 99 years.
Chairman Manendo:
Who did you provide written testimony to?
Dr. Robert Horne:
It was provided to Senator Tiffany’s office, and they were to distribute it to the Committee this morning.
Chairman Manendo:
I do not have anything on Senate Bill 103. I guess her office did not do that for you.
Dr. Robert Horne:
I can fax that to you.
Chairman Manendo:
That’s fine. Since there is written testimony, we would like to get a chance to read it (Exhibit D). I cannot speak for why her staff did not provide this Committee with that information.
Dr. Robert Horne:
Since you have not received it, let me address some of the issues. Approximately two years ago, the Legislature amended the statute to give counties the power to donate excess county property to corporations for public benefit, to be used for charitable or civic purposes. On behalf of all such organizations in Nevada, we would like to thank the Legislature for this, especially the members of this Committee, who supported the prior amendment.
Unfortunately, the amendment did not take into consideration the situation where the property to be given for charitable purposes had been obtained by a county through its use of eminent domain powers. As currently written, the statute allows counties to either donate excess property or lease it for a term not to exceed 30 years. As we mentioned earlier, that created a potential problem when the property was obtained through eminent domain proceedings; if the county attempts to donate it, it triggers certain rights of the prior owner to repurchase it. If, on the other hand, the county grants the 30-year lease, the charitable organization faces an uphill struggle to obtain funding since the duration of the lease is so short. That was the purpose of S.B. 103, to attempt to correct this problem by extending the period of time that the county can grant this lease from 30 years to 99 years. We believe that would give counties greater flexibility to make excess county property available to charities, and, also, it enhances the ability of a charity to obtain funding for major capital improvements through donations and long-term financing.
Assemblywoman Koivisto:
So, I guess that what we are talking about is some property that Clark County took by eminent domain, and now they want to turn it over to the Boy Scouts?
Dr. Robert Horne:
A small portion of the nine acres that had been leased was taken by eminent domain, and that is the difficulty; it was not all obtained through the usual channels.
Assemblywoman Koivisto:
Maybe this is kind of far afield but, if the county didn’t need it for something, I am confused as to how they took something by eminent domain that they weren’t going to use that they can now turn over to somebody else.
Dr. Robert Horne:
It was taken to build Interstate 215. This property is immediately adjacent to Interstate 215, and this portion of the land is triangular-shaped and is right next to the Interstate. While it is suitable for us to build a museum on, it apparently was designated excess property.
Chairman Manendo:
We are going to wait, as I want everyone to have an opportunity to read your written testimony. Are there any other questions, Committee, on S.B. 103?
Dan Musgrove, representing Clark County:
Clark County does support the sponsors and the bill. We just want them to be able to get their facility and get the donors. We support what they are trying to do.
Chairman Manendo:
I will close the hearing on Senate Bill 103 once again. We know now that Senator Amodei will not be here to introduce his legislation, which is fine. We just wanted to give one of our colleagues an opportunity to speak to a bill.
On S.B. 424, it does not look like the amendment is germane to S.B. 424. The Chair will entertain a motion on Senate Bill 424.
ASSEMBLYMAN GRADY MOVED TO DO PASS SENATE BILL 424.
ASSEMBLYMAN KNECHT SECONDED THE MOTION.
THE MOTION CARRIED. (Mr. Williams, Mr. McCleary, and Mr. Collins were absent for the vote.)
Chairman Manendo:
Mr. Grady will handle Senate Bill 424 on the Floor.
Back to our agenda, Committee, we are going to open the hearing on S.B. 328.
Mr. Grady will introduce this bill.
Senate Bill 328: Provides for the establishment of regional development districts. (BDR 22-311)
Assemblyman Tom Grady, Assembly District No. 38:
Western Nevada Development District has been very active in our area for many years. I had the honor of being one of the charter members of the committee. With me today is John Sanderson, who is the President of the Western Nevada Development District, and, also, Mary Lou Bentley, who is the Executive Director of the district. I would ask, with your permission, Mr. Chairman, that Ms. Bentley and Mr. Sanderson be able to present the bill on behalf of Senator Amodei. It is a good bill and is supported by the counties that are represented by the district.
Mary Lou Bentley, Executive Director, Western Nevada Development District:
The Western Nevada Development District (WNDD) celebrates its 20-year anniversary this year. After all these many years, we have finally concluded that there really is a need for some legislation that recognizes our organization in statute. I believe you all have copies of the handouts (Exhibit E). Included in there is a written statement for the record that I do not intend to read to you today, but I will go over the key points. Then I will answer any questions you may have.
The purpose of the bill is to recognize WNDD in statute. By so doing, it would allow WNDD to apply for and deliver various state and federal programs on behalf of our members. It also provides the guidelines for other areas of the state of Nevada to create similar organizations like ours. We are indeed the only such organization in the entire state of Nevada. On the other hand, we are one of over 350 organizations nationally. Most states in the union passed this type of legislation back in the late 1960s and early 1970s.
Our organization was formed voluntarily by, originally, four local counties: Carson City, Lyon, Storey, and Douglas Counties. Over the years, we have expanded, and, at the request of our adjacent counties, we now represent a total of seven counties, the original four plus Pershing, Mineral, and Churchill Counties.
[Ms. Bentley continues her testimony.] If you look to the back section of materials I have handed out (Exhibit E), the third page from the back is a map delineating our boundaries. The final page is a listing of our current Board of Directors comprised of elected officials from each of the local governments and private sector representatives that are appointed by their respective county boards. Also, in the back, is a listing of dollar amounts attached to the activities that WNDD has worked on, on behalf of its members, over its 20-year history.
We have done many things in addition to the activities listed, but it is always “dollars” that seem to speak the loudest. You will see that we have done many things:
The grand total is $15,568,980. We have been able to do this because our members believe in the organization and support the organization.
We have found most recently, however, that there are a number of programs that could be handled on a regional basis and benefit all of our members, but, without this legislation, we are prohibited from applying for those. Without this legislation, it falls to one of our local governments, who then must apply for, receive, and be responsible for federal dollars that may be spent in their county and other counties. We are looking to you for that support.
We are a voluntary association, and you should have copies of an amendment that our board passed on April 8, 2003, at our last board meeting (Exhibit F). The amendment was written to very clearly state that there is nothing regulatory, or that there are any mandatory requirements, for our local governments or any local governments in the state. The amendment would go into Section 10.3 [on page 3 of S.B. 328]. It simply says that each county, annually, decides whether or not they continue to participate in the district, and it is all part of the budgeting process and the dues-setting process.
[Ms. Bentley continues.] This legislation provides guidelines and authorization for regional development districts. It permits local governments to pool their funds and share professional staff. It permits local governments, in contiguous counties, to work together. It does not grant taxing authority; there is no companion appropriations bill. It does not duplicate other programs, and it requires no one to create a district.
John W. Sanderson, Executive Director, Lyon County Economic Development Authority, and President, Western Nevada Development District:
It is extremely important to us, as economic development authorities in different areas, to have this kind of organization. It does some things that can’t be done in other ways. Senate Bill 328 will help us with some funding issues and some coordination issues would be very, very helpful to the counties involved. It also allows other counties to do the same, if they wish. We think it is extremely important, the work that we do.
Mary C. Walker, representing Carson City, Lyon, and Douglas Counties:
Carson City, Lyon, and Douglas Counties are supportive of S.B. 328 with the amendment. When we did submit the amendment to you last month, we also discussed it with Senator O’Connell and Senator Amodei. They are in support of the amendment, also.
Chairman Manendo:
[The Chair opened the hearing for questions but there were none.] Seeing none, I will close the hearing on Senate Bill 328, and I will open the hearing on Senate Bill 331.
Senate Bill 331 (1st Reprint): Makes various changes to employment practices governing state personnel. (BDR 23-983)
Gary Wolff, Teamsters 14, Nevada Highway Patrol Association:
I am sorry Senator Amodei is not here. [Senator Amodei, sponsor of S.B. 331, was unable to attend the hearing.] Before we get started, Mr. Chairman, did your Committee receive the amendments? I gave your office 25 copies.
Chairman Manendo:
No. We can go look. We are in recess.
Chairman Manendo:
Committee, come back to order. Let’s start again on Senate Bill 331.
Gary Wolff:
I am glad we worked out the amendment. We will get to it when we get to subsection 4. I will explain what happened there.
An introduction: We have been trying to get legislation like this for years. We were blessed when we introduced it through the Senate Government Affairs Committee, and it came back out.
This bill, basically, does three things. The most important thing in the bill is that it gives subpoena power to the Employee-Management Committee (EMC). This is so very important to the employee groups. In the state system, unlike people who have collective bargaining, our grievances and other matters of concern to employees must go through this system. For those of you that don’t know what the EMC does, it is a committee made up of six people, three from management and three from employees. One presents the grievances, whatever they may be, before this committee.
In the past, what happens is that when an employee is disciplined, up to and including a written reprimand, he goes before the committee, and the state is able to bring in all of their witnesses, at no cost, to present its case. However, the employee must go out and seek people to come in free, under their own time, and, at an expense to the employee, for their witnesses.
What this bill does is to allow us, the committee, to subpoena the employee witnesses. This would mean no cost to the reprimanded employee, the employee witness would not have to fear retribution, if she or he felt that any retribution would be there, and she or he would be compelled to testify at the committee hearing. I can’t tell you how important this is to the labor groups and to the employee groups. That is Section 1.
Section 2 basically outlines what is normally done under subpoena power. It outlines what can be subpoenaed. In some cases, there are some records you can subpoena and other documents that would be pertinent to the case.
Section 3 outlines that if a person fails to appear, refuses to appear, it would go under the Nevada Civil Procedures, and, as in any civil matter, the aggrieved employee could petition the district court, and those people who refused to testify could be found in contempt of court.
The importance of this I cannot express high enough. In the past, it was a very trying experience for employees, and, if you think these are very small cases, you haven’t been in touch with what is going on over there. Years ago, this thing was designed and an employee could stand before a committee by themselves. Throughout their grievances or gripes, it was a pretty easy system. Today, we have attorney generals involved. I have a case that has been pending for a year and a half over a matter. The Attorney General’s Office has filed two separate briefs challenging even the authority of the EMC to hear the case. This is becoming very complex, and it is very necessary that the subpoena power exists for us.
[Mr. Wolff continues his testimony.] We worked very hard on this bill with the State of Nevada Department of Personnel, with the committee, and everyone, to get this passed, and would really hope that you would support those three sections.
What happened in Section 4, the necessity for the amendment (Exhibit G) was that, when we got into committee, there were some amendments put on it. Director Greene of the State of Nevada Department of Personnel had them handwritten, and the committee took the handwritten notes and passed the bill out of committee with the handwritten notes attached. As it went through the process, all the way through the Senate, we didn’t catch that ourselves, and we apologize.
The amendments you have before you (Exhibit G), for the first time, will give all employees in the state the same rights that city and county employees have under Weingarten [NLRB v. J. Weingarten, 420 U.S.251 (1975)]. If an employee is going to be subject to an investigation where disciplinary action would be possible, she or he must be informed of the action and is entitled to a representative, which, today, is a privilege extended only to police officers. It guarantees the employee two business days to seek such representation.
Even under the Peace Officer Bill of Rights, they could come in to an officer and say, “You are being investigated,” throw the things down, and the officer could say, “I want a rep.” The response could be, “You have 15 minutes; go out in the hall and find one.” Under collective bargaining, that doesn’t happen, because it is worked out, and, in most places, the employee has up to 72 hours.
Senate Bill 331 would guarantee this right to all employees so that they have time to gain representation. We have gone to the Committee Chair and to the author of the bill. The amendment has been worked out with the Department of Personnel. This amendment is exactly what was passed out of the Senate Committee. Under subparagraph (b), NRS 284.390 is scratched out on the amendment, as it doesn’t apply to this section. NRS 284.390 is when one goes to a hearing officer, and you already have these rights in here. The other concern is the addition, in subparagraph (a), of the word “informed.” The reason we wanted the word “informed” in there is because, once it gets to a formal investigation, you are going to receive written notice anyway, and what we really want is for the employee to be informed right from the start. It is a very minor amendment, but it lines up with what was testified to and agreed to in the Senate Committee on Government Affairs. This is actually the language that should have been in the bill when it passed out of the Senate.
Jeanne Greene, Director, State of Nevada Department of Personnel:
I am here in support of this bill. Gary Wolff and I have worked very closely on this bill. We have both compromised to a great degree, and I think this is something that we all support.
Scott MacKenzie, Executive Director, State of Nevada Employees’ Association:
We are pleased to be here to support this bill. You can imagine what it would be like to try to represent somebody and know that there was someone, a coworker or somebody else, who has information about the discipline or something that has occurred, and you are trying to get to the truth. That individual has the information, but, for whatever reason, is afraid to come forward, because, in his mind, he thinks that his supervisor is going to retaliate against him. If, in fact, the supervisor has let it be known that he should not appear in defense of this individual, how frustrating it would be to defend people in an honest way. Ultimately, the systems are designed to get to the truth. We do support this, and we do appreciate this. Weingarten, we think, is important. If someone is accused of something, it is important to have somebody who has a clear head, is not emotionally involved in the accusation, to stand there and help the person through this. Again, we support this bill as amended.
Assemblyman Knecht:
Looking at this bill, there is one provision that I sort of stick on. It is the subpoena requirement on page 2, lines 15-16 and 26-33, the mandatory nature that a court of law “shall enter an order directing the person named in the subpoena to appear before the Committee.” It is not written that it “may issue,” but that it has no discretion. I am concerned about the rights of the employee who is the target of the subpoena. I would like you to explain to me why the court should not have discretion in this matter. Also, what provisions exist to protect the rights of the subpoenaed employee? I can imagine, well short of any threats, implicit or explicit, from a supervisor or anything like that, that employees might have good reasons why they don’t want to appear, very legitimate reasons, in some cases. Can you tell me why a court should be mandated, and what the protections are here for the subpoenaed employee?
Gary Wolff:
I am not an attorney. My understanding is that this bill was written in compliance with Nevada Civil Procedures. I think, as a law enforcement officer for 31 years, when we were subpoenaed into court, that the subpoena was an act of the court or a hearing officer or anyone who had subpoena power. There is some protection in the bill, if there is some reason why you can’t appear. This bill states that it applies to someone who willfully refuses to appear. I think the courts are mandated, under the Nevada Revised Statutes, to issue an order. There isn’t discretion under the Nevada Code.
A subpoena is a mandate already that you appear. I think the language in the bill just coincides with the subpoena powers in the law already. The whole idea of this bill is that we have not been able to bring people in, under fear of retribution for taking off time from work. My understanding, when this bill was written, was that it lined up with other subpoena powers if you were in court or if you gave a deposition. I have been through many depositions, and you have to appear. If you don’t, you will get an order from the court mandating you appear, unless you are in a hospital or your attorney goes into the court to argue why you should not appear.
Assemblyman Knecht:
I appreciate Mr. Wolff’s answer. As the last point he made points out, when one is in a court proceeding per se, you are represented by counsel, you are a party to that. You then have the option to go before the court to show why a subpoena should not be issued. I agree that a subpoena mandates you to appear, but it is not mandatory, in my understanding, for a court to issue a subpoena. It is discretionary. However, what I also understood Mr. Wolff to say is that there may be certain circumstances where it is effectively mandatory. If you could provide me with some of those examples, it would help me feel a little better.
What it seems to me that you are doing here is raising the Employee-Management Committee to the status of a court in that its word would become binding upon a court to issue a subpoena. I am not sure that I could consider the committee to be equivalent to a court in that degree. It may be that there are other precedents where subpoenas can be sought or issued by other parties and are subject to automatic court enforcement; if that is the case, then this would not be an unprecedented procedure. I might feel a bit more comfortable with that. If you could help me out on that, I would certainly appreciate it.
Gary Wolff:
Again, Mr. Chairman, the only thing I can say, since I am not a lawyer and you have lawyers on staff, is that in the Senate, three lawyers looked at this bill, Senator Care, Senator Amodei, and Senator Raggio, and they all supported this legislation, along with the Chair of the Senate Government Affairs Committee. You may have a point, but I am not an attorney. If something needs to be fixed in that section, I would appreciate your assistance.
Chairman Manendo:
Ms. Scholley or Ms. O’Grady, could you help us with clarification?
Eileen O’Grady, Legal Counsel to the Committee on Government Affairs:
That subpoena language is pretty standard. We use that everywhere in NRS. There are several “outs” in it. The subpoena has to have been regularly issued by the issuer. The subpoenaed person would have to have direct personal knowledge of the issues involved. Also, the person in subsection 3 could show up in court to tell them why one could not or failed to attend. So there are several outs in it, and it gives courts some discretion.
Assemblyman Knecht:
That’s helpful, and I certainly appreciate it. Do I understand our staff counsel to say that there are other agencies, other bodies that can issue subpoenas on the same terms and have them enforced on the same terms. If so, if you can give me an example of that?
Assemblyman Hardy:
I am not an attorney, either, but, as I read this, there might be a matter of construction. In Section 2, subsections 1-3, I think that subsection 3 is more referencing what has occurred in subsection 1 or 2, particularly. If the person fails to attend or refuses to attend, then subsection 3 takes place. In subsection 3, the court “shall enter an order.” If I look at the actual construction of the bill, I think that is problematic, more than the intent of the bill. I would defer to attorneys whom I know to say whether subsection 3 kicks in when subsections 1 and 2 haven’t been adhered to. That’s how I read it. By the time you get to subsection 3, you have been to subsection 1, and you have been to subsection 2. You haven’t had redress; you haven’t had the person appear who, indeed, refuses to appear, and then, the “shall” takes place.
Assemblyman Knecht:
Dr. Hardy’s interpretation and my interpretation are the same. My question is based upon that interpretation. Namely, that in subsection 3, the Executive Officer of the EMC goes to court and presents the appropriate paperwork, and the court, on the face of it, has no alternative. Staff counsel says that the court would have alternatives, if the target of the subpoena showed up there to say, “I have good cause to not want to appear.” The court would then be able to hold a hearing on that. That was my understanding of counsel’s interpretation, although that is not immediately clear to me on the face of the bill. Since it isn’t that clear on the face of the bill, I am just trying to get some security that this does provide for the procedural and substantive protections necessary to the target of the subpoena.
Gary Wolff:
The effect on state government is there but, when it went into Government Affairs, Senator Raggio sits on that committee, and he didn’t feel the impact was anything significant enough to send the bill to the Finance Committee. When you do these things, 95 percent of these things rest on the party defending the accused person, rather than on the state itself.
Scott MacKenzie:
For ten years, I was the Secretary/Treasurer of Local 86 in northern Nevada, which is the Culinary Union. I did thousands of grievances. I subpoenaed two people in that entire time. Those were people who had knowledge that was critical to the case, who did not want to appear. Because they did not want to appear, the individual who had been brought before the EMC was going to lose his or her job. For whatever reason, they may have been fearful of being part of the process. It is a tool to try to get to the truth. I think a subpoena is a subpoena wherever it exists, and the same rules apply. Maybe it seems a little harsh, because it is in the workplace, but, at the same time, it would also be unfair if someone lost his job because somebody didn’t want to come forward to tell the truth.
Assemblyman Knecht:
I want Mr. Wolff and Mr. MacKenzie to understand that I very much appreciate the intent of this bill, Senate Bill 331, and I understand what you are trying to do. I also understand that it is power that would be rarely invoked, and there are inequities on both sides here. I certainly appreciate the employee who is the subject of the hearing needing this kind of power. Let me give an example of the concern.
You have potential self-incrimination issues on the part of the subpoenaed employee. When one goes into court, one has constitutional protections on those. I suppose those constitutional protections could be invoked at the EMC level, too. But, at a certain level, what you are doing is making a person subject more to the possibility of having to decline, and, thereby, the individual appears to incriminate himself. If the case had to go to court, he would not be in the same position before he was required to appear. I understand and appreciate the case that Mr. Wolff and Mr. MacKenzie make, and I am not the least bit unsupportive of that. I am concerned about the protection of the other employees, also. That is why I am raising this point.
Chairman Manendo:
Mr. Knecht, we will get you the standards for subpoena power and what happens. We’ll get it printed, and it will be available for you after the meeting.
Assemblyman Knecht:
Thank you, Mr. Chairman.
Gary Wolff:
I would urge your support. This is much needed. Until we get collective bargaining, we have to come here with bills like these. I can guarantee you that we really need this. Thank you.
Chairman Manendo:
Thank you. Does anyone else wish to speak on Senate Bill 331? [As there are no more witnesses in Carson City or in Las Vegas,] I will close the hearing on Senate Bill 331 and bring it back to the Committee.
We will be looking into the proposed amendment and will try to answer some of the questions brought up for our members. Committee, we will return to S.B. 328, Senator Amodei’s piece of legislation. The Chair will accept a motion.
ASSEMBLYMAN GRADY MOVED TO AMEND AND DO PASS SENATE BILL 328.
ASSEMBLYMAN GOICOECHEA SECONDED THE MOTION.
THE MOTION CARRIED. (Assemblymen Atkinson, Collins, and Williams were not present for the vote.)
Chairman Manendo:
Mr. Grady will carry the motion to the Floor.
We will need a couple of minutes to look at a couple more bills. If anyone needs to leave, we will be in recess for a few minutes.
Chairman Manendo:
[The Chair called the Committee back to order for a work session.] Committee, we are turning to Senate Bill 181. Senate Bill 447 will not be heard today, so keep it in your book. We will see if the amendment that was proposed might go into S.B. 447.
Work session is now open to consider Senate Bill 181.
Senate Bill 181 (1st Reprint): Revises provisions relating to amendment of redevelopment plans. (BDR 22-992)
Susan Scholley, Research Analyst, Committee on Government Affairs:
Senate Bill 181, in its first reprint, was sponsored by Senator Care. It was first heard in this committee on May 1, 2003.
Senate Bill 181 provides that, if an action constitutes a “material deviation” or significant amendment to a previously adopted redevelopment plan, the agency must recommend the amendment to the appropriate legislative body. A “material deviation” is defined in the bill and includes vacation of a street or relocation of a park. A notice of a hearing on a proposed amendment to a redevelopment plan must be sent by mail, at least ten days before the hearing, to each owner of real property whom the agency determines is likely to be directly affected by the proposed amendment. The bill also sets forth the content of such notices and clarifies existing language regarding the filing with the appropriate planning commission to amend redevelopment plans that also affect a master plan.
For amendments, Patrick Smith, representing the City of Las Vegas, proposed a limiting amendment to the definition of “material deviation,” as it relates to the vacation of streets, which the sponsor stated was acceptable. A mock-up of the proposed amendment is attached (Exhibit H).
There was no opposition to the bill. There was an identified fiscal impact at the local level. The fiscal note is attached. There was no fiscal note at the state level.
Turning to the mock-up (Exhibit H), on page 2, at the bottom, lines 35-41, “material deviation” is limited to the vacation of streets that appear in the streets and highway plan of the master plan, pursuant to NRS 278, which has been adopted for the community. It would not include smaller streets, which have a separate process for notice of vacation.
Eileen O’Grady worked out the amendments, so she and I would be happy to answer any questions.
Chairman Manendo:
The Chair will entertain a motion.
ASSEMBLYMAN HARDY MOVED TO AMEND AND DO PASS SENATE BILL 181.
ASSEMBLYMAN CHRISTENSEN SECONDED THE MOTION.
THE MOTION CARRIED. (Assemblymen Collins and Williams were not present for the vote.)
Chairman Manendo:
Assemblyman Hardy will carry this on the Floor.
Assemblyman Knecht:
During the break, Counsel Eileen O’Grady was good enough to walk me through the Section 2.3 that I was misreading. That was what gave rise to my problem with Senate Bill 331. I just want the record to reflect that I am satisfied that all of my concerns have been answered on S.B. 331, and I thank the witnesses, I thank the Chair, and the staff, and I am ready to “Amend and Do Pass” at any time.
Chairman Manendo:
Thank you, Sir. Mr. Knecht, thank you for that. We have a way of clearing things up for all of us. However, our staff needs some clarification for themselves on the proposed amendment, so we have to hold off for a little bit.
The next bill to be heard in the work session is Senate Bill 16.
Senate Bill 16 (1st Reprint): Specifies effect of abstention from voting by member of certain public bodies on necessary quorum and number of votes necessary to take action on matters. (BDR 19-377)
Susan Scholley:
Senate Bill 16, in its first reprint, sponsored by Senator Care, was heard in this Committee on May 1, 2003.
Senate Bill 16 applies in a county with a population of 40,000 or more, which would include Carson, Clark, Douglas, Elko, and Washoe Counties, and provides that a quorum may only be reduced as a result of an abstention, if the member of the elected body receives a legal counsel opinion, in writing, that the abstention is required by law. This measure is intended to clarify provisions approved in Senate Bill 329 of the 2001 Legislative Session that prohibited certain public bodies from taking action by a vote without the affirmative vote of a majority of the members of the public body.
[Susan Scholley continues.] There are no amendments, there was no opposition, and there was no fiscal impact to the bill (Exhibit I).
Assemblyman Goicoechea:
I really don’t like the language in the bill. I can see where it would really hinder the board at a point that an issue came up in the course of a meeting, and the legal counsel had to draft a letter. Again, with the requirements in the bill, it has to be specific and factual and have an analysis leading up to it. I don’t think legal counsel is going to whip it up for you in 15 to 20 minutes. It might delay an action. On the other hand, it applies in counties of over 40,000, so it doesn’t impact anybody I represent. I was concerned why Elko County, and maybe even Carson and Clark Counties, weren’t concerned. Apparently, they had no issues with it. I could see on a three- to a five-person board where some conflicts could exist in a rural area, and I can see where legal counsel would be extremely apprehensive about writing a letter either “Yea” or “Nay.”
Chairman Manendo:
I don’t understand why Elko, Carson City, Washoe, Douglas, and Clark Counties didn’t weigh in one way or another to give us some comfort level. I haven’t had a chance to see what happened in the Senate, as far as who testified or not, but we are almost done, and I am sure they are aware of it.
Assemblyman Goicoechea:
Again, no one would be impacted in my district, but it might be a bill we would look at changing when we come back next time. It could have issues, especially in the Elko area. I’m sure the district attorneys in those areas don’t know what’s going on.
Assemblyman Grady:
I would like to echo the comments from my colleague from Eureka, Mr. Goicoechea. I would agree that Lyon County will be getting very close to those figures, and I don’t know why there were not some comments from some of those areas. If they do not have the concern, it is not affecting my area. I have some real problems with the legislation as written.
Assemblywoman Koivisto:
I think I need to point out that these public boards are required to post their meeting agendas, and these folks know, before the meeting, what’s on the agenda. The idea that they only have 15 minutes to come up with their letter of abstention just doesn’t work for me. If the agenda has been posted, they know what’s on the agenda, and they can get that letter if they feel they have to abstain.
Chairman Manendo:
If the item is not posted, that creates a different problem.
Assemblyman Goicoechea:
This body isn’t the only one that legislation and actions take weird turns. I have sat of boards where things come up that you didn’t anticipate even though there is a posted agenda item. You think you know where you are headed when, all of a sudden, it takes a different twist. We see that regularly, even here.
Assemblyman Christensen:
I believe that Senator Care presented this bill when I was presenting one of mine in a different committee. I missed out on the opportunity to hear him speak. Was there a significant event that happened, or is this something that happens on a regular basis that stimulated the idea for this bill? Can anyone respond to that?
Assemblyman Goicoechea:
I also was gone, and that’s why I didn’t have a chance to comment on it in Committee when it was heard. It must have been heard last Friday.
Dan Musgrove, representing Clark County:
In his testimony, Senator Care stated that this was relating to an issue that involved the Clark County Commission back when there was a neighborhood casino issue up in the Spring Valley area. It was about three or four years ago. There were individuals that had to abstain, so it reduced the quorum down to a very small number, less than the majority. It was Senator Care’s contention that, as with this body, legislation should not be passed unless there is a majority of the board present to make that decision. This body deals with general policy. When you take an action, it affects every person in the state, some more than others. The trouble with local boards is that they deal with specific applications that involve one person.
For example, Dan Musgrove has a zoning application dealing with a piece of property that I have at Jones and Interstate 95. It deals with specifics. If there are relationships that are involved with those individuals, I may have a relationship with you and Mr. McCleary on a business level, then it’s not a general policy matter that you are deciding on, it is on a specific matter. That is why the local governments said that there are instances when we needed to abstain, when there is a specific relationship involved, and that is why Senator Care amended that language to bring in that letter. It derived from a Clark County Commission decision, or an action, that took place involving a neighborhood casino where there was a significant number of the board who had to abstain with legitimate reasons to abstain. It resulted in reducing the quorum down to, I think, three members who could actually vote on the issue.
Assemblyman Christensen:
There is a similar issue that we are going to be talking about this week that was in the press which was kind of like that. So their legal counsels have the ability to turn around these opinion letters in a timely way. You can speak for Clark County, and its ability to do that. As my colleague, Mrs. Koivisto, from District 14, stated, the agendas for the meetings are posted, and they can get their opinion letter before the meeting and before an item goes up for vote.
Dan Musgrove:
In most instances, I would say, “Yes,” but there is the possibility, when you have a specific matter that comes before them, that, until the members of the public show up that are involved that day of the hearing, one might not realize that there is a relationship. Let’s say that I’m sitting on the Board of County Commissioners, and it turns out that my neighbor opposes an item. That’s probably not a good example. Sometimes, you have to make decisions on the fly.
We did have some concerns that, perhaps, and I am not sure Senator Care was willing to do this, sometimes the district attorney or the city attorney has to make a decision at that meeting right then and there based on people who present themselves at the hearing that day, being for or against an issue, who might have a relationship to the matter. That might be the neighbor who lives next door to this 7-Eleven going in. The neighbor never contacted the commissioner to inform them that he/she was involved in that item or issue.
We were looking for some leniency, to have that decision placed in writing maybe a couple of days after the meeting. Just as Eileen O’Grady, sitting on this Committee, may need to make a decision on the fly right then and there, so might the city attorney need to do so. That opinion or determination would then be put into writing and submitted for the record a couple of days later. We were looking for that kind of relief, but it is up to the Committee to decide if we get that or not.
Assemblyman Christensen:
I am wondering how that would tie into this piece of legislation that we will be voting on. Do I understand you right? You don’t know for sure if that is going to be able to happen, that an attorney can write a letter after the fact?
Dan Musgrove:
I am not sure if we would have that flexibility or not. We are still addressing the ramifications of this legislation, and maybe Ms. O’Grady would be able to make a decision on that. Again, I think that the ultimate decision lies in the hands of the elected officials. The letter that they may or may not receive from a district attorney or a city attorney is really just a suggestion that, based on this causal relationship, it is our decision that you either abstain or not abstain. There may be instances when the attorneys had not had a chance to prepare that letter prior to the hearing. Whether or not a person can abstain or not abstain, that matter has to be put off for two weeks. I’m sure there are ways that we can work within the framework of Senate Bill 16. That is one of the reasons why we didn’t oppose the bill on this side of the Legislature. We really were neutral.
Assemblyman Christensen:
I like the bill. I like the elected officials to be able to get an opinion, to be able to vote with a clear mind, knowing that there is not a conflict. The only concern I would have is whether we are addressing in here what happens when someone in the audience, or when circumstances change and there is a witness, whom you find out is involved with you in some way, and you don’t know that until the meeting begins or the agenda item comes up. We are saying that one has to have a legal opinion. Will they be able to do it after the fact?
Chairman Manendo:
Our Legal Counsel is saying that the opinion must be rendered before one could abstain.
Assemblyman Goicoechea:
I believe, the way the legislation is written, one had to have that in hand or you have to vote. That kind of concerns me. If you and your own conscience say that there is a conflict with an issue, and you don’t want to vote, and if legal counsel doesn’t concur, then you vote.
Chairman Manendo:
The commission could also continue the item until a later time.
Assemblyman Goicoechea:
That’s right. I wonder what would change that if the legal counsel doesn’t feel you have an issue, and you, in good conscience, feel you do; it kind of concerns me.
Assemblywoman Koivisto:
I think we are losing sight of the bigger picture. These people are elected to represent a group of constituents. When those people are in a position where they have to abstain on this, that, or the other thing, those constituents are being cheated of their representation on the board.
Chairman Manendo:
We hear that all the time from people.
Assemblyman Goicoechea:
As I stated earlier, I can support the bill because of the population cap. I was just concerned why some of those entities were not here to voice an opinion one way or another.
Assemblyman Christensen:
I support it as well. I asked the questions that I have asked in light of this weekend’s issue, and this being so “in the press.” As Mrs. Koivisto mentioned, I feel like I wonder if my commissioner in Clark County was one of those who was written about who would have to abstain, because of a relationship, and then the commission is down to three out of the seven members who were able to vote. I don’t think that was right. I will support it.
Chairman Manendo:
I wonder what would happen if everyone on a board had a conflict and abstained on an issue. What if it were something that was good for the public?
Assemblyman Hardy:
I think this discussion illustrates the point of the bill. We need the bill, and we need a starting place. This is a reasonable starting place. I did communicate with Senator Care and suggested even stronger language, but I think it is reasonable to start here and to vote on the bill in support. I would be happy to make a motion.
ASSEMBLYMAN HARDY MOVED TO DO PASS SENATE BILL 16.
ASSEMBLYWOMAN KOIVISTO SECONDED THE MOTION.
Chairman Manendo:
I think the correspondence that I received about this bill was from people who are kind of frustrated with the system. It is exactly what Mrs. Koivisto said. Members of a board, having to abstain and having conflicts of interest, leave constituents unrepresented. People are frustrated by that lack of representation. I think that, at some point, the public will have to start debating where they want elected officials to be. Do they want them full-time so they don’t have conflicts? I am not speaking of those at the legislative level, but there are times when we have to declare and disclose, and there are times when we can’t vote.
But, there are so many important issues at the local level, especially in some of the larger counties. It has almost come to the point where, if your representative cannot vote on items because they have maybe taken a job after they were elected, in some cases, that debate is going to have to continue. I believe it is going to heat up. Hopefully, this will be a positive piece of legislation in the long run. I think it will be.
Assemblyman Atkinson:
I am listening to all of this and this is definitely one of those why, although I know it has nothing to do with this bill, some of these positions do need to be made into full-time positions. It would take away some of this conflict, because this is kind of getting out of hand.
Chairman Manendo:
We are hearing it at the legislative level. Sometimes, we are closer to the people than county commissioners and city council members are.
Question is called on the Do Pass motion of Senate Bill 16.
THE MOTION CARRIED. (Assemblymen Collins and Williams were not present for the vote.)
Chairman Manendo:
Mr. Hardy will carry Senate Bill 16 to the Floor. Thank you.
[Chairman Manendo continues.] There is nothing else to come before the Committee. I thank you again, Committee, for your hard work. We are adjourned [at 10:46 a.m.]
RESPECTFULLY SUBMITTED:
Nancy Haywood
Committee Secretary
APPROVED BY:
Assemblyman Mark Manendo, Chairman
DATE: