MiNUTES OF THE
SENATE Committee on Government Affairs
Seventy-second Session
March 24, 2003
The Senate Committee on Government Affairs was called to order by Chairman Ann O'Connell, at 2:05 p.m., on Monday, March 24, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4412, 555 East Washington Avenue, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Ann O'Connell, Chairman
Senator Sandra J. Tiffany, Vice Chairman
Senator William J. Raggio
Senator Randolph J. Townsend
Senator Warren B. Hardy II
Senator Dina Titus
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Joseph (Joe) M. Neal Jr., Clark County Senatorial District No. 4
Mark E. Amodei, Capital Senatorial District
STAFF MEMBERS PRESENT:
Michael Stewart, Committee Policy Analyst
Scott Wasserman, Committee Counsel
Alice Nevin, Committee Secretary
OTHERS PRESENT:
Steve K. Walker, Lobbyist, City of Carson City, Douglas County, Lyon County
James J. Spinello, Assistant Director, Administrative Services, Clark County
Andrew A. List, Lobbyist, Nevada Association of Counties
Mary E. Henderson, Lobbyist, Nevada League of Cities and Municipalities
Mary Lou Bentley, Lobbyist, Western Nevada Development District
Gary H. Wolff, Lobbyist, Teamsters Local 14
Walter R. Tarantino, Lobbyist, Nevada Highway Patrol Association
Ron Cuzze, State Peace Officers Council of Nevada
Linda F. Covelli, Lobbyist, State of Nevada Employees Association #4041
Jeanne Greene, Director, Department of Personnel
Phillip J. Brittenham, Chief Personnel Officer, Department of Motor Vehicles
Chairman O'Connell:
I will open the hearing on Senate Bill (S.B.) 295.
SENATE BILL 295: Abolishes Dillon’s Rule concerning statutory interpretation of powers of local government. (BDR 0-591)
Senator Joseph (Joe) M. Neal Jr., Clark County Senatorial District No. 4:
Senate Bill 295 would abolish Dillon’s Rule as far as the operation of local government, except to allow an increase or decrease in taxes. Local governments must follow the State law in tax issues.
Dillon’s Rule came about during a period of government when political machines and strong party bosses controlled local government causing rampant corruption and inefficiency. Judge Dillon ruled local governments were entities subject to the will of the State Legislature.
I am told, that particularly in the smaller counties, Dillon’s Rule hampers them from acting for their own self-determination. Subsection 3 of S.B. 295 says local governments are not authorized to impose or increase a tax unless the tax or increase is otherwise authorized by specific statute. They cannot act to impose taxes without Legislative approval.
I present S.B. 295 for your consideration to abolish Dillon’s Rule. Members of local government will testify as to how local governments feel regarding this particular rule. I think if you elect people you trust, they should be given the authority to act on their own behalf. This is why I offered to present this measure to you. Certain individuals throughout the State talked to me when we were looking at tax matters. I thought it was time to bring this issue to the Senate or the Legislature for consideration.
Chairman O’Connell:
Is there a reason why you feel we have grown to the point that we can trust our local county governments with everything except a tax increase?
Senator Neal:
We decided the issue of increasing and decreasing taxes should be in the hands of the Legislature. We would allow county government to act on all other issues relating to local government operations. Maybe in the future we would revisit the question of allowing the tax matter to be considered by local governments. The repeal or abolishment of Dillon’s Rule would not give local governments complete home rule, but it would ease matters to the point where we could watch and see how they do their business. We could consider the tax issue in the future.
Senator Raggio:
As I understand the purpose of the bill, it specifically abolishes Dillon’s Rule. Is that necessary? Otherwise, it is the common law of the State. Can you give us specific instances of why this is necessary? What powers do local governments not now have that this would allow them to have? Is there a specific project or purpose for which they are looking?
Senator Neal:
I will allow others to give more details on this matter. Mr. List, will you come forward?
Chairman O’Connell:
To save time, I would like to ask Mr. Walker, Mr. List, and Ms. Henderson to come forward now.
Steve K. Walker, Lobbyist, City of Carson City, Douglas County, Lyon County:
I do not wish to speak, but I support the bill.
James J. Spinello, Assistant Director, Administrative Services, Clark County:
Mr. List will provide a detailed explanation of Dillon’s Rule, and what we want to achieve from the bill.
Andrew A. List, Lobbyist, Nevada Association of Counties (NACO):
Thank you for allowing us to testify on S.B. 295. This rule of statutory construction comes from Judge John Dillon, an Iowa Supreme Court Justice in the late 1880s. I have provided information on Dillon’s Rule for the committee (Exhibit C).
Judge Dillon wrote:
It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and not others: first, those powers granted in express words; those necessarily and fairly implied in or incident to the powers expressly granted; those essential to the accomplishment of the declared objects and purposes of the corporation …
Mr. List:
In any fair, reasonable, substantial doubt concerning the existence of power as to the statutory construction of that statute, the issue is resolved against the county. With this legislation, we would like to change the rules of statutory construction and bend them in favor of the counties. We are not seeking home rule, only to change the rules of statutory construction.
Senate Bill 295 would do the same thing as Dillon’s Rule. It would grant those powers granted in express words, those necessary and fairly implied, and those appropriate to the local government. Dillon’s Rule said essential to the local government. We are asking for rules appropriate to local government. We are leaving out the part of Dillon’s Rule that construes any statute against local government.
There are four reasons why we believe this is necessary. First, we have a 120‑day session. The counties do not have time to come to this body every time they need a minor change in the law, or when their district attorney says they do not have the power to do a certain action. For example, I call your attention to S.B. 145, the flexibility bill from this session.
SENATE BILL 145: Makes various changes concerning counties. (BDR 20‑172)
Clark County wanted the power to enter into a contract with the federal government, and their district attorney said they could not do it. The contract was necessary to provide more recreational opportunities for the citizens of Clark County. Instead of having the ability to enter into the contract directly, they had to come to this body and ask permission. If permission is not granted this session, they will have to wait another 2 years to get permission.
The second reason is the counties have a limited number of bill draft requests (BDRs). If we make every single little change we want to make in the Nevada Revised Statutes (NRS), NACO would need about 100 BDRs.
The third reason is there are some fiscal crises out in the counties and counties need more flexibility with their monetary policies in order to make their limited funds go further.
Finally, 37 of 48 states with a county government system have abolished Dillon’s Rule and granted some sort of home rule or charter county legislation to particular counties.
The tax issue was necessary in S.B. 295 because taxes are the subject of this Legislative Session. There needs to be a fair and uniform system of taxation across the State pursuant to our constitution. As Senator Neal said, we believe changing the rules of statutory construction is a step forward not necessarily for home rule, but a step in that direction. Perhaps a compromise can be reached.
Mr. Spinello:
I think Mr. List is right in terms of what we go through before each session. Before the limited sessions, we had a limit of 30 to 35 bills. We could have easily submitted 30 to 35 bills because of suggestions from departments. We get dozens and dozens of requests for fairly mundane bills. These are practical changes of things that come about during the course of doing business. The respective deputy district attorney has said they cannot do something the way they would like to do it. Often the way they would like to do it is far more practical and efficient, but the explicit authority to do it that way does not exist.
These are not big changes, as a shift or expansion of power or authority; most are for really simple things. For instance, we had a bill last session regarding a portion of a right-of-way, a sliver that needed to be turned back, and we could not do it. This kind of thing happens frequently, particularly in a growing area like Las Vegas. The State Public Works Board could not use a common sense practical way because the law did not allow it. A bill was required.
Currently we review about 60 to 70 bill requests from the departments. We try to limit ourselves more than the Legislature does, as far as the number of bills we bring forward. I think it is a very good discipline. We would not like to have to track all of those bills through the Legislature, but those are the kinds of measures we are talking about.
Mary E. Henderson, Lobbyist, Nevada League of Cities and Municipalities:
The league would certainly support any type of lessening of the requirements. We come into the building every session with a pretty substantial BDR package. We also track probably 300 to 400 bills that could have an impact on us.
Cities are different than counties because in many cases we have charters to give us more flexibility. In my mind, we are dealing with structural home rule. I know you are very well informed on this issue. You were extremely receptive to at least some of our concerns in the 1995 Legislative Session.
I have represented local government over the years. I have brought bills to the Legislature where I have apologized for taking your time to deal with things we should be able to deal with at the local level, whether it is setting office hours or something similar. It has been a little embarrassing. I remember when ex‑Senator Jon C. Porter, Sr., now United States Representative, asked me, “Why are you even here with this bill?” I said it is really not an important bill; however, we need to make these changes to serve our constituents, and we cannot do it without your approval. Many of the housekeeping bills should be dealt with at the local level.
The fiscal piece of the bill is much thornier to deal with. In 1995, we sort of put the fiscal piece on a shelf and decided we would look at the structural areas to hopefully get some relief there. The bill does have a fiscal impact. It will have a fiscal impact on how you conduct business in this building. It will also affect how we do business at home when we make those adjustments, especially in times when we are looking at how to be more efficient in doing business. We need to let local officials have the ability to move ahead. We support this bill.
Senator Neal:
This would not take the Legislature out of the loop. It is not constitutional in nature, as was indicated, and the Legislature has the power to extend and retrieve if they so desire.
Senator Raggio:
I do not think this is a matter of grabbing power or anything of that kind. My concern is even with Dillon’s Rule; by implication, local governments have the power to carry out any power they are expressly granted. I do not understand why it is necessary to amend it. It is a good safeguard against an abuse of power.
I have not heard of any specific project that local government has been denied because of Dillon’s Rule. It seems to me you may be getting some misinterpretations on the part of local counsel, but I do not think we can address that issue through this. My question is: “Isn’t there already the necessary power to carry out the express powers that are given to local governments?”
Mr. Spinello:
Senator, many of us have raised the same question. It always comes about because of a district attorney’s interpretation. We cannot do something the practical way. No projects are at risk. It is something simple such as setting hours, giving back a formally dedicated right-of-way now used in a different way than before ¼ a very small sliver. If you look at the kinds of bills local governments have brought to the Legislature over the years, you have asked many times why we were here.
At the administrative level, it frustrates us. If it is an interpretive issue, it is interpretive Statewide. District attorneys, across the State, tend to be very conservative in applying Dillon’s Rule. Generally what we are told in Las Vegas is it must be implicitly expressed in the law. You can do it, but do it exactly in the way you intend to and not ten degrees off from that. I can tell you, as an administrator, we get that interpretation very often.
Senator Care:
I have two questions. First, if we do this, will someone have to review existing statutes where there might be some doubt, and specify no political subdivision shall ¼ . Second, since courts generally do not issue an advisory opinion, in the event a local political subdivision were to enact an ordinance and certain members of the Legislature took exception to it, I guess we would have to wait until the next Legislative Session to enact something to void whatever the local ordinance would be.
Mr. List:
I would defer your first question to Mr. Wasserman. The answer to the second question is yes. If there was a body of law not occupied by the State, and the county decided to occupy that portion of the law and enact an ordinance, and this body took exception to it, they would have to wait and occupy that body of law in the next Legislative Session. That is the way it is written.
Scott Wasserman, Committee Counsel:
It might be helpful to start with the words of Judge John Dillon and what he said in regard to the powers of local government. He wrote:
It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation - not simply convenient, but indispensable.
Looking at S.B. 295, the essential change in Dillon’s Rule would be as Mr. List pointed out. In subsection 1, paragraph (c), local governments would be allowed to have such powers as are appropriate or convenient to the accomplishment of the declared objects and purposes of the local government.
Senator Raggio:
You have almost answered my concern, but he does use the term in the decision that there is a power by necessary implication.
Chairman O'Connell:
We will close the hearing on S.B. 295 and open the hearing on S.B. 328.
We will be going to a Senate Floor Session at 3:30 p.m. If there are a lot of people here to testify, I would suggest you select a few members to testify so the testimony is not repetitive. This will help us complete the next two bills within an hour’s time.
SENATE BILL 328: Provides for the establishment of regional development districts. (BDR 22-311)
Mary Lou Bentley, Lobbyist, Western Nevada Development District:
I am executive director of the Western Nevada Development District (WNDD) office in Carson City. I would like to introduce Shirley Walker. She is director of the Churchill Economic Development Authority in Fallon and a longtime board member of the WNDD as well as our immediate past board president. I would like to present a packet of information (Exhibit D).
The WNDD is the only organization of its kind in the State, although there are 300 similar organizations in the country. We have been in operation since 1983, incorporated as a 501c4 which links us to local governments and somewhat distinguishes us from the Boys and Girls Club, the Young Men’s Christian Association (YMCA), and those types of activities.
We have concluded, after 20 years, that we need recognition in the State statutes to allow us to move forward with various programs on behalf of our members. We could have asked for special legislation to recognize WNDD only. We chose to offer legislation that would recognize WNDD and authorize us to pursue the programs in which we are interested. The legislation would also provide guidelines, permissive language only, for other counties and cities in Nevada to function as our counties and cities function.
We are a voluntary association of local governments, and I want to emphasize the word voluntary. It is the very strength of our organization. We are not a State or federal agency, and our members participate and support WNDD because we provide a worthwhile service. We are different from most of the organizations in the State, because we do not have a single purpose. We are a unique umbrella organization that facilitates intergovernmental cooperation and communications among and between contiguous local governments, the private sector, and minority groups in our region.
We represent a seven-county region in westernmost Nevada. Incorporated in 1983 with only Carson, Douglas, Lyon, and Storey Counties, we now represent seven counties. We have added Churchill, Mineral, and Pershing Counties. We provide a proven means for small, metropolitan, and rural governments to pool their scarce financial resources, to identify common needs and opportunities; and to implement programs designed to address their local issues.
This legislation would authorize and provide guidelines only for the establishment of other regional districts in the State. It will permit WNDD to apply for and administer a variety of State and federal funds that otherwise would be done individually by each of our seven counties and four incorporated cities, most of whom lack the adequate staff at the local level to proceed with any of those programs. Senate Bill 328 would allow local governments in Nevada to pool their funds and share their professional staff. It would permit local governments to work together in addressing a broad range of common issues, concerns, and opportunities.
The bill does not require the creation of development districts, it does not appropriate general funds, it does not grant taxing authority, it does not allow local regional councils to impose regional planning rules and regulations, and it duplicates no existing programs.
I hope you will take the time to skim through the information I have provided. On page 11 (Exhibit D), you will see a listing of our board of directors. It identifies elected officials and private sector people who serve. There is a map on page 9 that shows we represent a considerable landmass in the State of Nevada. I frequently call us the third largest population center in the State.
You will also see a listing of the different projects we have been directly responsible for in our 20-year history. Since dollars tend to speak fairly loudly, I am happy to report our combined total for the 20-year period is well over $15 million. These projects would not have happened without an organization like WNDD.
Chairman O'Connell:
We appreciate your well-prepared proposal. I am wondering why you have never been part of an ongoing committee which has studied projects similar to the type of work you do. It is the program that deals with local and State financing and the distribution of tax dollars. Over the last 6 years we have met to discuss how to use tax dollars more efficiently, where we can avoid turf concerns and bring services especially to the rural counties. If the committee continues on, I would certainly invite your organization to participate.
Ms. Bentley:
We would appreciate the opportunity to join the committee.
Senator Tiffany:
Why did you decide to choose county boundaries? Some of these counties are huge with many different cultural or civic needs within their boundaries. For example, how many counties does Lake Tahoe serve? If you look at Lyon County, the cities are as different as night and day.
Ms. Bentley:
The decision whether or not to participate in the district is a decision made at the county level on behalf of the population in the county. We charge an annual assessment fee, and you will see (Exhibit D) we ask about $56,000 per year from our seven counties. In the case of Churchill County and the City of Fallon, they actually share in the cost and payment of the fee. Most of our other counties do not charge the fee back to their incorporated cities. It is a means by which we have imposed our own public accountability. The legislation itself makes us accountable. It is far more efficient for Lyon County to understand the services we provide are available not only to Fernley, but to Silver Springs as well. We also recognize the fact that many federal programs deal strictly with county boundaries.
Senator Tiffany:
Is it mostly because you ask for the funds from the county?
Ms. Bentley:
It is primarily because of the federal requirements. As I think about it, the federal government would not recognize any regions less than a county, or a public official could not be held accountable for anything less than a county or an incorporated city. Most states, except for Nevada and a few very small eastern states, have designated substate regions, where the state itself actually defines what the areas should be. It would be your choice to define them beyond county boundaries. We deal with the counties, in our case, which are the geopolitical boundaries.
Senator Mark E. Amodei, Capital Senatorial District:
For the record, I have nothing to add to Ms. Bentley’s comments.
Senator Tiffany:
It looks like you want the grant money to go straight to the regional district, and you want the authority to accept these funds. What is the other oversight of this? Usually when money is given, there is an elected official involved in order to have public scrutiny. Could you comment on that?
Ms. Bentley:
Are you talking about grant funds in general?
Senator Tiffany:
Yes, I am looking at section 19 of the bill. It requires the State grant money for regional development districts.
Ms. Bentley:
The formula included is modeled after legislation in Minnesota. Most states actually provide financial support from general funds to the regional councils. Then again, most states are blanketed with regional councils. We think the rest of rural Nevada could benefit from an organization like ours if they choose to do so. It may require an incentive in order to get the remainder of Nevada to work together, because their economies and population levels are different than our seven counties. The funding formula is there solely for the purpose of defining how State-appropriated funds would be distributed.
There is no companion appropriation bill with this bill. We are fairly autonomous in our 20 years of operation. At this point in time, we really value our autonomy and are not looking for State funding. Should other districts come into place, and the State use the organizations as a delivery mechanism, funds might be appropriated. It is not our request for now.
Senator Tiffany:
The federal grants did not require matching State funds?
Ms. Bentley:
We have done several programs without requesting any matching State funds. The majority of the board members are local elected officials. We recognize their funds are limited. We have done the best we could with what we have, and I am quite proud of our accomplishments. At this point, we have done it all without having to request any direct funding from the State.
Chairman O'Connell:
Senator Amodei, thank you for bringing this to our attention. I will close the hearing on S.B. 328 and open the hearing on S.B. 331.
SENATE BILL 331: Makes various changes to employment practices governing state personnel. (BDR 23-983)
Senator Amodei:
I am here in support of S.B. 331. This bill was requested to provide some additional due process procedures in State personnel employment procedures. In looking through the provisions, they appear to me to be very broad-based. It is not unreasonable to ask for these protections in our personnel system. I request your objective evaluation of the measure. Mr. Wolff and Mr. Tarantino are here to provide a section-by-section analysis of the bill.
Gary H. Wolff, Lobbyist, Teamsters Local 14:
Senate Bill 331 is aboutfairness and equity to State employees. Section 1 deals with allowing an Employee-Management Committee (EMC) to issue subpoenas to State employees. These employees would appear, without fear of retribution, on behalf of other State employees who have grievances or complaints about their employers.
The EMC was first designed to allow an employee to appear before the committee to air their grievances or complaints without the use of an attorney or representative. This is a very complex issue today. I have a personal case pending which has not been heard after 1 year and 4 months. When we hear these cases, we often ask employees to be our witnesses. We beg them to come in. They have to use their own annual leave because they cannot appear on State time. To summarize, the State makes their case at no cost, but the employee on the other side is charged with annual leave. In some cases, these employees actually fear some reprisal for appearing on behalf of another employee.
Section 1 also deals with the rules pertaining to subpoena services. Basically, any cost associated with subpoenas would be 95 percent attributed to us in defending the employee, because the State does not have to subpoena their own managers and witnesses.
In section 4 of S.B. 331, the only people who have true rights to representation under State law are under the Peace Officers Bill of Rights. Currently, there is an argument about whether the average State employee is protected under the Weingarten Rights. They are also subject to internal affairs and investigations. Even under the Peace Officers Bill of Rights, there is nothing in the law that says what reasonable time is. We do not feel, on any internal matter, it is unreasonable to give at least 48-hours notice to an employee who is asked to appear as a witness, or who is under investigation. We are not talking about criminal matters. We are talking strictly about an internal matter where they have the right to have a representative as in the Weingarten Rights or under the Peace Officers Bill of Rights. We do not think 48 hours is unreasonable.
We had a case where an employee was told he was being investigated on an issue. Mr. Tarantino talked with the employee before he left on a trip, and we thought he would represent the employee upon his return. Shortly thereafter, the employee was told to find someone else to represent him. I had to run from another meeting to be there to represent him. I do not think 48 hours is unreasonable.
Sections 5 and 6 deal with classified employees who are looking for promotions through the test-taking process. There are provisions for provisional employees, but there is nothing for acting employees. There seems to be some verbiage confusion in these two categories.
Recently in Las Vegas, there was an opening for sergeants in the highway patrol. People applied, studied, went through both written and oral tests, and were placed on an eligibility list. It is very demoralizing in an agency to promote somebody when they have not taken a test or to promote a person who has failed the test. In this case, a person was promoted to the rank of sergeant who had failed the test. It flies in the face of justice. There seems to be some confusion with the wording in these sections. I have talked to Jeanne Greene, Director of Personnel, about working through these sections.
Section 7 has to do with performance reports. Recently, an employee was given an evaluation report by his supervisor. After he and the supervisor had signed the evaluation, the supervisor’s superior disagreed with the evaluation and said it should be changed. The supervisor refused to do so, because this was how he saw it. It turned into quite an ordeal. We are asking to allow the supervisor to do the evaluation and secure his superior’s approval, so that once the employee signs the evaluation it cannot be changed. We do not feel anybody should be adding anything to the evaluation once it has gone through the system. We would appreciate your support on this issue.
Section 8 deals with the EMC. What worked at one time is not working now. Some departments are filing court briefs and challenging the authority of the EMC. My case is 14 months old and we are asking to have an arbitrator chosen instead of using EMC. An arbitrator would determine costs associated with the grievance. It would also expedite these grievances so they can be heard in a timely manner. When someone has a grievance pending for over a year, it is very demoralizing. They should not have to wait for over a year.
I was a policeman for 31 years and I have never seen anybody go to jail before they have a fair trial in this country. In the State system, if an appointing authority decides to terminate or suspend an employee, they proceed with the action. You will hear testimony from people who have lost their medical insurance and everything else. Eventually they got their jobs back, but in the meantime they have almost been forced into bankruptcy.
The last section of S.B. 331 is administrative only. We are asking an employee not be dismissed or suspended until they have had a hearing. These cases end in litigation. We have three cases right now with people who are working their way back into the system. It costs the State a lot of money to fight these cases.
Ms. Greene and I have discussed this issue. I do not know what a reasonable time frame would be. I do know when people are gone for a period of time, finally have the hearing and they get their job back, the State has to pay the employee back wages plus associated costs. Perhaps 90 days is a reasonable time frame.
Walter R. Tarantino, Lobbyist, Nevada Highway Patrol Association:
I will combine sections 2 and 8 because they both deal with the EMC. This bill draft attempts to rectify the fact the EMC does not have subpoena powers. You are at the mercy of the State agency to produce witnesses. I had a recent case with the Department of Corrections where the grievant requested five witnesses. The department made one witness available, and he was also on their witness list. The other four witnesses the grievant requested to testify on his behalf were not on the agency witness list and were not produced. Section 2 would rectify this situation and provide a more level playing field where we have the ability as well to call witnesses. Does that happen all the time? No, but it happens enough to cause concern. There are agencies and departments that try to make everyone available, but often that is not the case.
Section 8 provides a choice for the employee to choose arbitration rather than the EMC. I suggest it will not be overused or abused, but the exception to the rule. Most employees will go to the EMC. I have found through experience occasionally there is a very complex case involving performance evaluations. Someone was given a “needs improvement” with very technical issues and a multiple number of witnesses. It becomes impossible to schedule with the EMC because the EMC has a backlog of grievances to schedule. In complex issues with a large number of witnesses, you are given 1 to 1 1/2 hours to present your case. Grievants and State employees do not feel they have been afforded their day in court or have been provided the proper amount of justice. They are waiting for months and when the hearing comes, they are told they have a very short amount of time to present their case.
This would provide an alternative form. The EMC would be used, but for highly technical cases with multiple witnesses, we should have the ability to go to arbitration. The person would not feel rushed, and would have an opportunity to present their case.
Senator Tiffany:
In section 8 of the bill, when you go to the EMC, is there an appeal process after the commission?
Mr. Tarantino:
Judicial review is the appeal. The EMC decisions are considered a Department of Personnel final agency decision. The redress is to go to court if you are not satisfied with the decision. Unions and employee associations do not represent many State employees. If they do not like the decision, their resolve is to file for judicial review and go to court.
Senator Tiffany:
There is no other appeal process except through the court and that is why you want to create this final arbitration.
Mr. Tarantino:
That is correct. This would be an alternative to the EMC, an option for the employee.
Senator Care:
In section 8, why do you use the American Arbitration Association (AAA)? I find working with the AAA to be a very expensive and lengthy process.
Mr. Tarantino:
I am not in a position to agree with your perception. We have dealt with the AAA and the Federal Mediation and Conciliation Service (FMCS). Again, it works best in certain cities and counties or with other employers and unions where you can agree to a panel of standing arbitrators. If the parties say we like these five names, it will constitute the panel. I think there is room to work with the language here. I would agree it might not be prudent to list the AAA exclusively. You may want to include language so if the parties agree, they would agree to a standing panel and then draw from the panel. I would agree to that idea.
I have an additional comment on section 9 of S.B. 331. There have been quite a few occasions where employees were successfully reinstated with full back pay, but were terminated in 1 fiscal year and reinstated in another fiscal year, so the employee encountered 3 or 4 months of waiting to have their day in court. Consequently, when they went back to work, back pay was not received because it was a stale claim from a prior fiscal year. The stale claim process includes going before the board of examiners and it causes an additional lapse of 2 or 3 months before the back pay is reimbursed. If we had a due process procedure where the employee still maintained employment, the situation would be rectified. The bill draft does give the employer the ability to place the employee in some kind of administrative capacity while they are waiting, although not necessarily in their regular job.
In section 7, Mr. Wolff referred to a situation where an employee got an above‑standard evaluation from his supervisor and the supervisor’s supervisor did not agree. When the supervisor refused to change the evaluation, it was not issued to the employee until after the 30 days. After 30 days, the employee got a standard evaluation, rather than the above-standard evaluation he had signed. In addition, administrators attached documents to the performance evaluation rebutting the above-standard evaluation and included their thoughts as to why the employee was not above standard.
We are requesting, after the supervisor and employee sign off on the document, it is filed in the employee’s personnel file. Comments from people who disagree should not be included, especially if they have never directly supervised the employee.
Mr. Wolff discussed the reasonable time to obtain representation in section 4 of S.B. 331. He addressed the expansion of rights for State employees who are not peace officers. Right now, NRS 298 provides those employees are entitled to a representative or an attorney. You could construe section 4 to grant those rights to all State employees. In addition, we are looking at a 48‑hour rule as being reasonable.
Mr. Wolff had mentioned sections 5 and 6 need more work.
Senator Raggio:
I do not understand the reason for section 4, subsection 3. If a criminal investigation is being conducted, or a criminal action is pending which involves an act also the subject of an internal administrative investigation, this would provide the administrative investigation would not be continued until the criminal matter is resolved. What is the reasoning here? If you limit the ability to conduct an investigation until a criminal matter is resolved, it could be a long time and anything pertinent to the investigation could be lost in the process. Is that the process?
Mr. Wolff:
There is a system called guaranty. Guaranty means you have no choice but to answer under the threat of being terminated. If there is a parallel issue going on, theoretically you are not supposed to exchange data received in a guaranty to a criminal investigation. We know for a fact it does happen. We are asking to suspend the administrative part until the criminal matter is resolved. If it is criminal to any degree, this employee will be gone anyway. If it is a minor thing, it will not take a long time. For example, a petty theft problem will be done in a couple of weeks. If it is a major criminal investigation, this would not even play a part. We do not want to see a person give up their constitutional rights.
The Reno Police Department had an issue where an ex-director was under investigation. I represented some dispatchers who were terrified because they had knowledge about people who were exchanging information on internal matters. Maybe it cannot be stopped, but the law says they cannot do it. This is not a big issue and if it is minor, it will take care of itself. I do not think a person should give up their rights if they are charged criminally when they are under the threat of being terminated under guaranty, and information is given and then shared.
Mr. Tarantino:
Did I answer the question?
Senator Raggio:
As far as the direct investigation of the employee, this would seem to limit any investigation whatsoever.
Mr. Tarantino:
That is not the intent.
Sections 5 and 6 need some work. The definitions do not match the intent of the bill draft. We are not looking to change the Nevada Administrative Code (NAC), which deals with provisional appointments and provisional employees. We were trying to address acting employees, and there is no definition in the NAC to provide for an acting employee. As Mr. Wolff mentioned, an employee who did not take the sergeant’s examination or the supervisory examination or who failed the examination, is placed in an acting supervisory position. Once a person is in the acting supervisory position for 6 months, a form called an NPD 19 (Nevada Personnel Department) is filed. This is the vehicle currently in the law, which allows employees who are assuming additional responsibilities beyond their job description to be awarded the position. We are not suggesting the NPD 19 process should be invalidated. When it is used correctly, it is an effective tool.
We want to protect employees who are given additional duties and assignments, but we were trying to address provisions in section 5. We need to work out the language to add protections so agencies cannot summarily place employees in acting supervisory positions, leave them there for 6 months, and then fill out an NPD 19 to make them a supervisor. It is extremely frustrating for employees who have studied hard, tested, and achieved a high score on the eligibility list. We concede this section needs some additional work.
Ron Cuzze, State Peace Officers Council of Nevada:
I am speaking today at the request of Mr. Wolff. We are very interested in section 8, which has to do with the arbitrator. The State is spending a lot of money on this antiquated process. For example, a parole and probation officer and his fellow workers put in a request for compensatory time. The EMC rendered a decision twice. The second time was October 1, 1996, where they fully concurred with the officers in accordance with the Code of Federal Regulations (CFR) 553.23, which said they must be compensated at time and one-half.
The department refused to adhere to EMC findings. The U.S. Department of Justice got involved, and the State had to pay over $10,000 to the six employees. I do not have the figures on all the rest, but this was after the EMC had told them it was illegal. It was ridiculous. If we are going to have either an EMC or an arbitrator, it has to be binding. Section 8 has to have some teeth.
State administrators can no longer ignore the EMC decisions. As Mr. Tarantino and Mr. Wolff said, when the decisions are ignored, it ends up in the courts. We are winning most of those cases and winning dollars. If administrators would adhere to the EMC decision, it might save the State some money. Whether it is an arbitrator, the EMC, or appealed to the Personnel Commission, the administrators have to adhere to what is being said.
Chairman O'Connell:
I realize there are people who want to speak in opposition to the bill, but we are almost out of time. We will begin our next meeting on Wednesday with the people who would like to speak in opposition.
Is there someone else who wishes to speak in favor of the bill?
Linda F. Covelli, Lobbyist, State of Nevada Employees Association #4041 (SNEA/AFSCME)
First, I do agree with the testimony. I support the due process measure, but in section 8 one thing was not identified. When meeting with the EMC, if there is a tie, the employee automatically loses. Going to a final arbitrator would eliminate this from happening. It has happened to me on two occasions. If it happens just once, where an employee loses because it is a tie, it is once too often.
Chairman O’Connell:
We have time to bring forward people who wish to speak against the bill.
Jeanne Greene, Director, Department of Personnel:
We are here to speak in opposition to this bill. Sections 2 and 3 authorize the issuance of subpoenas. I have reviewed this section with the EMC chairman and the former chairman and they believe this change would assist them in making better-informed decisions. Currently, the EMC has no authority to compel testimony. The former chairman cited occasions when key witnesses or documentation would have provided the committee with a more complete view of the circumstances. The Department of Personnel is not opposed to sections 2 and 3.
Section 4 deals with disciplinary investigations. What level of discipline are they talking about? Does it include oral reprimands, written reprimands, or below‑standard evaluations? If it goes down to below standard, it really would hamper our ability. Prior to conducting an administrative investigation, management would have to inform every employee potentially affected by the outcome. This could create morale problems and provide the employees the opportunity to conceal information, which would reflect negatively on them. In addition, having attorneys and employee representatives present during this initial investigation period would hinder our ability to conduct the investigation in an efficient and timely manner.
Regarding Senator Raggio’s question on the criminal investigations, we also have a question. What does it mean the criminal matter is resolved? Does it mean when it goes to trial, it is totally adjudicated? If it is appealed, does it have to go through that process? If so, the person could be on administrative leave for 2 to 3 years. Those are some questions on that issue.
Chairman O'Connell:
Would you try to get together with Mr. Wolff afterwards and see if you can resolve your specific questions or at least get some answers?
Ms. Greene:
We are concerned about section 5 of S.B. 331, but I think both Mr. Wolff and Mr. Tarantino indicated the language is not what they really wanted. The language is contradictory to a Legislative Counsel Bureau’s recommendation directing us to open recruitments. I will reserve my comments on both sections.
I would like some clarification on section 7. Can the appointing authority change the evaluation? I know it said they could not direct the supervisor to change the evaluation, but could the appointing authority change it when they receive it? I think the appointing authority should have the ability. They are charged with the mission of the agency and are ultimately accountable. They should have the ability to change an evaluation if they feel it is appropriate.
Chairman O'Connell:
The concern raised was in changing it after the employee knew what was in it and had signed it.
Ms. Greene:
Right now it is standard procedure for the evaluation to go through the chain of command. Every individual who signs off on it has an opportunity to put comments on it. I definitely believe the employee should receive a copy of all of the comments, but I feel the appointing authority should have the ultimate responsibility.
Section 8 deals with the EMC and grievances. Just a point of clarification, a grievance is filed with the employee’s supervisor and goes up through the chain of command within the agency. If it is not resolved within the agency, it goes to the EMC. The EMC is not the first step in the grievance process.
Governor Guinn has appointed new individuals to the EMC in the last 2 months. We have an almost totally new committee and a kind of change in direction. We have money in the budget to send both the chairman and the vice chairman to the Nevada Judicial College to receive training in administrative hearings. I believe there will be some significant changes in the EMC. I do not know if arbitration is really necessary at this point in time.
The last section deals with the hearings process. The current disciplinary process for State employees requires very specific time-consuming steps associated with progressive discipline. There are many safeguards written into statute and regulation that provide protection to employees including a pre‑disciplinary hearing with the appointing authority or their designated representative. The hearing is held before discipline is imposed. If the recommendation is upheld by the appointing authority, then the employee can be suspended or terminated and would appeal to the hearing officer.
About 75 percent of the cases that go before the hearing officers are upheld. We believe if this provision were enacted, it could have a significant fiscal impact to the State. The employee would be placed on administrative leave or reassigned until the case was heard. Oftentimes there are delays requested by the employee’s attorney or the State attorney. Sometimes they are not heard in a timely manner.
Chairman O'Connell:
Would you like to comment on Ms. Covelli’s testimony? She said if there is a tie, the tie always goes to the State and the employee always loses.
Ms. Greene:
The EMC is ruling on whether to uphold the grievance. I looked at statistics last session and at that point there had not been a tie in the previous 5 years. Maybe a tie has occurred in the last 2 years.
Chairman O'Connell:
Would you please check into this issue for us?
Senator Raggio:
We will request a fiscal note, and it might be helpful if we requested it at this time.
Ms. Greene:
We are working on the fiscal note now. I believe it is due tomorrow.
Phillip J. Brittenham, Chief Personnel Officer, Department of Motor Vehicles: For the record, Mr. Brittenham submitted information in opposition to the bill (Exhibit E).
Chairman O'Connell:
May I ask you to come back and speak to the committee on Wednesday? We are sorry we have these time constraints today. We will look forward to seeing you again on Wednesday and we will begin our hearing with the remaining testimony.
We have received a bill from the Nevada State Contractors Board.
BILL DRAFT REQUEST (BDR) 28-487: Makes various changes regarding bidding on contracts for public works of this state. (Later introduced as S.B. 491.)
Senator Raggio moved to introduce BDR 28-487.
SENATOR TIFFANY SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR TOWNSEND WAS ABSENT FOR THE VOTE.)
*****
We will not hear S.B. 335 today. It will be rescheduled.
Chairman O'Connell:
The meeting is adjourned at 3:28 p.m.
Alice Nevin,
Committee Secretary
APPROVED BY:
Senator Ann O'Connell, Chairman
DATE: