Senate Bill No. 331–Senator Amodei

 

March 17, 2003

____________

 

Referred to Committee on Government Affairs

 

SUMMARY—Makes various changes to employment practices governing state personnel. (BDR 23‑983)

 

FISCAL NOTE:    Effect on Local Government: No.

                             Effect on the State: Yes.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to state personnel; authorizing the Employee-Management Committee to issue subpoenas for the attendance of witnesses and the production of books and papers; providing certain rights for employees that are the subject of or witnesses in internal administrative investigations; revising provisions relating to the filling of certain vacancies and regarding provisional appointments and reports on performance; authorizing an employee to request an arbitrator to hear a grievance; revising the provisions governing procedures for dismissals, demotions and suspensions without pay; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. Chapter 284 of NRS is hereby amended by adding

1-2  thereto the provisions set forth as sections 2, 3 and 4 of this act.

1-3  Sec. 2. 1.  In carrying out the provisions of NRS 284.073,

1-4  the Employee-Management Committee may issue subpoenas to

1-5  compel the attendance and testimony of a person and to compel

1-6  the production of books, papers and other items that are relevant

1-7  to a matter being investigated or considered by the Committee.

1-8  2.  If a person named in a subpoena fails or refuses to attend

1-9  or testify before the Committee, to answer any questions

1-10  propounded by the Committee or to produce the books, papers or

2-1  other items required by the subpoena, the Chairman of the

2-2  Committee may petition the district court to enter an order

2-3  compelling the person to attend and testify before the Committee,

2-4  to answer the questions propounded by the Committee or to

2-5  produce the books, papers or other items required by the

2-6  subpoena. The petition filed by the Chairman must set forth that:

2-7  (a) Due notice has been given to the person named in the

2-8  subpoena of the time and place for his attendance and testimony

2-9  before the Committee or for the production of the books, papers or

2-10  other items required by the subpoena;

2-11      (b) The person has been subpoenaed by the Committee

2-12  pursuant to this section; and

2-13      (c) The person has failed or refused to attend or testify before

2-14  the Committee, to answer certain questions propounded by the

2-15  Committee or to produce the books, papers or other items required

2-16  by the subpoena.

2-17      3.  Upon such a petition, the court shall enter an order

2-18  directing the person named in the subpoena to:

2-19      (a) Appear before the court at the place and time designated in

2-20  the order. The time designated by the court must be not later than

2-21  10 days after the date of the order.

2-22      (b) Show cause why the person has failed or refused to attend

2-23  or testify before the Committee, to answer the questions

2-24  propounded by the Committee or to produce the books, papers or

2-25  other items required by the subpoena.

2-26  A certified copy of the order must be served upon the person

2-27  named in the subpoena.

2-28      4.  If it appears to the court that the subpoena was regularly

2-29  issued by the Committee and properly served, the court shall enter

2-30  an order directing the person named in the subpoena to appear

2-31  before the Committee at the place and time designated in the order

2-32  and to testify before the Committee, to answer the questions

2-33  propounded by the Committee or to produce the books, papers or

2-34  other items required by the subpoena. Failure to obey the order

2-35  constitutes contempt of court.

2-36      Sec. 3.  1.  A subpoena issued by the Employee-Management

2-37  Committee extends to all parts of this state and must be served in

2-38  accordance with the provisions of N.R.C.P. 4(c). The Committee

2-39  may not require a person named in a subpoena to attend at a place

2-40  outside the county in which the person resides unless:

2-41      (a) The location of the place is less than 100 miles from the

2-42  person’s primary residence; or

2-43      (b) A party, by affidavit, shows that the testimony of the person

2-44  is material and necessary to the proceedings and the Committee

2-45  endorses on the subpoena an order requiring the person to attend

3-1  at the place named in the subpoena, regardless of its location in

3-2  this state.

3-3  2.  A person who appears before the Committee pursuant to a

3-4  subpoena is entitled to receive fees and mileage in the same

3-5  amounts and under the same circumstances as prescribed by law

3-6  for a witness in a civil action in the district court, unless the

3-7  person is a party to the proceeding or an officer or employee of

3-8  this state or any of its political subdivisions.

3-9  3.  If a person who is entitled to receive fees and mileage

3-10  pursuant to subsection 2 must appear at a hearing before the

3-11  Committee at a place located so far from his primary residence

3-12  that it is not reasonable for the person to return to that residence

3-13  from day to day, the person is entitled, in addition to fees and

3-14  mileage, to receive the per diem compensation for subsistence and

3-15  transportation authorized by NRS 281.160 for each day of actual

3-16  attendance at such a hearing and for each day necessarily

3-17  occupied in traveling to and from such a hearing.

3-18      4.  Except as otherwise provided in subsection 5, a party who

3-19  requests that the Committee issue a subpoena to a person shall pay

3-20  to the Committee the amount of any compensation for subsistence

3-21  and transportation that the person is entitled to receive from the

3-22  Committee pursuant to subsection 3.

3-23      5.  As part of an award of costs to the party who prevails in a

3-24  proceeding, the Committee may require the party who did not

3-25  prevail in the proceeding to pay to the Committee the amount of

3-26  any compensation for subsistence and transportation that the

3-27  prevailing party would have otherwise been required to pay to the

3-28  Committee pursuant to subsection 4.

3-29      Sec. 4.  1.  An employee may not be the subject of an

3-30  internal administrative investigation that could lead to disciplinary

3-31  action against him unless he has been:

3-32      (a) Informed of the allegations against him; and

3-33      (b) Afforded the right to have a lawyer or other representative

3-34  of his choosing present with him during any phase of the

3-35  investigation.

3-36      2.  Any employee who is the subject of an internal

3-37  administrative investigation or who is a potential witness in such

3-38  an investigation must be given not less than 48 hours to obtain

3-39  representation, unless he waives his right to be represented.

3-40      3.  If a criminal investigation is being conducted or a criminal

3-41  action is pending which involves an act that is the subject of an

3-42  internal administrative investigation, the internal administrative

3-43  investigation must cease until the criminal matter is resolved.

 

 

4-1  Sec. 5.  NRS 284.295 is hereby amended to read as follows:

4-2  284.295  1.  Vacancies in positions must be filled[, so far as

4-3  practicable,] by promotion within a department or agency from

4-4  among persons holding positions in the classified service[.] unless

4-5  the Director is unable to certify a qualified applicant from any

4-6  appropriate list for the vacancy. Promotions must be based upon

4-7  merit and fitness, to be ascertained in accordance with regulations

4-8  established by the Director. In such regulations the employee’s

4-9  efficiency, character, conduct and length of service must all

4-10  constitute factors. For the purposes of this subsection, a person

4-11  employed by the Legislative Branch of Government pursuant to

4-12  subsection 5 of NRS 284.3775 shall be deemed to hold the position

4-13  he held before the legislative session.

4-14      2.  Eligibility for promotion must be determined on

4-15  recommendation of the appointing authority and certification by the

4-16  Director that the employee meets the minimum requirements and

4-17  demonstrates his qualifications in accordance with regulations

4-18  established by the Director.

4-19      3.  The Director may provide, in specific cases, for competitive

4-20  promotional examinations among employees of departments other

4-21  than that in which a particular vacancy in a higher classification may

4-22  exist[.] if, in each specific case:

4-23      (a) The Director determines that there are no eligible

4-24  applicants in the department in which the vacancy exists to fill the

4-25  vacancy;

4-26      (b) The Director provides documentation of his determination

4-27  to the Commission; and

4-28      (c) Based on the documentation provided by the Director, the

4-29  Commission approves the determination of the Director at a public

4-30  hearing.

4-31      4.  An advancement in rank or grade or an increase in salary

4-32  beyond the maximum fixed for the class constitutes a promotion.

4-33      Sec. 6.  NRS 284.310 is hereby amended to read as follows:

4-34      284.310  1.  Whenever there are urgent reasons for filling a

4-35  vacancy in any position in the classified service and the Director is

4-36  unable to certify from any appropriate eligible list for the vacancy,

4-37  the Director may issue a provisional permit or certify a suitable

4-38  person to fill the vacancy provisionally only until a selection and

4-39  appointment can be made after competitive examination.

4-40      2.  No person may receive more than one provisional

4-41  appointment or serve more than 6 months in any 12-month period as

4-42  a provisional appointee.

4-43      3.  A provisional appointee must meet the minimum

4-44  qualifications established for the class of positions involved.

5-1  4.  A provisional appointee may not receive any training that

5-2  is not provided to other employees for the purpose of satisfying the

5-3  requirements for eligibility for another position in the classified

5-4  service.

5-5  5.  After completion of a provisional appointment, an

5-6  employee may be appointed to another position in the classified

5-7  service, based only on his merit and fitness, after he has been

5-8  certified from an eligible list prepared on the basis of examination

5-9  which, except as otherwise provided in this chapter and NRS

5-10  209.161, was open and competitive.

5-11      Sec. 7.  NRS 284.337 is hereby amended to read as follows:

5-12      284.337  1.  An employee whose duties include the

5-13  supervision of an employee who holds a position in the classified

5-14  service shall:

5-15      [1.] (a) For filing at the times specified in NRS 284.340,

5-16  prepare reports on the performance of that employee. In preparing a

5-17  report, he shall meet with the employee to discuss goals and

5-18  objectives, to evaluate the employee’s improvement in performance

5-19  and personal development, and to discuss the report.

5-20      [2.] (b) Provide the employee with a copy of the report.

5-21      [3.] (c) Transmit the report to the appointing authority.

5-22      2.  The appointing authority or any employee of the

5-23  appointing authority shall not require an employee who has

5-24  prepared a report on performance to change the report.

5-25      3.  After an employee has approved and signed a report on his

5-26  performance, no additional comments may be added to or

5-27  accompany the report or be placed in the employee’s personnel file

5-28  without the knowledge of the employee.

5-29      Sec. 8.  NRS 284.384 is hereby amended to read as follows:

5-30      284.384  1.  The Director shall propose, and the Commission

5-31  shall adopt, regulations which provide for the adjustment of

5-32  grievances for which a hearing is not provided by NRS 284.165,

5-33  284.245, 284.3629, 284.376 or 284.390. Any grievance for which a

5-34  hearing is not provided by NRS 284.165, 284.245, 284.3629,

5-35  284.376 or 284.390 is subject to adjustment pursuant to this section.

5-36      2.  The regulations must provide procedures for:

5-37      (a) Consideration and adjustment of the grievance within the

5-38  agency in which it arose.

5-39      (b) Submission to the Employee-Management Committee or an

5-40  arbitrator for a final decision if the employee is still dissatisfied

5-41  with the resolution of the dispute.

5-42      3.  The regulations must include provisions for:

5-43      (a) Submitting each proposed resolution of a dispute which has a

5-44  fiscal effect to the Budget Division of the Department of

6-1  Administration for a determination by that Division whether the

6-2  resolution is feasible on the basis of its fiscal effects; and

6-3  (b) Making the resolution binding.

6-4  4.  Any grievance which is subject to adjustment pursuant to

6-5  this section may be [appealed] :

6-6  (a) Appealed to the Employee-Management Committee for a

6-7  final decision[.] ; or

6-8  (b) Submitted to an arbitrator for a final decision. If an

6-9  employee requests that a grievance be heard by an arbitrator, the

6-10  Director or his designee shall request from the American

6-11  Arbitration Association a list of three potential arbitrators to act as

6-12  hearing officers. The employee requesting a hearing and the

6-13  Director or his designee shall select a person to serve as hearing

6-14  officer from the list provided by alternately striking one name until

6-15  the name of only one arbitrator remains. The employee shall strike

6-16  the first name. The arbitrator shall determine liability for the costs

6-17  of the arbitration. In conducting a hearing pursuant to this

6-18  paragraph, the arbitrator may issue and seek enforcement of

6-19  subpoenas in the same manner as the Committee pursuant to

6-20  sections 2 and 3 of this act.

6-21      5.  The employee may represent himself at any hearing

6-22  regarding a grievance which is subject to adjustment pursuant to this

6-23  section or be represented by an attorney or other person of the

6-24  employee’s own choosing.

6-25      6.  As used in this section, “grievance” means an act, omission

6-26  or occurrence which an employee who has attained permanent status

6-27  feels constitutes an injustice relating to any condition arising out of

6-28  the relationship between an employer and an employee, including,

6-29  but not limited to, compensation, working hours, working

6-30  conditions, membership in an organization of employees or the

6-31  interpretation of any law, regulation or disagreement.

6-32      Sec. 9.  NRS 284.390 is hereby amended to read as follows:

6-33      284.390  1.  [Within 10 working days after the effective date

6-34  of his dismissal, demotion or suspension pursuant to NRS 284.385,

6-35  an employee who has been dismissed, demoted or suspended may

6-36  request in writing a hearing before the hearing officer of the

6-37  Department to determine the reasonableness of the action. The

6-38  request may be made by mail and shall be deemed timely if it is

6-39  postmarked within 10 working days after the effective date of the

6-40  employee’s dismissal, demotion or suspension.

6-41      2.  The hearing officer shall grant the employee a hearing

6-42  within 20 working days after receipt of the employee’s written

6-43  request unless the time limitation is waived, in writing, by the

6-44  employee or there is a conflict with the hearing calendar of the

7-1  hearing officer, in which case the hearing must be scheduled for the

7-2  earliest possible date after the expiration of the 20 days.

7-3  3.  The] An appointing authority may not, without affording

7-4  an employee the opportunity for a hearing before a hearing officer

7-5  of the Department:

7-6  (a) Dismiss or demote any permanent classified employee; or

7-7  (b) Except as otherwise provided in NRS 284.148, suspend

7-8  without pay, for disciplinary purposes, a permanent employee for

7-9  a period not to exceed 30 days.

7-10      2.  If the appointing authority has good reason to believe that

7-11  an employee who is the subject of a hearing pursuant to this

7-12  section is a threat to other employees or the public safety, the

7-13  appointing authority may, at its discretion, remove the employee

7-14  from his current duties and place him in another assignment or on

7-15  administrative leave with pay until the hearing officer renders his

7-16  decision.

7-17      3.  An employee may represent himself at [the] a hearing held

7-18  pursuant to this section or may be represented by an attorney or

7-19  other person of the employee’s own choosing.

7-20      4.  Technical rules of evidence do not apply at [the] such a

7-21  hearing.

7-22      5.  After [the] a hearing conducted pursuant to this section and

7-23  consideration of the evidence, the hearing officer shall render his

7-24  decision in writing, setting forth the reasons therefor.

7-25      6.  [If the hearing officer determines that the dismissal,

7-26  demotion or suspension was without just cause as provided in NRS

7-27  284.385, the action must be set aside and the employee must be

7-28  reinstated, with full pay for the period of dismissal, demotion or

7-29  suspension.

7-30      7.] The decision of the hearing officer is binding on the parties.

7-31      [8.] 7. Any petition for judicial review of the decision of the

7-32  hearing officer must be filed in accordance with the provisions of

7-33  chapter 233B of NRS.

7-34      Sec. 10.  NRS 284.385 is hereby repealed.

7-35      Sec. 11.  This act becomes effective on July 1, 2003.

 

7-36  TEXT OF REPEALED SECTION

 

7-37      284.385  Dismissals, demotions and suspensions.

7-38      1.  An appointing authority may:

8-1  (a) Dismiss or demote any permanent classified employee when

8-2  he considers that the good of the public service will be served

8-3   thereby.

8-4  (b) Except as otherwise provided in NRS 284.148, suspend

8-5   without pay, for disciplinary purposes, a permanent employee for a

8-6   period not to exceed 30 days.

8-7  2.  A dismissal, involuntary demotion or suspension does not

8-8   become effective until the employee is notified in writing of the

8-9   dismissal, involuntary demotion or suspension and the reasons

8-10   therefor. The notice may be delivered personally to the employee or

8-11   mailed to him at his last known address by registered or certified

8-12   mail, return receipt requested. If the notice is mailed, the effective

8-13   date of the dismissal, involuntary demotion or suspension shall be

8-14   deemed to be the date of delivery or if the letter is returned to the

8-15   sender, 3 days after mailing.

8-16      3.  No employee in the classified service may be dismissed for

8-17   religious or racial reasons.

 

8-18  H