MINUTES OF THE
SENATE Committee on Human Resources and Facilities
Seventy-second Session
April 9, 2003
The Senate Committee on Human Resources and Facilities was called to order by Vice Chairman Barbara K. Cegavske, at 1:45 p.m., on Wednesday, April 9, 2003, in Room 2135 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4406, 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 Barbara K. Cegavske, Vice Chairman
Senator Maurice E. Washington
Senator Dennis Nolan
Senator Joseph Neal
Senator Bernice Mathews
COMMITTEE MEMBERS ABSENT:
Senator Raymond D. Rawson, Chairman (Excused)
GUEST LEGISLATORS PRESENT:
Assemblywoman Christina R. Giunchigliani, Assembly District No. 9
STAFF MEMBERS PRESENT:
H. Pepper Sturm, Committee Policy Analyst
Patricia Vardakis, Committee Secretary
OTHERS PRESENT:
Thomas M. Peacock, Associate Vice Principal, Human Resources, Community College of Southern Nevada
Dorothy L. (Dotty) Merrill, Lobbyist, Washoe County School District
George Ann Rice, Assistant Superintendent, Human Resources Division, Clark County School District
James W. Penrose, Lobbyist, Nevada State Education Association
Laura Dancer, Assistant Superintendent, Human Resources Division, Washoe County School District
Keith Rheault, Deputy Superintendent for Instructional, Research, and Evaluation Services, Department of Education
Charles E. Moore, Securities Administrator, Office of the Secretary of State
Rick Bennett, Lobbyist, University of Nevada, Las Vegas
Vice Chairman Cegavske:
We will open the hearing on Senate Bill (S.B.) 457.
SENATE BILL 457: Prohibits use of false or misleading educational credentials. (BDR 34-1311)
Assemblywoman Christina R. Giunchigliani, Assembly District No. 9:
This bill does two things. It deals with diploma mills, and will set a State policy for employment purposes.
Thomas M. Peacock, Associate Vice Principal, Human Resources, Community College of Southern Nevada:
We need to establish sound educational standards and quality business practices for the protection of the citizens of Nevada. Diploma-mill is defined as an organization that awards degrees without requiring students to meet educational standards for such degrees. It has been estimated there are 300 unaccredited universities operating in the United States. It is not uncommon for a fake school to award as many as 500 Ph.D. diplomas each month. Data shows that a single phony school can earn as much as $10 million annually. The General Accounting Office (GAO), in a letter dated November 21, 2002, to United States Senator Susan Collins, indicated through a sting operation they purchased a degree. They learned the owner is a disbarred attorney who resides in Las Vegas. The owner informed the GAO he had sold nearly 100 degrees in the 2 years since starting his business. He also told the GAO that he started the business after viewing a television exposé about the prosecution of a diploma-mill operation. He decided he could more successfully operate a diploma-mill. The owner also claimed he sells the degrees for self‑esteem purposes, not to satisfy employee requirements.
The growth is attributed to the closure of the FBI task force, the indifference of most state law enforcement agencies, the minimal interest by the media, and the ease of using the Internet to start a fake industry. Along with the growth in diploma mills, we now have a growth in counterfeit accrediting agencies, which occurs at the international level as well. This bill is a straightforward approach which requires a minimal amount of regulation. It would make diploma-mill degrees useless in the business world. The only way to stop this criminal activity is to reduce the demand and attack each mill when it begins operation. The market for false credentials should be eliminated in this State. Employers will receive protection from those who deliberately deceive them using false credentials. Legitimate providers of higher education will benefit by removing the diploma mill competition. Job seekers holding legitimate degrees will no longer need to compete with individuals purchasing bogus degrees from the Internet or the mail. Those who simply provide a counterfeit or a tampered credential would now face a statute that is specific and unambiguous as to the consequences of such actions.
Senator Wiener:
Current law addresses those who are granting the fake diplomas, and now you are adding those who use them. The intention is to reduce the demand for these documents. What is the cost of a false diploma?
Mr. Peacock:
The cost of obtaining a false degree could be between $900 and $2000.
Senator Neal:
Page 2, line 1 states “‘knowingly’ has the meaning ascribed to it in NRS 193.017.” You are saying, in statute, if you have the information that would constitute the fact you knew it was illegal, you would be liable for criminal prosecution.
Assemblywoman Giunchigliani:
If an individual does not know a program is a diploma-mill, and they believed they were taking a legitimate distance education course, this would apply to the place issuing the diploma as well as the receiver of the document. Is that your concern? It is unlawful for a person to knowingly use or attempt to use a misleading document. The intent is clarified in section 1, subsection 1.
Senator Neal:
You would be correct if you did not define it by making reference to this particular section of Nevada Revised Statutes on page 2, line 2. The section states “knowingly” imports a knowledge that the facts exist which constitute the act or omission of a crime, and does not require knowledge of its unlawfulness. Knowledge of any particular fact may be inferred from the knowledge of such other facts as should put an ordinarily prudent person upon inquiry.
Mr. Peacock:
There are unsuspecting people who will be sold a bill of goods. As I understand it, the person who purchases the credential from the diploma-mill, and believes it is a legitimate purchase, did not participate in a violation.
Senator Neal:
You may wish to change the description. The intention of the bill would be met if you were to delete section 1, subsection 3.
Dorothy L. (Dotty) Merrill, Lobbyist, Washoe County School District:
The Washoe County School District is in support of S.B. 457. An Internet site offering diplomas for sale indicated there was no need for course work or credits. One could obtain a diploma in a variety of areas.
Senator Neal:
How would you handle the situation where a person receives an honorary degree, or one based upon a person’s life experience?
Ms. Merrill:
Individuals who receive an honorary degree are typically well recognized for a particular contribution. If those individuals are applying for a position, I believe they are well aware of how those degrees are viewed, and will indicate the degree is honorary. Additionally, most employers require a photocopy of the degree. A degree based upon life experience is going to be explained when one looks at the document.
SENATOR WIENER MOVED TO AMEND AND DO PASS AS AMENDED S.B. 457.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS RAWSON AND NOLAN WERE ABSENT FOR THE VOTE.)
*****
Vice Chairman Cegavske:
Is there anyone here in support of S.B. 393?
SENATE BILL 393: Provides for release of certain records of pupils under certain circumstances. (BDR 5-318)
SENATOR NEAL MOVED TO INDEFINITELY POSTPONE S.B. 393.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS RAWSON AND NOLAN WERE ABSENT FOR THE VOTE.)
*****
Vice Chairman Cegavske:
We will open the hearing on S.B. 460.
SENATE BILL 460: Revises provisions governing licensed employees of school districts. (BDR 34-450)
George Ann Rice, Assistant Superintendent, Human Resources Division, Clark County School District:
I speak in favor of S.B. 460. The grounds for which a teacher may be suspended, demoted, or dismissed are recorded in statute. There are a number of grounds that are of such serious nature, it is not necessary to first admonish a teacher and give the teacher a reasonable period to improve. Senate Bill 460 revises the definition of immorality applicable to the licensed employees of a school district to include the commission of certain drug-related offenses and sexual conduct or attempted sexual conduct with a pupil. Research has revealed the attempt by a teacher to seduce a student is almost as damaging as actual sexual contact. A school district should be able to suspend and begin termination proceedings without a prior admonition under the circumstances of the misconduct outlined in the bill. Additionally, the bill allows for the termination of any teacher who fails to maintain a valid license without providing certain administrative procedures.
James W. Penrose, Lobbyist, Nevada State Education Association:
The Nevada State Education Association has no objection to the definition of immorality. Our concern relates to sections 2 and 3 of the bill. Previously the Clark County School District had a practice to summarily terminate a teacher who fails to maintain a valid teaching license for any reason. The effect of that process was to deprive the teacher of any opportunity to contest the termination. That changed in 2000 when the Nevada Supreme Court held, in a case involving the district, even a teacher with a lapsed license was entitled to the procedural protections in NRS391. Those procedures can take some time to exhaust. Dr. Rice has agreed in concept to an amendment to the bill, not yet finalized, to continue the practice of suspending a teacher whose license lapses. A person would then have a period of approximately 60 days to reinstate the license. If the individual is successful in reinstating the license, they are not terminated. At some point in the 60-day period they are entitled to a hearing, in order to avoid those cases where an error has occurred.
Vice Chairman Cegavske:
It has been suggested you list all the concepts, and have the Legal Division of the Legislative Counsel Bureau propose language before the meeting is over.
Laura Dancer, Assistant Superintendent, Human Resources Division, Washoe County School District:
I will read prepared testimony in support of S.B. 460 (Exhibit C).
Senator Neal:
What do the additions to the definitions of immorality on page 2, lines 11 through 13, represent?
Ms. Rice:
Some of the definitions you are referring to are: the annoyance or molestation of a minor; opening or maintaining a place for unlawful sale, gift, or use of controlled substance; offering, attempting, or commission of an authorized act related to controlled or counterfeit substance unlawfully; offering, attempting, or commission of unauthorized act relating to manufacture or compounding of certain controlled substances; substitution of a substance in unlawful transactions; unlawful acts relating to record-keeping and inspections; and knowingly keeping or maintaining a place where controlled substances are unlawfully used, kept, or sold.
Keith Rheault, Deputy Superintendent for Instructional, Research, and Evaluation Services, Department of Education:
I am here to support the bill and the concept of the amendment mentioned here today. The 60 days would allow time to review a request for medical or administrative relief.
Vice Chairman Cegavske:
We will close the hearing on S.B. 460 and open the hearing on S.B. 456.
SENATE BILL 456: Revises various provisions of Uniform Athletes’ Agents Act. (BDR 34-153)
Charles E. Moore, Securities Administrator, Office of the Secretary of State:
The Uniform Athletes’ Agents Act was passed in 2001. The responsibility for administering the act was delegated to the Securities Division of the Office of the Secretary of State. Most of S.B. 456 relates to enforcement provisions concerning violations of the statute. Since this act was passed in 2001 we have registered 10 agents. Section 2 of the bill provides the division with the authority to conduct investigations. Original legislation provided any violation of the act constituted a gross misdemeanor, but did not specify who would carry out the prosecution. We have inserted a provision the attorney general may prosecute the violation, or the district attorney in the appropriate county, should the attorney general decline to prosecute. Section 3 of the bill extends the authority to bring administrative actions. The original legislation provided the division the authority to suspend or revoke a license. This bill provides the ability to cease and desist, or censure registered persons. Section 4 provides the division with the authority to conduct administrative hearings for violations of the act. Originally, the Office of the Secretary of State had the authority to issue subpoenas for any material relevant to the administration of the act, but did not address such things as subpoenas to require testimony, and provisions to enforce a subpoena. This section authorizes such things.
Section 5 provides investigative files would not constitute public records in the event there were no violations found. That is a provision contained in the Nevada Securities Act as well, and the purpose is to protect individuals from damaging characterization in the event an investigation were being conducted. If, after completing an investigation, a criminal action is pursued, the records would then be made public. Section 6 specifies when jurisdiction of the act begins. Sections 7, 8, and 9 incorporate the proposed changes requested to the original Uniform Athletes’ Agents Act. Section 10 provides additional authority to the Securities Division of the Office of the Secretary of State to adopt regulations. Section 11 provides records that an athlete’s agent is required to maintain can be kept in any medium, as long as they are readily available. Section 12 expands the criminal penalties to include a violation of any regulations or orders issued.
Vice Chairman Cegavske:
This legislation cleans up the original bill that was passed in 2001.
Senator Wiener:
Page 3, line 11, mentions a fine of not more than $25,000. Does this address an ongoing violation versus a one-time violation?
Mr. Moore:
I do not believe there is any distinction between types of violations.
Senator Wiener:
Page 3, line 32 lists considerations for the determination of sanctions, such as the timing and nature of the conduct and the context in which it occurred. Please give an example of a violation that would incorporate those elements.
Mr. Moore:
The authority to suspend or revoke may be on a regulatory action by another state that has suspended an agent’s license. Also, if a person advertised or solicited an athlete in Nevada, but no contract was signed, that might be justification for issuing a cease-and-desist order, or censuring the person. If there was a violation once there is a contract, the parties would take it to the National Collegiate Athletic Association or to the Security Division, Office of the Secretary of State.
Senator Neal:
I do not see where there is protection to the student, or the definition of an agent in this bill.
Mr. Moore:
The protections afforded to students are in the original bill. These are enforcing housekeeping changes. The definition of athlete agent is contained in the original statute to mean a natural person who enters into a contract of agency with a student athlete, or directly or indirectly recruits or solicits a student athlete to enter into such a contract. The term includes a natural person who represents to the public he is an agent, and does not include the spouse, parent, sibling, grandparent, or guardian of the student athlete. It is designed to deal with agents who solicit student athletes to sign a contract, which may declare them ineligible.
Page 2, lines 19 through 38, states the Office of the Secretary of State may, without a prior hearing, issue a summary order against a person, directing that person to cease and desist. Where does it allow the agent to question the order?
Mr. Moore:
Nevada Revised Statutes states:
NRS 233B.121 Notice of hearing in contested case; contents of notice; representation by counsel; opportunity to respond and present evidence; informal disposition; contents of record; transcriptions; findings of fact. 1. In a contested case, all parties must be afforded an opportunity for hearing after reasonable notice. 2. The notice must include: (a) A statement of the time, place and nature of the hearing. (b) A statement of the legal authority and jurisdiction under which the hearing is to be held.
(c) A reference to the particular sections of the statutes and regulations involved. (d) A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement must be furnished. 3. Any party is entitled to be represented by counsel. 4. Opportunity must be afforded all parties to respond and present evidence and argument on all issues involved. An agency may by regulation authorize the payment of fees and reimbursement for mileage to witnesses in the same amounts and under the same conditions as for witnesses in the courts of this state. 5. Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default. If an informal disposition is made, the parties may waive the requirement for findings of fact and conclusions of law. 6. The record in a contested case must include: (a) All pleadings, motions and intermediate rulings. (b) Evidence received or considered. (c) A statement of matters officially noticed. (d) Questions and offers of proof and objections, and rulings thereon. (e) Proposed findings and exceptions. (f) Any decision, opinion or report by the hearing officer presiding at the hearing. 7. Oral proceedings, or any part thereof, must be transcribed on request of any party. 8. Findings of fact must be based exclusively on substantial evidence and on matters officially noticed.
Senator Neal:
Who conducts the investigations and how does the Office of the Secretary of State get information?
Mr. Moore:
We have five compliance audit investigators who have been in regulation of securities for a number of years, and seven investigators who are peace officers authorized to make arrests. Information comes in the form of a complaint from a member of the general public, or from a student athlete who has been solicited by an agent. It could also be from a newspaper advertisement portraying an individual to be an agent. There are provisions within the original statutes if there is not certain language included in the contract, it is null and void. There are various remedies. Schools can bring legal action against the unscrupulous agent to recover monies. There were numerous holes in the original statute and these housekeeping provisions will help us to enforce existing statute.
Rick Bennett, Lobbyist, University of Nevada, Las Vegas:
It is my understanding the bill before you is based upon the experience of the past 2 years. We support the bill.
SENATOR WIENER MOVED TO DO PASS S.B. 456.
SENATOR NOLAN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR NEAL VOTED NO. SENATOR RAWSON WAS ABSENT FOR THE VOTE.)
*****
Vice Chairman Cegavske:
We will reopen the hearing on S.B. 460.
Mr. Penrose:
We have agreed on a concept to amend the bill. When a teacher’s license lapses, the teacher will be issued a notice of suspension by the district. The teacher will then have a period of time, the longer of 60 days or any extension or waiver granted, to clear the problem. During a hearing the teacher is entitled to representation by an attorney or a representative of the association to present evidence. The hearing officer will have the authority to grant a further extension of time. When the period expires, if the person can be reinstated, they will fill the position they formerly occupied. If they are not able to fix it, their employment is deemed to end.
SENATOR WIENER MOVED TO AMEND AND DO PASS S.B. 460.
SENATOR NOLAN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAWSON WAS ABSENT FOR THE VOTE.)
*****
Senator Washington:
I would like to reconsider my vote on S.B. 393. We can bring it back up on the Senate Floor on Friday. Apparently there is a situation for which this bill was presented.
Senator Nolan:
If Senator Washington is making a motion to reconsider S.B. 393, I would second it for the purpose of discussion.
SENATOR WASHINGTON MOVED TO RESCIND THE PREVIOUS ACTION TAKEN ON S.B. 393.
SENATOR NOLAN SECONDED THE MOTION.
Senator Washington:
Evidently the Douglas County School District has indicated they are not required to release the records of a student when they are retained or in detention. Therefore, the Nevada Sheriff’s and Chief’s Association and the Washoe County Sheriff’s Office have asked for this bill.
Senator Wiener:
The people who were against this bill have left the committee room and do not have an opportunity to testify.
Senator Nolan:
If we are to reconsider the bill and listen to testimony, then we would vote on the bill immediately after the discussion.
THE MOTION FAILED. (SENATOR RAWSON WAS ABSENT FOR THE VOTE. SENATORS NEAL, MATHEWS AND WIENER VOTED NO.)
*****
Vice Chairman Cegavske:
There being no further business, this concludes the meeting. We are adjourned at 3:06 p.m.
RESPECTFULLY SUBMITTED:
Cynthia Cook,
Committee Secretary
APPROVED BY:
Senator Barbara K. Cegavske, Vice Chairman
DATE: