MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
March 21, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:00 a.m., on Friday, March 21, 2003, in Room 2149 of the Legislative Building, Carson City, 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 Mark Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Assemblyman John C. Carpenter, Assembly District No. 33
Assemblyman John W. Marvel, Assembly District No. 32
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Barbara Moss, Committee Secretary
Lora Nay, Committee Secretary
OTHERS PRESENT:
Kelly Buckner, Vice Chairman Elko County Fair Board
Sheri Eklund-Brown, Chairman, Board of Commissioners, Elko County
Barbara Owen
Jim J. Avance, Lobbyist
Anthony N. Cabot, Attorney
Dennis K. Neilander, Chairman, State Gaming Control Board
Jerry Bussell, Special Advisor on Homeland Security, Office of the Governor
Teresa P. Froncek Rankin, Appeals Officer, Appeals, Hearings Division, Department of Administration
Timothy Hay, Chief Deputy Attorney General, Bureau of Consumer Protection, Office of the Attorney General
Dave Noble, Assistant General Counsel, Public Utilities Commission of Nevada
Jeanne Greene, Director, Department of Personnel
Chairman Amodei:
We will open the hearing with testimony on Senate Bill 3.
SENATE BILL 3: Reserves portion of certain gaming license fees from off-track pari-mutuel wagering to augment purses for horse racing in certain counties. (BDR 41-41)
Assemblyman John C. Carpenter, Assembly District No. 33:
I am here today pinch-hitting for Senator Rhoads. Senate Bill (S.B.) 3 is a horse‑racing bill providing some money to the rural counties to promote their horse racing and fair activities. This bill would provide $216,000 to Elko, Humboldt, and White Pine Counties, Winnemucca, and to Ely if they are able to get their race meet going one of these days. This is an investment in economic development. The State would benefit from the sales, gaming, and room taxes. This is a win-win situation. It will also help keep our cowboy way of life going strong. I ask the committee to please vote in favor of S.B. 3 and send it on to Senate Finance and Assembly Ways and Means and, hopefully, we can get some money this session.
Assemblyman John W. Marvel, Assembly District No. 32:
Though I have lost all of Elko County, I am concerned. We do have a mule races in Winnemucca, which would fit within this bill. This would be a great boost for economic development. In the last few years the purses have gone down. Ely actually got out of horse racing because they could not generate enough money to encourage good horses to participate. The same thing has happened to Elko, which used to be one of the greatest racetrack meets in the West. This bill would enhance the larger purses and attract more and better horses, and of course with the media for gambling, we would see a tremendous upgrade in room taxes, sales taxes, and the rest. Last session the bill got hammered in the Ways and Means committee because of a misinterpretation of the benefits. We hope you would look favorably on this bill.
Assemblyman Carpenter:
Several people have joined Assemblyman Marvel and me. We have Kelly Buckner from Elko who is a member of our fair board and will explain the benefits that would be accruing to Elko. We also have Sheri Eklund-Brown who is a newly elected member of our county commissioners and a great supporter of our racing. From Winnemucca, we have Barbara Owens.
Kelly Buckner, Vice Chairman, Elko County Fair Board:
I will read my testimony for the record and submit additional supporting testimony, (Exhibit C).
Sheri Eklund-Brown, Chairman, Board Of Commissioners, Elko County:
I am a newly elected Elko County commissioner and am here representing Elko County’s commission in support of S.B. 3. I have been a resident of Elko County for 40 years and have been going to the fair all my life. I had been a horse trainer for 20 years. I sit on both the fair board and the recreation board. We do advertising for the fair, an event very important to our economy.
I am well aware of the stimulus horse events can provide. We want to continue to be the authentic cowboy capital of the nation and this is one area we can promote to advance this cause. Cowboy poetry is another and we have a lot of livestock events throughout the year. The racing is very important to our commission and would boost our economy through room tax, sales tax, and gas tax. During the Labor Day event we are in competition with a lot of other states. The additional money to our purses would draw horses from those events to Nevada, thus stimulating the economy in Nevada. I would appreciate your support in advancing this bill to the Finance committee.
Barbara Owen:
I am a 40-year resident of the State of Nevada. My husband Bill has e-mailed you about his support of this bill, as he could not be here today. We are both licensed in Nevada and California as either owner/trainers or owners. We have been racing at Winnemucca for the last 4 years. We race one mule, so we are the low-rent racing team. We also have the only mules running in the whole State and “365/24/7,” I am trying to promote mule racing in Winnemucca. Winnemucca does not have an advertising budget, which is why I wear this hat. It gets people to ask so I can tell them about our mule racing. It is not our responsibility to physically advertise, so we try to do it by word of mouth.
Last year the impact of the mule racing in room nights alone was $45,750. I got this figure from Ray Pearson who owns the Winner’s Inn. This included the $250 room nights at $125 a night for 60 people which was $31,250. The show people probably spent about $12,500. The tote board personnel, the State gaming personnel, and everybody else spent about $2000 to arrive at this $45,750 total.
The purses at Winnemucca are only about $600. The futurities and some of the other races can have purses of $1000 or more. Winnemucca, as well as Elko, has suffered from a lot of financial losses with the economy and everything else. The little bit of money the city has needs to go to advertising to further the tourism in northern Nevada. Not too many people realize there are so many things to do out there and if Winnemucca cannot promote this as a race and get people to come out, make it bigger and better, this might just be the last year Winnemucca has the mule racing. Ray Pearson also has said this is his single‑best weekend of the year. All the out-of-staters come, just like with Elko. They bring California money and spread it around and it really helps. Most of the mule people are out there for a whole week and that is lodging, meals, and all the hay and grain for their animals. There is a lot of money coming into Winnemucca. If they lose the mule races, it would seriously hurt the community. I am asking you to please support S.B. 3 and send it on.
Senator McGinness:
As someone who used to represent White Pine County, my wife and I were both born in Nevada so we do not do a lot of gambling; but, I found out she has a weakness for the ponies. It is a good thing this only happens a couple times a year. Let me ask, do you apply for tourism money or can tourism money be put into a racing pot?
Mr. Buckner:
Public money cannot be used for race purses. At the Elko County Fair we receive money from room tax revenues. The county also gives us budget money. Those funds cannot be used for actual race purses. We can use part of the money for advertising. The recreation board provides some advertising funding. Money generated from public entities cannot be used for purses.
Senator McGinness:
How are you financing your purses now? Do you get donations?
Mr. Buckner:
Currently, the bottom purse in Elko is $1500 per race. We run approximately 60 races with close to $100,000 in purses. We get local sponsorships from businesses, individuals, wherever we can get those funds. The rest of the money comes from monies we generate through concessions, admissions to the fair, and those types of things. All those funds, in addition to what we get in local sponsorships, are used to provide the purse monies for the fair.
Senator McGinness:
Ms. Owen, will you tell me from a racer’s standpoint, if you had to choose a race between Winnemucca or Boise, Idaho, and Winnemucca is paying $500 pots and Boise is paying $5000 ones, obviously you would pack up and go to Boise would you not?
Ms. Owen:
The mules have a limited amount of races. We start at Winnemucca and then we go to California.
Senator McGinness:
I know, but what if you had to choose, where would you go?
Ms. Owen:
Yes, oh yes, we always go to where the money is.
Jim J. Avance, Lobbyist:
In this instance, I am representing myself. I attend these races every year wherever I am, in the State or out of State. My mother drives from Death Valley and goes to them. I know of people who go from Las Vegas, from Alamo, from Idaho, and I also believe it is an international event. When I am there I look around the stands and see a lot of Mexican citizens who have obviously come in just for the races. I would support and urge your favorable consideration on S.B. 3. It is strongly needed for the reasons the two Assemblymen stated. It is a major economic benefit to the rural part of the State.
Anthony N. Cabot, Attorney:
I will read my testimony (Exhibit D) for the record and provide associated materials (Exhibit E and Exhibit F).
Senator Care:
The language you use in the second amendment about the rebates is vague. Are you leaving it up to the discretion of the commission? For example, if someone loses $50,000 are you going to give them a rebate? The amount of a rebate could change on a daily basis or monthly basis depending on what happens in California and elsewhere. Have you given any thought to the tax implications?
Mr. Cabot:
If, for example, it is a 5 percent rebate, which would be $2500 on a $50,000 bet, in the limited context and narrow perspective of horse-race wagers, we do not what would be considered gross revenue. I am concerned the Nevada Resort Association would check in on this issue, only because I do not know the greater implications.
Chairman Amodei:
Is there any other testimony on S.B. 3? Mr. Neilander, would you provide any input you deem appropriate?
Dennis K. Neilander, Chairman, State Gaming Control Board:
We prepared the fiscal note for S.B. 3. From a fiscal point of view it is just a transfer of tax money, there is no new tax money. During the last Legislative Session there was some confusion about how this would work and I am here as a reference in this matter. With respect to the proposed amendments, I have not had an opportunity to fully canvas the Nevada Gaming Commission and my fellow board members, but I can say we have reviewed them briefly. We do understand the predicament of the pari-mutuel industry. As Mr. Cabot stated earlier, they are at a competitive disadvantage in some respects. The industry has been suffering in recent years in terms of the overall handle.
The first amendment would allow, by regulation, the Nevada Gaming Commission to establish appropriate border control. It may be a difficult thing to do because we cannot implement proper controls on the Internet and at the same time allow the system to be user-friendly.
Also needed are things like direct wire communications and closed-loop systems to ensure wagers are not being placed from states where wagering is prohibited, particularly Utah, where none is allowed. From our position, we have the responsibility through the full faith-in-credit clause to ensure those types of things do not happen. It may not be difficult for us, within the regulatory context, to come up with technology for making a secure transmission, which makes sense from both the patron and the industry’s point of view.
On the second point concerning rebates, the commission is allowed to adopt, by regulation, suitable rebate situations. Taxation is our first concern. We do not want to leave here with any misunderstanding as to how these matters are addressed by this committee in the event the commission did allow certain rebates by regulation. Secondly, the commission would be extremely cautious because of what happened when California prohibited rebates and Nevada did not have a similar provision in the law. California actually blacked out the signal to Nevada and it was a fairly contentious issue. We want to make sure the regulatory scheme we come up with does not place the State in that type position again.
Senator Care:
A race book has no discretion to offer a rebate, right now. How does it differ from a resort? I guess the theory behind what resorts do goes to marketing as well. They have discretion to forgive a marker or they can rebate. Are there similar regulations to what we are looking for here?
Mr. Neilander:
They have the discretion to rebate, Senator. The industry uses the term rebates in the context of a discount. A marker can be discounted for certain players. They may be required to pay back only 90 percent of the marker. The way we address this is primarily through taxation and we have a series of existing regulations governing when discounts are or are not included in revenue and the proper method of settling a marker. You are correct; it is within their jurisdiction and their discretion to make those determinations. Pari-mutuel wagering was singled out because of the situation with California blacking out the signal.
Senator Care:
As far as taxes are concerned, would the proposed regulations be similar to what you do with other licensees such as casinos?
Mr. Neilander:
Similar, but I will need to go back and look at the history of this. I have not had an opportunity to discuss the taxation issue with the proponents of the amendment. Of course, anything considered gross revenue to us is going to be subject to a tax unless you say otherwise. It is important we get clarification at this level, so we do not wind up in a major tax dispute with the industry over how to handle these rebates.
Senator Washington:
Last session we dealt with electronic betting and offshore betting. I am curious, where are we at in that process? Please give us an update.
Mr. Neilander:
In respect to the interactive gaming bill passed last session, the board and commission were directed to do two things. The first was to make a determination as to whether or not we could go forward and allow Internet types of interactive gaming and still be in compliance with all applicable laws. The major hurdling point was the federal wire act, which created discussion as to if it prohibited this kind of activity. We engaged in a series of dialogues with the United States Department of Justice who informed us it was in their continuing opinion the federal wire act prohibits Internet wagers across state lines. We were not able to get over this initial hurdle as required to address in the bill.
We also took a parallel look at the technology issue, because in the second part of the bill we had to make a determination. Could we by some reasonable measure prevent minors from wagering and also prevent persons from wagering within jurisdictions where it was illegal? While we made great progress in reviewing the technology, we never came to a final decision. We could not get over the legal issues. We continue to look at this issue and others on a regular basis. Technology has evolved and improved since we last appeared in front of you. The technologies we would have to use are four- to fivefold and combined together they become so onerous for a person who is just a patron; it becomes difficult for them to place a wager. Therefore, from a commercial point of view, we are not at the point where it is something completely feasible. Technology advances everyday and there may be someday when it is secure enough we could have confidence.
We still have the legal hurdle. There were several bills introduced in Congress last session. None of them passed although a couple of the bills did pass in the U.S. House of Representatives. Last week the bill from Congressman Jim Leach, Iowa, prohibiting the use of financial instruments, credit cards and things of that nature in respect to Internet gaming, did pass the financial services subcommittee. This bill could either go in front of the full house or it may have to go through the Judiciary committee. Other bills introduced in Congress in the last week include one from Congressman John Conyer, Jr., Michigan, which calls for a study on the regulation of Internet wagering within the United States. Another bill introduced by U.S. Senator Jon Kyl, Arizona, is almost identical to Congressman Leach’s bill. It attempts to prohibit Internet gaming by attacking the mechanism used for the wagering activity.
During the last session there was a case pending in Louisiana involving In re MasterCard International Incorporated, which has gone to the U.S. Court of Appeals for the Fifth Circuit. The ruling in effect says the wire act does not cover casino‑style wagering, but this is not controlling or binding in the State of Nevada. However, the United States Department of Justice’s position has not changed; we cannot proceed and be in accordance with all applicable laws.
Senator Care:
When we permit a wager placed from a state where it is legal, and the patron in that case may have used a credit card, would it be considered a consumer debt or a gaming debt?
Mr. Neilander:
The common practice is the use of a credit card. Various pieces of federal legislation going around have different exemptions for horse racing. The credit card would be a gaming debt as opposed to a consumer debt. I have not done any analysis and would certainly want to do so before I gave you a definitive answer.
Chairman Amodei:
With respect to the proposed amendment, will you address the refunds and rebates issue? There may need to be more definition in terms of some of the policy issues. Is it your belief the definition ought to be in this amendment?
Mr. Neilander:
That is my belief Senator. I would like to be able to address the tax issue before this matter leaves the committee and I will do this with as much speed as I can. While it may already be covered under a different definition, I want to make sure the committee understands exactly what our position is going to be.
Chairman Amodei:
With respect to border control, would you summarize your testimony in terms of the regulatory end? I am not sure what you want in this context. You said there would be difficulties implementing proper controls. Would you explain this?
Mr. Neilander:
The language in the amendment says border control technology that will provide security. Our view of security may be different from the industry’s view. Some of the states Mr. Cabot alluded to are using security mechanisms which probably would not pass muster under our review. We would want a system with a 100 percent certainty we are not going to have minors or persons from jurisdictions where placing wagers is illegal. For example, we currently do allow telephone and interactive types of wagering on sports for residents of Nevada. This system is fairly restrictive. The approved procedures require the person have a beeper. The beeper cannot function outside of Clark County. Thus our security level may be stricter than what is being conducted in other states.
Mr. Cabot:
Ultimately, what is going to be or what is not going to be acceptable border technology lies within the discretion of the commission, upon recommendation of the board. We accept this. Neither Mr. Neilander nor I disagree as to the language. We clearly understand if S.B. 3 is passed with this language the discretion remains with the regulators to determine the level of border technology imposed.
With regard to the rebates, the issue is the application of existing tax law as it relates to gambling. Certainly we can deal with this. From our perspective, we would love to see at least the first amendment go through. If we need to hold the second amendment until Mr. Neilander and I work out the tax issues, we certainly can do so.
Chairman Amodei:
Senate Bill 3 has to go to Senate Finance because of the fiscal note. Since I want to keep this bill moving in the process, I recommend a do pass and re‑refer vote and will provide a copy of our record to the chairman of Senate Finance, letting him know there was a discussion regarding these issues before this committee. If this committee has no objection to the discussion reoccurring in the context of the Finance committee’s work, we can keep it moving. Mr. Cabot you are more than free to have this discussion again when it is in Finance, or if appropriate, even before the Assembly Judiciary committee. I understand some of the issues are policy issues, which are in the jurisdiction of this committee. If the committee is sensitive about this, we can hold the bill. Since it is going to have to stop at Senate Finance maybe we ought to keep it moving with the understanding we can look at it again in a concur/not concur context when it returns.
Senator Care:
I do not want the bill to go on the floor until we have the tax issue addressed to our satisfaction.
Senator Washington:
I agree with Senator Care. My only concern is if the amendment is placed on the bill would it have to not only be re-referred to Senate Finance, but also to Senator McGinness’s committee on Taxation?
Chairman Amodei:
I have it on good authority it will not.
Senator Titus:
Is there another pari-mutuel bill anywhere we could look at?
Chairman Amodei:
To my knowledge, this is it.
SENATOR CARE MOVED TO DO PASS AND RE-REFER TO THE COMMITTEE ON SENATE FINANCE S.B. 3.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
chairman amodei:
The hearing of S.B. 3 is closed and we will open the work session item on S.B. 41.
SENATE BILL 41: Revises provisions governing release and use of limited personal information to certain supervisors of personnel involved in security of resort hotels. (BDR 14-110)
Jerry Bussell, Special Advisor on Homeland Security, Office of the Governor:
I see S.B. 41 as a tool that may allow us to identify a potential terrorist. What does a terrorist look like? I do not know. I do not think we can physically identify a terrorist. However, a terrorist does have some very specific traits and performs some very specific actions. It is during the trait- and action-planning cycle they are most identifiable.
Someone begins by deciding they need either a soft or a hard target. A soft target is easy to hit. A hard target is hard to hit. It is pretty simple. Then they need to obtain resources such as equipment, money, and people. They need whomever they have selected to perform the task to execute the mission. For the next step, they would need reconnaissance of their selected target. They need to go out and look at it, take pictures, and establish the best times. Remember, terrorists are neither random nor spontaneous when they check a target. The next step is practice, practice, practice; and last is execution.
How does S.B. 41 fit into this? It is during the reconnaissance and practice stages of the cycle when terrorists could be identified. Senate Bill 41 would give hotel and motel owners, or their employees, an opportunity to identify someone who might be in that cycle because of probable cause. This is the reason I feel S.B. 41 is important.
Chairman Amodei:
Tab A of the work session document (Exhibit G. Original is on file in the Research Library.) contains the proposed amendment to S.B. 41 by Senator Nolan and others who have been working with Mr. Bussell. We have narrowed the available information. On page 2 of the mock-up between lines 7 and 16, a gross misdemeanor penalty is provided for anyone who requests information and misuses it in any context. We have also expanded the definition of who may use this from a resort hotel to now include the owner of transient lodging.
Senator Nolan:
Information on criminal history backgrounds, to address Senator Care’s concern, is information currently available to the public. In order to get this information, the layperson has to go through a lengthy process of applying for the information from a law enforcement agency or from the criminal repository. With reasonable cause, the bill streamlines the ability to obtain this information. While authorized personnel are getting information and find someone who is wanted by homeland security, or the Federal Bureau of Investigation (FBI), or any other reason or agency, they can phone and alert local law enforcement they are making contact with this person. Law enforcement can then act accordingly.
The genesis for this bill came from the police agencies in larger cities who were being overwhelmed with the number of responses to hotel resorts for the purpose of providing information about people who were acting suspiciously. In order to respond, they had to send out a squad car. The intent of the bill focuses on providing information and whether or not the police even need to come to the property at all, thus reducing their workload.
Mr. Bussell has taken an interest in this bill as a tool for homeland security. To address Senator Titus’s concerns about misusing this information, a penalty was added. As Mr. Bussell mentioned, these ten people who spent several days in a small, cheap motel did not want to be identified. As we now know, their behavior was very suspicious and if the hotel owner knew and made one phone call and found out some of the people were wanted by the FBI, September 11, 2001, might not have happened. This is the explanation for extending S.B. 41 to include hotel owners.
Senator Washington:
Senator Nolan, as I read through the amendment you made reference to the registered owner of a vehicle. I would imagine some information may be extracted from the Department of Motor Vehicles (DMV) and I am wondering how this correlates within the amendment. Would they be able to retrieve information from DMV based on the restrictions placed during the last couple of sessions?
Senator Nolan:
I understand your concern. We do not want anybody misusing the information they are provided. My understanding is any information the law enforcement agency disseminates would be readily available to the public through other sources.
Bradley Wilkinson, Committee Counsel:
I believe you are correct. In response to Senator Washington’s question, the original purpose of the bill and the amendment is to allow information concerning motor vehicles to be released. It is specifically confidential at this point, so under the bill as originally drafted and under this amendment, information regarding a registered owner of a motor vehicle would be available to persons under the conditions set forth in the bill.
Senator Washington:
How would the shift supervisor or the owner, either of a motel or a resort, identify themselves to DMV to extract information on the motor vehicle?
Mr. Wilkinson:
In the proposed amendment, line 20 is the provision pertaining to the owners of transient lodging. Line 16 refers to a resort hotel. Either the resort hotel or the owner of transient lodging would identify those persons who would be authorized and submit those names to the agency of criminal justice. This means the central repository or the law enforcement agency. They would have a list of those persons authorized to receive information.
Senator Washington:
Would DMV have a list of those individuals, or would the central repository?
Mr. Wilkinson:
Actually it would be all of those entities, DMV, the central repository, and any agency of criminal justice, which would include local law enforcement. They would all have lists of the people authorized to receive information.
Senator Washington:
I think the amendment is good and I am going to support it, but there is a question of practicality. I envision a resort owner or a motel owner could actually call DMV and request information on a motor vehicle without being on the list, identify themselves as being there, and receive the information. I know we have placed some restrictions for the purposes of curtailing stalking, so I just caution this scenario.
Senator Care:
I have spoken before about my perception of once you give information to a member of the public it is in the public domain and everybody should get it. At the top of page 2, in paragraph (c), I was looking for language saying, for example, any information shall upon request be disseminated to the public by an agency of criminal justice without any restriction. What I have in mind is not only the press, but it would seem to me the owner of a shopping center, or principal of a school, or anyone in charge where people congregate, such as airport personnel, should be able to call up the Las Vegas Metropolitan Police Department and say “Have you had any requests lately for mysterious cars or license plates because I think I have one out here.”
You cannot say it is quasi-public. It is either public information or it is not. In subsections 4 and 5, once the information is available, the State has no business telling people how they may or may not use it or to whom they may disseminate it. That is a matter between whoever has the information and the person who is the subject of the information. This gets into the realm of defamation. If it is public information, you give it and anybody gets it. I appreciate what we are trying to do here, but I am uncomfortable with the idea only a resort can get this information. What if one resort gets the information and then they see the car drive down the street? I almost think this creates a duty for the resort to then notify other resorts. I know for a fact a lot of security people at these resorts are former law enforcement and they talk anyway, but I am very uneasy imposing a penalty upon the dissemination of this information.
Chairman Amodei:
Senator Care, would you like to work with Senator Nolan and come up with better language?
Senator Care:
All you have to do is turn on the television right now and you can understand the necessity of getting out the information. We are in a war here and it is not just a war in Iraq, it started over here on our own soil, so yes, I would like to work with Senator Nolan.
Chairman Amodei:
We will close the work session on S.B. 41 to allow further refinement of the measure.
We will open the hearing on a possible amendment of Senate Standing Rule No. 40 concerning Nevada Revised Statutes (NRS) 233B, which is the Nevada Administrative Procedures Act (APA) This item has been put on the agenda based upon a review of Senate Standing Rule No. 40 where this committee has jurisdiction over juvenile procedure, criminal procedure, and civil procedure. In discussions with the chairman of the Senate government affairs committee, the topic came up in a procedural sense. All procedure items ought to be in this committee since most of them are anyway. Our purpose today is to ask some of the most active people in terms of administrative procedures in this State to come and testify.
Teresa P. Froncek Rankin, Appeals Officer, Appeals, Hearings Division, Department of Administration:
I am an appeals officer with the State of Nevada. Our agency is the division of hearings and appeals office and we are within the Department of Administration. I served as your insurance commissioner for 5 years and had been with that agency for a total of 13 years in various activities. My background in administrative law is 24 years. I began in private practice with in administrative law, and then proceeded to become one of your bill drafters before I went over to the insurance division. I have also taught insurance business and administrative law at the University of Nevada, Reno. I continue to teach through their continuing education department and have also taught at various insurance companies and served as an expert witness.
I have now been an appeals officer for 5 years. We serve 2-year terms and are appointed by the Governor. The three sections in our division, the hearing office, the appeals office, and the victims of crime program are all formed under chapters 616A through 616D of NRS known as the Nevada Industrial Insurance Act. Offices are located in both Las Vegas and Carson City. Just to provide you with a scope of our activity, in fiscal year 2002, the Hearings Division handled over 11,000 cases and the appeals office handled over 4000 cases.
By statute, we hear cases relating to industrial insurance, victims of crime, and the Purchasing Division for appeals on bid contracts. By contract with agencies, we do hearings for Medicaid, the Department of Employment, Training and Rehabilitation, the benefit penalties and other fines assessed by the Division of Industrial Relations, the Nevada State Board of Optometry, and occasionally, disciplinary hearings by the Department of Personnel. In other words we do the intermediate-level hearings, which would look more like mediation. We also have contracts with financial institutions for business and industry. All of these hearings are a very small percentage of what we hear; our primary obligations involve worker’s compensation.
The hearing officers are not lawyers and their hearings are very brief. They are more in the format of mediation or arbitration. When it gets to the appeals office, which is at the level I am, it becomes more formal and it looks like a court. We are making a record with a transcript, exhibits, and testimony, which is sent, if it is appealed, to the district court or the Nevada Supreme Court, depending on the party’s preference and the results of the district court. Based on chapter 233B of NRS, the judicial reviews of our decisions are not done de novo with few exceptions. There are very specific rules the courts can use to add evidence we found. The appeals office is a trial level, if you will, it is a record that is made.
I know you are looking in general at chapter 233B of NRS. The APA was adopted in the 1960s. The regulations have been amended, but the hearing procedures have not been changed very much.
Chairman Amodei:
You have indicated the Hearings Division primarily takes care of industrial insurance although you do some other things. What is the continuity of the administrative hearing process as it exists in this State when compared with others? Are they more centralized?
Ms. Rankin:
It is a mix. About 9 to 12 states have central panels. The biggest example is California. By contract, Nevada is slowly moving toward a central panel. Other agencies who want us to serve as their hearing officers in disputed cases are contracting with our agency.
Our Nevada APA is based on the federal standard. The two major areas in which the federal standards differ from us are alternative dispute resolution and informal rule‑making under their regulation. They do not have a formal central panel; they have a mix where some agencies, like Social Security Administration, have their own hearing officers. Another example is DMV where they have such mass litigations and such frequencies of hearings that those functions are left within the agency. Central panels where persons such as myself just hear cases, rely on the agencies and the parties to give us the expertise we need to make a formal decision within the hearing. States having gone to central panels often exclude certain agencies such as DMV, personnel, and welfare disputes, partly because of the volume and sometimes turf battle. The last time the Nevada Legislature looked at a central panel was a proposal by Bill Bible and Larry Struve back in the mid-1980s. Both Judiciary committees held hearings and, at that time, it just was not the direction the Legislature wanted. There were some political and other reasons.
Chairman Amodei:
The Legislature and its political stuff? Do you have a feel for the procedure whereby an administrative level-hearing in some agencies goes through the same personnel in that agency, in terms of the supervisor's or director’s level, almost exclusively until you access the district courts? I have a concern about the due process of a procedure which requires, in effect, a staff supervisor to sit in impartial judgment on decisions the staff has made. This does not apply to the Hearings Division because you have a level of autonomy from the industrial insurance people on matters you are sitting over but when you have a dispute with the Housing Division or the Division of Financial Institutions or the Division of Insurance, do you have any feelings on the autonomy of those people who sit at the hearings level in terms of how the system is constructed?
Ms. Rankin:
Let me explain what I did as insurance commissioner and what I am seeing in contracts now. We were always sensitive as to whomever we selected to be the hearing officer for a disputed case or a potentially disputed case. They would be isolated within our division, resulting from a couple of things. Obviously there are constitutional due process requirements. The Nevada Supreme Court in the early 1970s had addressed the issue of a prosecutor being the hearing officer and said it was not appropriate. Based on this we would isolate people. The insurance division still does this. They use either the deputy or, if the commissioner is not going to be the policy-maker, they will isolate the commissioner until the hearing. This becomes difficult and was always a problem for the policy-maker because they are trying to supervise their staff. As insurance commissioner, I had a contract with the Hearings Division wherein an appeals officer made the decision on hearings such as the Humana tax case, which was highly disputed in the end of the 1980s, with the decision taken to the district court and ultimately the Nevada Supreme Court.
The National Judicial College (NJC) has excellent programs for hearing officers, appeals officers, and administrative law hearing people either doing mass litigation, a number of cases, multiple cases, or who look more like individual judges because of whatever level they work. Some of the agencies in the State have sent people they use as hearing officers to the NJC for training which does an excellent job of explaining due process issues, how to and keep a record for the district court, and all those procedures. We have an excellent resource available and agencies in Nevada are using that resource.
Chairman Amodei:
Given the choice between trying to isolate within a State agency or contracting out to the Hearings Division, do you have an opinion as to which method you think is more appropriate in terms of the appearance of objectivity for purposes of whatever decision may be at issue?
Ms. Rankin:
I testified in the mid-1980s in favor of the central panel. The separation from the agency was very appropriate for both the agency making the decision and for the parties coming in front of them. This is my personal opinion from my experience in doing these kinds of cases.
Senator Washington:
Would the central panel be an impartial panel to the proceedings so a fair process is implemented? There are some that advocate the APA does not give them fair or due process and they would prefer to go to court in front of a jury as opposed to going through the APA.
Ms. Rankin:
The APA is an executive branch of government function. The history of administrative procedures started back in about the 1930s. Some of the earliest U.S. Supreme Court cases upholding the right to have administrative proceedings parallel with a subsequent judicial review of the fairness of those proceedings, which is how our act is structured, were appropriate and necessary both from the judiciary’s viewpoint of their caseload and what they call deferring to the expertise of a particular agency. When a central panel is used, you are not really deferring to the expertise of an agency because the hearing officer is totally independent.
If I am hearing a case for purchasing and I do not know anything about the copy machines they may be contracting, it is their obligation to bring information in a form, just as they would before a judge, and explain what a copy machine is and how they are picked for the State. The other side, which wants to sell them, would have to explain. In this sense it looks very much like a court of law. From sheer volume, the Judicial Branch would be reluctant to have them be the first shot.
Senator Washington:
I have heard concerns and views saying due process through the APA has not been fair and just. Being tried and accused by the agency and then being judged by the same agency leaves some question of fairness in the process. Is the central panel giving impartiality to the person who is being accused of whatever?
Ms. Rankin:
I like to think we do a good job of being impartial. We do not know the parties and we are very careful of ex parte contact. Our files are documented so the district court knows what we did. The direct concerns on due process are met, but maybe not the perception.
Senator Washington:
There are certain agencies, and you have mentioned some of them, who are either excluded from the APA or who conduct their own hearings, Could you explain about certain subdivisions and agencies within the State, outside of the ones you mentioned, who are exempt from using the APA and give me the reasons why?
Ms. Rankin:
The exemption in NRS 233B.039 provides a list of the specific State agencies exempted. Historically, this list dealt with welfare, again the high volume, and prisons where there is a safety issue, and some things for agriculture when there are plagues, diseases, or bug problems they need to deal with on an emergency basis. In terms of local governments, there are boards and commissions, there are individual entities, and there is such a mix, the APA at the State level does not apply.
Senator Washington:
Let me be more specific. My concern is the Department of Education and those school districts within the local context of county government that inflict or use the APA to their benefit. When needed to be applied in the opposite, they throw up the red flag and say they are exempt. It becomes a problem to those who are being prosecuted.
Ms. Rankin:
All I can tell you is the APA applies to State agencies unless exempted. The Nevada Supreme Court decided if a district court or anyone else cannot figure out what procedures to apply, it is always acceptable to go back to the APA in terms of evidence rules or the contents of the notice of hearing. You cannot go wrong in relying on that structure. It does not mean you are bound by it, it just means you can use it. Local governments in general are not subject to this act. You have to look to either their individual statutes or they could refer to this and the structure is going to fit. The shoe is going to fit.
Senator Care:
For those agencies subject to the APA as adopted in Nevada, there is a statute on rules of practice. Is there uniformity among the agencies or the regulations we do not see promulgated pursuant to the statutes governing rules of evidence in civil procedure, notice, and all requests for production of documents?
Ms. Rankin:
The basic rules are in the APA. From there you go to the rules of practice by each agency as adopted under NRS 233B in the regulatory section. Every 6 years, or it might be up to 10 years, an agency has to review their rules of practice and certify they have been reviewed to the secretary of state. They can adopt amendments just as they do regulations. These cannot be secret; they cannot be in the drawer. Those are the standards for their hearings.
Some agencies have standards separate from the APA For example, if the insurance commissioner is having a hearing to suspend an insurance company’s license, standards are located in Title 57 of NRS where the insurance code details the process. If, for some reason, there is a standard missing and there is a question, the Nevada Supreme Court says they can always go to the APA and fill in the blank with an existing standard. You are always safe doing this. You cannot be arbitrary and capricious if you still cannot find a standard. If I was doing financial institutions under contract and they came before me in a hearing, the first thing I would do is look at their statutes, look at their regulations, and make sure they had procedures or not they have adopted. Then, if I could not find the structure I needed as the appeals officer, I would turn to the APA. Is that specific enough for you?
Senator Care:
I think so. For the record I need to disclose my senior partner is in-house counsel for Sierra Pacific Resources, which has a number of matters before the Public Utilities Commission of Nevada (PUCN). We are not voting on legislation, but I should make this disclosure.
Senator Amodei:
Ms. Rankin, you have indicated the Hearings Division, by some form of agreement with various agencies within the executive department, conducts hearings when they are requested.
Ms. Rankin:
Brian Nix, the senior appeals officer, has entered into written contracts reviewed by the attorney general. They set a per-dollar, per-hour fee charged to the agency for our services. The only requirements are they send a notice with copies of the pleadings, or the request for hearing, or whatever is generating the hearing, and request an appeals officer be assigned. The contracts we have are directly with the appeals officers who are all attorneys. Those individual contracts do not include the Hearings Division level. I want to make this clear.
Chairman Amodei:
Is there anything allowing a person before the agency, except those who are specifically tagged with the hearings procedure, to request their case go before you; is this something just within the agency’s end of potential requests?
Ms. Rankin:
You mean the party with the dispute with the agency?
Chairman Amodei:
I think what I heard you say is, if the agency chooses they can go to you, but the person with the dispute with the agency does not have the same option. The agency makes this procedural call, am I correct?
Ms. Rankin:
Right, only the agency has the choice. I am not saying there are not small agencies, boards or commissions who have not looked at this issue, but the larger agencies having a frequency of hearings have looked at this issue.
Chairman Amodei:
We are looking at the procedures by which we do things in an administrative context in this State. I was unaware there were contracting provisions until your testimony. It would seem to me in this context, maybe this is something we ought to look at. If the agency chooses, for whatever legitimate reason, to enlist your services, maybe the same option ought to be available to the other party in the dispute, just something to think about.
Senator Washington:
We are just gathering information on how NRS 233B actually works. You made reference to the central panel. In your years of experience, are you for the actual institution of this central panel? Do you have any ideas as to its implementation you could share with us?
Ms. Rankin:
The central panels I looked at are all listed on the Web site for the National Association of Administrative Law Judges (NAALJ). All of the appeals officers from this State are members. The NAALJ site has examples of the states having central panels and includes articles regarding how they made the transition and shows some of the pitfalls or transition problems. In the mid-1980s I testified, as a chief assistant to the insurance commissioner, in favor of a central panel. The insurance commissioner also had supported it, as it was something we felt the agency needed. I do not know the current commissioner’s opinion. I have not discussed it with her. As an appeals officer, I see the kinds of work we do for some of the agencies and we provide a good service. We provide a good document in our order, in our findings of fact, and conclusions of law. I am proud of the work our office does.
Timothy Hay, Chief Deputy Attorney General, Bureau of Consumer Protection, Office of the Attorney General:
Before I start, as a native of Pershing County where not much racing occurs any more, I do think S.B. 3 is a good piece of legislation.
Our main involvement with administrative review is our practice before the PUCN, although our agency does get involved in administrative hearings with federal agencies such as the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC). As Ms. Rankin indicated, there are certain agencies totally exempt from the provisions in NRS 233B, such as the State Gaming Control Board and the Nevada Gaming Commission. In our case, the main distinctions in PUCN practice are the judicial review provisions under NRS 703, which are different from the judicial review provisions under NRS 233B. Although it may not be helpful to the testimony being presented today, we have provided a chart (Exhibit H) listing the NRS 233B provisions for general judicial review under the Administrative Procedure Act. In the other column, the NRS 703 judicial review, are provisions for specifically taking decisions of the PUCN to a district court and ultimately to a supreme court for a judicial determination of whether the administrative agency had appropriately adjudicated the matter before it. Most of those cases are utility rate cases. The APA provisions generally apply to the PUCN for the purpose of adopting administrative regulations. From this standpoint, the commission needs to adopt, pursuant to legislation, fairly complicated, administrative regulations conducted within the notice and hearing time frames of NRS 233B. The main distinction in our practice is the difference when a PUCN decision is taken to court. The more specific judicial review provisions of NRS 703 apply in this context.
Chairman Amodei:
I am looking at NRS 233B.123, which addresses evidence in contested cases, and then at the Nevada Administrative Code (NAC) section in NAC 703.680 about discovery. The administrative code provision states “obtain discovery pursuant to the applicable provisions of the Nevada Rules of Civil Procedure.” I do not see any tag in there about the rules of civil procedure in NRS 233B.123, which I know are fairly specific in terms of depositions, interrogatories, and, requests for productions. I see it in NAC 703; can you explain how this works?
Mr. Hay:
The PUCN by regulation has adopted rules of civil procedure to apply to their proceedings with exceptions. The conceptual framework you need to be aware of is civil litigation conducted under the rules of civil procedure and the discovery conducted in that context is somewhat of a different nature than the sort of discovery you would engage in during a utility rate-making proceeding. Part is due to the fact there are statutory effective dates. The commission needs to complete its work on rate cases within a very limited framework of times to the extent the rules of civil procedure, using discovery in general as an example, may not in and of themselves comport with the statutory time frames under which the PUCN needs to complete its work. When, for instance, discovery issues come up in civil litigation in Clark County or in one of the northern counties, they might be referred to a discovery master or some other intermediate step in the civil litigation to determine appropriate discovery. Generally, in front of the PUCN this is actually done in the form of a motion to whomever is the presiding commissioner.
For instance, in a Nevada power case concluded in March 2002, the Legislature put very strict time frames on the series of established cases having to be completed by the parties and the PUCN as a matter of law. Some discovery issues came up in the context of that case, as there are in essentially all of them. Generally, due to the compressed time frames, there are many motions for order-shortening time, for instance, in conducting a deposition or in some cases to compel one party or other to comply with the commission’s internal rules on responding to data requests. Mr. Noble can explain this in more detail.
The rules of civil procedure are generally applicable due to the fact you do not always have the same sort of fixed timetable in front of a district judge, as when conducting regular civil litigation in front of the PUCN. Cases are conducted and determined more quickly on discovery issues than in normal civil litigation. It is analogous to the commission itself adopting rules recognizing rules of civil procedure as applicable in general, although there are exceptions the commission considers to comport with its statutory duty in implementing rate increases or reductions within the required statutory time frames.
Another analogy is in the judicial review provisions. Many of the differences between the APA and NRS 703 provisions actually do relate to time frames for filing appeals and the nature of the court’s discretion to look at the record below. The PUCN is considered to be a body with particular expertise in determining issues, which by their inherent nature are technologically complicated as well as analytically challenging from time to time.
Chairman Amodei:
You have referenced compressed time frames. When I look through the rules, you have compressed time frames and the commission has to act in the discovery context; I saw nothing in terms of limits on discovery requests. So on one hand, you have a compressed time frame to get before the commission and allow the commission to do its work, but on the other hand you have procedures which allow for continuing discovery requests right up until a cutoff of X number of days before the hearing starts. In comparison with a civil practice context, it would seem to be potentially problematic before you even get to where there was an order-shortening time.
Dave Noble, Assistant General Counsel, Public Utilities Commission of Nevada:
The commission has an open docket right now, No. 00-10039, which was used to do a wholesale review of our operating regulations. The next subject matter to be discussed is actually discovery requests. It has not been circulated yet but I can get copies to you very soon of those proposed regulations. They are generally much more broad in nature. They still contain the provision for discovery continuing up to 15 days in advance of a hearing. If in reviewing motions to compel answers to data requests, they become onerous, usually a motion is filed. The commission steps in and reviews those requests to determine whether or not they really apply, or are pertinent, or overburdensome. There is a check and balance to a degree.
Chairman Amodei:
Do you have a feeling, Mr. Noble, for how often this has been done during your tenure?
Mr. Noble:
In the very large cases, the deferred-energy cases, we usually see one party or another. Either one party does not want to answer the questions or the other party does not think the answers they are getting were on point or explicit enough. It has not been such a problem the commission has been overburdened with those types of motions. Usually one or two motions pop up in those cases. Each time, which given the number of motions filed in the large cases, it is not something that has been a huge problem for the commission.
Chairman Amodei:
When one of these motions is filed where do they go to?
Mr. Noble:
They will be filed directly with the commissioner. We have three commissioners with the PUCN right now. A case is assigned directly to one of these commissioners who act as the hearing officer. The motion goes directly to them. Usually their administrative attorney gets it first, reviews it, and a lot of times a procedural order will go out asking for an expedited answer or response to the motion, if time is of the essence.
Chairman Amodei:
So the motion goes to the commissioner who is presiding over that docket matter?
Mr. Noble:
Correct, the presiding officer handles all administrative issues with those cases before them.
Chairman Amodei:
Mr. Hay, there have been some inquiries about subpoena procedure used in the last big rate case in terms of subpoenas being issued from people involved in the process and the information ending up in people’s hands who had not issued the subpoena. Can you explain your subpoena authority, where it comes from, and any thoughts on how the procedure is working?
Mr. Hay:
I will identify the circumstance you are referring to first, and then talk in general about our subpoena practices. I would also like to amplify a bit on the discovery issues and why discovery in these cases may run very close to the hearing date.
In the Nevada Power Company deferred energy accounting case decided last year, the one in which the subpoenas became an issue, the record exceeded 12,000 pages. Much of it was comprised of accounting and economic testimony, with tables of fairly complicated matters. Using the statute the Legislature passed during the 2001 Session, the commission looked at both the practices in general of a regulated utility as well as the prudency of individual transactions. A company makes thousands of transactions in the energy markets during the course of a test period. Due to the volume of transactions and the compressed time frames under which these things need to be adjudicated, discovery tends to run fairly close to the time of the hearing. Not only the moving party in the case of a utility seeking a rate increase, but also the intervening parties often have to refine their analysis and their area of inquiry after the first round of discovery comes back. It drives the process very close to the time of hearing due to the intensive nature of the accounting and analytical issues. Occasionally, even after a case has begun hearing, additional discovery will be allowed if an issue the parties may not have been aware of until the preceding occurred becomes apparent.
In the case last year an issue arose in which our office tendered a data request; that case is now under review by District Judge William Maddox. The oral arguments on the record were conducted a week ago today. The subpoena issue you referenced was discussed in front of Judge Maddox. To make this convoluted story short, our office tendered a normal discovery request by asking for some e-mail relative to the trading practices of Nevada Power Company, involving a particular vendor. All the entire discovery produced was a couple of e-mails pertaining to our data request. The attorney general’s office became aware a very long series of e-mails had not been produced pursuant to the data request. We issued an administrative subpoena, under our statutory authority, to the party who would have been the recipient of some of the e‑mails and to the sender of other e-mails, who at that time had changed employment. As it turned out, shortly after we issued the subpoena, the party indicated their principal was willing to share e-mails with our office without a subpoena. The subpoena was withdrawn and the e-mails were produced and introduced into the record and proceedings in front of the PUCN.
Chairman Amodei:
Who introduced these into the record?
Mr. Hay:
The e-mail themselves, I believe, were introduced into the record by the MGM Mirage Group.
Chairman Amodei:
I do not want to get into anything presently pending in front of Judge Maddox, so if we ask you anything you think is appropriately under judicial review in a district court, please let us know.
In the context of your procedures, assuming you have administrative subpoena authority and you used it, and in this circumstance, regardless of where the subpoena stood or did not stand, the request for information was responded to by whomever appropriately had the documents. How did this information, given to the Bureau of Consumer Protection, end up with another party in the case and submitted on their behalf?
Mr. Hay:
It is more complicated than how I am going to explain it to you. First of all, we have both criminal and administrative subpoena powers. Once the subpoena was withdrawn and the other party produced the e-mails to this sequence of communications, a deposition of the recipient and sender of the e-mails was conducted in which all of the interveners, as well as our office, participated. The e-mails, in the context of the deposition, became known to all of the parties to the case.
Chairman Amodei:
By whose request was the deposition initiated?
Mr. Hay:
The deposition was noticed by the MGM Mirage Group of interveners. I will need to double check this information and report back to you. The other party was a power trader who was attempting to negotiate a power sales agreement with Nevada Power Company, so there were many e-mails going back and forth. When we were apprised of the fact the company had produced only a couple of e-mails, giving the impression this was not a vigorous conversation between the company who wanted to sell power and Nevada Power Company who wanted to buy power, we considered whether we needed to take some other remedies to compel, or to sanction them for not producing what turned out to be 30 or 40 very critical documents.
Once the deposition had occurred and the e-mails had been voluntarily produced, not only our office, but other interveners asked questions related to that sequence of e-mails which became a very significant dollar component of the case. The reason why some of the information contained in the deposition ended up in testimony of various parties is because other interveners presented their case before we presented our case. Due to the fact we are generally at the end of the proceedings, the e-mails were in the record before the commission introduced them. There was some discussion at the administrative hearing between counsel for Nevada Power Company and counsel for other interveners about where the e-mails had come from and why they had not been produced in the first place because they were not privileged communications of any kind. There also was some discussion of this in the record and I can give you the excerpts if it would help elucidate this issue for you.
Chairman Amodei:
Okay, I just wanted an idea of what the procedures were and how they operated.
Mr. Hay:
If you give me 30 seconds, I can finish the entire story.
At the end of the proceeding, if any party felt aggrieved by Nevada Power Company and wanted to attempt to exclude any of the testimony, they would have made a motion to do so. Instead, they made a motion to include everything in the record as is customary in these proceedings. The case was decided and was appealed by both our office and by Nevada Power Company. In the first hearing in front of Judge Maddox, Bill Peterson, then the general counsel for Nevada Power Company, raised the subpoena issue in the context of the provision under our APA review indicating if there was some sort of irregularity in the proceeding, the court could supplement the record through further testimony. The judge gave Nevada Power Company the opportunity to file a motion on that issue. Mr. Peterson indicated they would file a motion within a week. A motion was never forthcoming so the issue fell off the table.
If a party produces discovery under the rules, it is rare we need to subpoena anybody to get discovery information. In this case we were aware other information had not been produced according to the commission’s rules and discovery requests. We also did not know the corresponding party would willingly provide information, so the subpoena was originally drafted and then withdrawn after one conversation with the counter parties.
My recollection of the record may be very slightly off as far as time frames; however, I would be willing to provide an analysis. The issue was referenced in the commission’s order about the discussion concerning the subpoenas. Judge Maddox indicated a decision would come out of the district court, perhaps as early as 2 weeks after the hearing date. We may have a decision while the Legislature is still in session.
Chairman Amodei:
Mr. Noble, you have indicated you have an open docket on the commission revisiting its rules of procedure. When somebody is appointed to the commission, do they go through any judicial training at the NJC? What process do we use to train commissioners for their hearing duties?
Mr. Noble:
In the past, new commissioners have taken classes at the NJC, which offers 1‑ and 2-week classes on administrative procedures. Also, our administrative attorney has been at the commission for a while; there is a wealth of knowledge right there. The policy advisors and general counsel’s office take the new commissioner under our wings and educate them about the entire process. From there it is a quick learning curve, about 3 to 6 months, and they are up and running on their own. General counsel’s office is constantly overseeing the regulatory procedures aspect of all dockets before the commission. Until this session began, I had reviewed every single notice and order issued by the commission for the last 2 years.
Chairman Amodei:
When someone is elected a judge in this State, one of the first things they do is head to the NJC or wherever, to get some training. When you referenced the new commissioners go to courses, could you provide us with a copy of the courses and the curriculum of those courses in terms of what the training?
Mr. Noble:
Sure, I can do that. Also with regard to the past experiences of our current commissioners, Commissioner Adriana Escobar Chanos was with the Taxicab Authority beforehand, Chairman Don Soderberg had been with the Transportation Services Authority (TSA) as well as the former Public Service Commission of Nevada, and Commissioner Richard McIntire had previously been within the commission process for about 5 or 6 years. With respect to those three commissioners, they all may not have gone to the NJC, but at least one of them has attended. I can get curriculum for you from the NJC. I went there when I came on board, as did various members of the administrative attorneys and general counsel’s office.
Chairman Amodei:
There was mention the reference to the rules of civil procedures is anticipated in being dropped. Did I hear this correctly?
Mr. Noble:
The copy of the proposed regulations has been circulated internally. With this open docket, that provision would be deleted. It goes into much more detail about the whole process of discovery with regard to any applications or petitions before the commission.
Chairman Amodei:
Would it be correct to say the commission is planning on whatever procedures they adopt to take precedence over the rules of civil procedure for the State?
Mr. Noble:
I do not know.
Chairman Amodei:
If you would, check into this and get back with us. These regulations will go before the Legislative Commission, or is there a different process?
Mr. Noble:
Right now we are in temporary regulation mode. Since we are already in March, by the time they go through the workshop and hearing process they will be adopted as permanent regulations and so those would go before the Legislative Commission. Even if they were adopted as temporary, we would come back and adopt them through permanent status and the Legislative Commission would then have an opportunity to look at them.
Chairman Amodei:
Is there further testimony?
Jeanne Greene, Director, Department of Personnel:
The Department of Personnel has a contract with four hearing officers to hear suspensions, demotions, terminations, involuntary transfers, and whistle-blower cases of State employees. The four hearing officers are attorneys in private practice throughout Nevada. We have two in the north and two in the south. They are paid an hourly rate.
To be appointed, we are looking for people with administrative law experience. They do not go through any formal training though we do provide a general procedural manual. One hearing officer has been on contract with us for over 20 years and is considered the subject-matter expert. The other hearing officers go to him for direction.
Chairman Amodei:
Would you describe the procedure whereby you would go through our process and get to the contract-hearing officer level? If a classified employee of the State is subject to discipline, how does the process work through the system to get to one of the hearing officers?
Ms. Greene:
We have a pre-disciplinary hearing process. When formal disciplinary action is taken against someone, such as a suspension, demotion, or termination, they have to be provided specificity of charges. They have a hearing set within 10 days of receiving the specificity, which goes before the agency director or someone they designate to hear the case. The employee has an opportunity to go before the hearing officer with representation and make their case. Then the appointing authority makes the final determination whether they are upholding the discipline, revising it, or overturning it. An employee is notified in writing and within 10 days they can file an appeal with the State hearing officer who is the contract-hearing officer.
Chairman Amodei:
Do you have an exclusion under NRS 233B or are you included?
Ms. Greene:
We are included in NRS 233B.
Chairman Amodei:
Are there any questions of Ms. Greene? Seeing none, we will close the hearing on Senate Standing Rule No. 40 and reopen the work session. Go to your work session document (Exhibit G) page 3 regarding S.B 218.
SENATE BILL 218: Revises certain provisions relating to program that provides public with access to certain information in statewide registry concerning certain sex offenders and offenders convicted of crime against child. (BDR 14-159)
Senator Titus:
How are they going to pay for this Internet? I had my bill yesterday about the Office of the Secretary of State doing a Web site; and just how are they going to pay for this?
Chairman Amodei:
Mr. Anthony, do you recall any discussion of fiscal issues?
Mr. Wilkinson:
As I recall, the testimony indicated there may be some federal grants available for this purpose as well as some money, which might be donated by persons who are interested in seeing the registry established. The central repository could provide more information about the specifics.
SENATOR WASHINGTON MOVED TO DO PASS S.B. 218.
SENATOR MCGINNESS SECONDED THE MOTION.
Chairman Amodei:
Is there any discussion on the motion?
Senator Care:
I am going to vote for the bill, but I will raise the issue again on line 10 of page 2. This is the information the requestor must provide. Lines 36 and 37 of page 2 are about additional information the requestor may be asked to provide. If you call a government agency and request help or information, normally, you are not required to give your name. I do not know what the purpose and intent is for the registry to keep a list of people who make requests. I do not feel comfortable suggesting citizens have to give their name when they call for information from the government.
My other concern with S.B. 218 begins at line 14 of page 4 where the department will have the discretion to provide additional information. My concern is the department is left with the discretion to do so in some cases, and in other cases not. It seems to me this information should be available to anybody who requests it or to nobody who requests it, one or the other. My inclination is to say everybody should have it.
Chairman Amodei:
Based on those concerns, do the maker of the motion and the second of the motion have any desire to continue to work on an amendment for this bill?
Senator Washington:
I think Senator Care is correct in his concern, so I would be happy to withdraw the motion.
Chairman Amodei:
Senator Washington has withdrawn his motion and the second has been withdrawn for purposes of today’s work session. Mr. Wilkinson will you meet with Senator Care and put his concerns into written format?
Referring to Senate Bill 224 on page 4 of your work session document (Exhibit G), Senator Titus, there was discussion at the hearing concerning a potential amendment, which is at tab C. Have you taken a look at the amendment?
SENATE BILL 224: Allows designation of attendant in all civil and certain criminal proceedings involving victim of act of domestic violence. (BDR 3‑136)
Senator Titus:
I have and it looks good. We addressed Senator Nolan’s concern where it said, “shall provide” and have said, “they shall be available to provide.” I have talked to the people who brought the bill and they are also okay with the amendments.
SENATOR TITUS MOVED TO AMEND AND DO PASS S.B. 224.
SENATOR NOLAN SECONDED THE MOTION.
Senator McGinness:
I might ask Senator Titus about where it says, “may be available.” Would this mean if somebody did not want one they would not have to? Before any proceeding went on they would not have to have one available.
Senator Titus:
Right, if you look under section 1, subsection 2, it says the victim may designate any person to act as an attendant and then this is what the attendant does if so designated. It solves the problem.
Senator Wiener:
On section 1, subsection 1, did we determine whether or not it had to be a conviction for an act of domestic violence?
Mr. Wilkinson:
This particular issue is addressed in section 1, subsection 6, on page 2, lines 10 through 15. It was clear the intent of the bill was not to require there be a conviction. The intent is to make it very clear there is no conviction required.
Chairman Amodei:
Is there any other discussion?
Senator Care:
I had raised a concern in section 1, subsection 5, where the attendant has to testify first. My concern was yes, fine, but subject to recall by any party on the theory perhaps there had been communications between the case itself, about the attendant and the victim. Those are not privileged communications. The more I look at it, I do not think the language is necessary because all counsel has to do is say he is going to reserve to recall the witness at a point later in the trial. This would allow an attorney, defense counsel primarily, to call the witnesses in the order in which he or she intended.
Chairman Amodei:
Is there any other discussion?
THE MOTION CARRIED UNANIMOUSLY.
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Chairman Amodei:
Next is S.B. 242 to revise interstate compact on juvenile offenders. There are no proposed amendments.
SENATE BILL 242: Makes changes pertaining to Interstate Compact on Juveniles. (BDR 5-1198)
SENATOR WASHINGTON MOVED TO DO PASS S.B. 242.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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We have an informational item based on the dairy hearing to update the committee. This is timely in view of Senator Titus’ recent bill. We are looking at an amendment which would require processors, marketers, and distributors of dairy products of a certain percentage of market share within the State to file, along with their annual list, additional reporting requirements regarding antitrust litigation, or claims, or competitive practices. Based upon a history of antitrust actions in other states and having a certain market share in this State, we are looking at the potential for providing an additional fee with their filing. This fee will help offset the cost of school-lunch dairy products within the State. We will keep you up to date on this as it progresses.
We do have one bill draft requested (BDR) by the Department of Administration.
BILL DRAFT REQUEST 14-1245: Requires certification of persons who provide reports or evaluations to courts regarding competency of defendants. (Later introduced as Senate Bill 403.)
SENATOR CARE MOVED TO INTRODUCE BDR 14-1245.
SENATOR WEINER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman Amodei:
There being no further business to come before the committee, this meeting is adjourned at 11:30 a.m.
RESPECTFULLY SUBMITTED:
Lora Nay,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: