MINUTES OF THE
ASSEMBLY Committee on Judiciary
March 1, 1999
The Committee on Judiciary was called to order at 8:10 a.m., on Monday, March 1, 1999. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. Mark Manendo, Vice Chairman
Ms. Sharron Angle
Mr. Greg Brower
Ms. Barbara Buckley
Mr. John Carpenter
Mr. Jerry Claborn
Mr. Tom Collins
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Sheila Leslie
Ms. Kathy McClain
Mr. Dennis Nolan
Ms. Genie Ohrenschall
STAFF MEMBERS PRESENT:
Donald O. Williams, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Jennifer Carnahan, Committee Secretary
Judy Jacoboni, Victim Advocate, Mothers Against Drunk Driving
Captain Jim Nadeau, Washoe County Sheriff’s Office
Stan Olsen, Legislative Representative, Las Vegas Metropolitan Police Department
Gemma Green, Legislative Representative, Nevada District Attorneys Association
Alfredo Alonso, Legislative Representative, Nevada Beer Wholesalers
John C. Morrow, Legislative Representative, Washoe County Public Defenders Office
Dennis DeBacco, Manager, Nevada Criminal History Depository
Vicki Wright, Executive Director, Sierra Nevada Girl Scouts
After roll was called, Chairman Anderson announced he had a Bill Draft Request (BDR) for committee introduction.
ASSEMBLYMAN MANENDO MOVED FOR INTRODUCTION OF BDR 16-1585.
ASSEMBLYWOMAN MCCLAIN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY. ASSEMBLYWOMAN BUCKLEY AND ASSEMBLYMAN NOLAN WERE NOT PRESENT FOR THE VOTE.
Assembly Bill 210: Creates evidentiary privilege for parent for certain confidential communications between parent and his child. (BDR 4-147)
Chairman Anderson informed the committee Mr. Price wished to postpone the hearing on A.B. 210. Currently, various concerns were being discussed and it was possible the legislation might be withdrawn.
There was no objection from the committee.
Chairman Anderson moved to the next order of business before the committee and opened the hearing on Assembly Bill 230.
Assembly Bill 230: Makes various changes concerning crimes of engagement in and solicitation for prostitution. (BDR 15-274)
Stan Olsen, representing the Las Vegas Metropolitan Police Department (LVMPD) and the Nevada Sheriffs and Chiefs, testified A.B. 230 was proposed by the LVMPD vice units. It was requested because of the growing proliferation of prostitution in the Las Vegas valley and an increasing problem with escort services being used as a cover. He opined any legislation that dealt with first amendment issues needed to be carefully and deliberately crafted. In light of recent legal challenges and case law development, they believed it was not timely for the committee to act on A.B. 230. Mr. Olsen stated he was formally asking for withdrawal of the legislation and indicated a motion to indefinitely postpone would not be inappropriate. He apologized for any inconvenience this might have caused.
ASSEMBLYMAN CARPENTER MOVED TO INDEFINITELY POSTPONE A.B. 230.
ASSEMBLYMAN MANENDO SECONDED THE MOTION.
THE MOTION CARRIED. ASSEMBLYWOMAN BUCKLEY AND ASSEMBLYMAN NOLAN WERE NOT PRESENT FOR THE VOTE.
The next order of business before the committee was Assembly Bill 23.
Assembly Bill 23: Increases fines for driving under influence of alcohol or controlled substance. (BDR 43-1093)
Assemblyman Mark Manendo, Assembly District 18, explained the penalties associated with driving under the influence (DUI) had not been increased in over a decade. A.B. 23 would increase the fine for the first DUI offense from $200 to $400 and the second offense from $500 to $750. He noted the increased fines would act as a deterrent for those who drink and drive. He presented a letter from Stop DUI, Inc. in support of A.B. 23, which was attached as Exhibit C.
Chairman Anderson acknowledged the problem of collecting the many fees and fines now imposed. He questioned if a DUI offense fell under the same category as other traffic offenses or if they fell under a different area because of the nature of the offense.
Assemblyman Manendo deferred to Judy Jacoboni, Victim Advocate from the Lyon County Chapter of Mothers Against Drunk Driving (MADD).
Ms. Jacoboni testified in support of A.B. 23. She reiterated it had been many years since the fines had been increased. She also noted most of the time the costs of detecting, arresting, and prosecuting a DUI offense were absorbed by the counties, not the offender. She opined increasing the fines might offset those costs as well as serve as a deterrent.
Captain Jim Nadeau, Washoe County Sheriff’s Office, stated he would support any bill that would deter DUIs and therefore, he would support A.B. 23.
Stan Olsen, representing the Las Vegas Metropolitan Police Department, echoed Caption Nadeau’s comments.
Chairman Anderson felt $400 was a large fine for a first offense. He pondered if the amount was not excessive as well as if it truly had any deterrent value.
Captain Nadeau replied it would act as a deterrent. He pointed many steps had been taken in an attempt to reduce drinking and driving. Those steps apparently had a deterrent effect because the statistics regarding DUIs had decreased. He noted the increase of things like designated drivers. Captain Nadeau also pointed out many of the state’s courts had a fine of more than $400 for a first time DUI sentence. He stated that was the minimum and bail for some of those cases was $500 to $750.
Assemblyman Collins commented the bill did not change the opportunity for a fine to be paid in installments.
Gemma Green, Washoe County District Attorney’s Office and the Nevada District Attorney’s Association, explained the average fine in Washoe County justice court was between $500 and $600 including the administrative assessment which was $100 and the lab fee which was $60. The underlying fine for a DUI, with no aggravating circumstances, was approximately $375 plus the administrative assessment and lab fee. She noted if an individual had a low blood alcohol level and there was no property damage, the fine would be $200 minimum plus the administrative assessment and lab fee.
Chairman Anderson asked Ms. Green to expound on the community service requirement. Ms. Green stated most DUI offenders would opt for the 48 hours of community service rather than jail time unless they had spent an inordinate amount of time in jail already. The individual would receive credit for time served against the 96-hour community service requirement.
Mr. Carpenter asked if the administrative assessment increased in proportion to the fine or if it was set. Ms. Green explained there was a sliding scale based on the underlying fine. If an individual was fined $375, generally the maximum administrative assessment of $100 would be charged. She also pointed out, at least in Washoe and Clark County, a court facility fee would be added to raise money to build a new courthouse.
Alfredo Alonso, representing the Nevada Beer Wholesalers, spoke in support of A.B. 23. He echoed previous testimony noting the importance of the bill due to the increase of administrative costs as well as its effect as a deterrent.
John Morrow, Washoe County Public Defenders Office, confirmed Ms. Green’s comments in regard to fines and fees; however, he expressed concern that judicial discretion was being eroded. He commented he had not seen a minimum fine imposed in a number of years but felt it was important the judge had the option noting the administrative assessment fee would be an additional charge. Mr. Morrow remarked there were cases where low-level DUI offenders could not pay the higher fines and that would only impact the family as opposed to the individual.
Referring to section 1, subsection (b)(4), Mr. Carpenter and Mr. Morrow engaged in a brief discussion about the cost of treatment the offender was often required to undergo.
Referring to the option to pay the fine in installments, Mr. Manendo repeated they could still pay a set amount per month; only the number of payments would increase. Mr. Morrow acknowledged that to be true but reiterated many offenders were indigent. By increasing the amount of the fine as opposed to the time to pay, the families were hurt more than the individual.
Chairman Anderson closed the hearing on A.B. 23.
In regard to questions about the cost of treatment, Assemblywoman McClain opined offenders would opt for treatment if it was cheaper, which in the long run would help the family more.
ASSEMBLYMAN COLLINS MOVED DO PASS A.B. 23.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. ASSEMBLYMAN NOLAN WAS NOT PRESENT FOR THE VOTE.
Chairman Anderson assigned the bill to Assemblyman Manendo for presentation on the assembly floor.
After a brief recess, Chairman Anderson opened the hearing on Assembly Bill 239.
Assembly Bill 239: Makes appropriation to Central Repository for Nevada Records of Criminal History of the Department of Motor Vehicles and Public Safety for background checks of criminal history for volunteers who work with children. (BDR S-61)
Chairman Anderson explained the Committee on Judiciary would hear testimony on A.B. 239 because of the policy issue involved. The Committee on Ways and Means would then hear it to address the fiscal issue.
Assemblyman Dennis Nolan, Assembly District 13, came forward as the sponsor of the bill. He informed the committee during the past two sessions he had attempted to get legislation passed which would allow nonprofit organizations to better screen potential volunteers who would be working directly with children. He wanted to be able to determine whether or not those people had a criminal history which might endanger the children with whom they were working. In 1995, he proposed a bill which would have required organizations where volunteers were going to work directly with youth to submit to a background check. It was not passed because the opposition opined the $40 cost associated with performing a background check would have a chilling effect on volunteerism. Mr. Nolan pointed out in 1997, a resolution was adopted which urged nonprofit organizations to protect their youth by performing background checks and also implementing youth protection programs. He reiterated his belief that background checks were the only way to truly determine whether or not an individual should be in contact with children and therefore, felt it necessary to find a way to offset the cost.
Mr. Nolan explained A.B. 239 required a $200,000 appropriation from the state general fund be made to an account established at the Central Repository for Nevada Records of Criminal History, which would be used to cover the cost of requested background checks. He recognized a $200,000 appropriation at a time when the state was experiencing a budget shortfall was probably not realistic and therefore presented a proposed amendment to A.B. 239. Instead of requiring an appropriation, the amendment would allow for the account to be funded by donations, gifts, grants, and any appropriations the legislature saw fit to make. Mr. Nolan’s proposed amendment was attached as Exhibit D.
Mr. Nolan concluded his presentation by pointing out his last issue of concern. He drew the committee’s attention to line 4 of Exhibit D, specifically the language, "requests for information relating to sexual offense". He opined the committee might expand the language from "sexual offenses" to all offenses which would be relevant to the safety of children. He elucidated if an individual was going to be driving children around and yet had been convicted of multiple DUIs, the information would be important. In conclusion, he thanked Dennis DeBacco from the Central Repository for Nevada Records of Criminal History for all his help with A.B. 239.
Mr. Collins questioned if a background check could be obtained from the local police department. Mr. Nolan replied in the affirmative if they substantiated the individual would be working for the organization and provided a social security number. He noted the information would be limited to the police department’s local jurisdiction and would not include regional or national information. Mr. Nolan pointed out the transient nature of people who perpetrated crimes upon children.
Mr. Leslie inquired how the monies would be distributed. Mr. Nolan responded that would be left up to the repository’s discretion. He would suggest allocating a certain percentage to each organization so no single organization could monopolize the entire account.
Chairman Anderson noted the legislation addressed working with children only and did not address volunteers working with the elderly or individuals with disabilities. He asked if the intent was not to include them in the bill. Mr. Nolan acknowledged abuse of anybody was a problem but A.B. 239 was to focus on children.
Ms. Angle expressed concern with the possible invasion of privacy and liability issues included in the bill. She stated voluntary programs always stepped up to become mandatory and she did not want to see the state get involved with things of a first amendment nature. She also asked Mr. Nolan to expound on the chilling effect of the legislation.
Mr. Nolan stated the chilling effect would occur if an expense was mandated upon the nonprofit organization. A.B. 239 was not a mandate of background checks but an attempt to assist with the costs if an organization wanted to utilize the option. He remarked several organizations indicated they wanted to perform background checks but lacked the necessary funds and did not want to pass the expense on to the volunteers. In regard to Ms. Angle’s second concern, he replied the legislature continually dealt with first amendment issues and he believed there was a balance. The bill was not designed to infringe on people’s rights. "The rights we are weighing here are the rights of innocent children who participate in organizations under the supervision of adults and the need to make sure those children are protected." In regard to her first concern, Mr. Nolan pointed out confidentiality had to be maintained and liabilities existed whether or not background checks were performed.
Dennis DeBacco, Manager of the Central Repository for Nevada Records of Criminal History, testified in support of A.B. 239. He explained the repository was an informational source for people who needed to know criminal record information not only statewide but nationally, in order to make informed licensing, employment, and regulatory decisions. He offered to answer any questions.
Chairman Anderson acknowledged the many services the repository provided and the number of agencies that used the services. He asked if the state currently provided a monetary supplement for background checks on volunteers who worked with the elderly or individuals with disabilities. Mr. DeBacco stated currently they did not.
Referring to his previous question, Chairman Anderson wondered if it would become necessary in order to comply with the National Child Protection Act. Mr. DeBacco responded the Nevada statutory scheme as it related to the elderly and children appeared to be in compliance with the National Child Protection Act and its subsequent amendment dealing with employers and employees. He pointed out the concern was working with volunteer type positions. He remarked the repository often heard complaints about the fee structure and suggested there were a number of organizations that failed to do background checks on volunteers because they had no funding mechanism with which to offset those costs.
Mr. DeBacco clarified the National Child Protection Act did not make it mandatory for volunteer organizations to conduct background checks. If they chose to request a check, it provided a mechanism for them to be able to receive additional information from the Federal Bureau of Investigation (FBI).
In response to an inquiry by Chairman Anderson, Mr. DeBacco stated while it was not set in statute, the charge for a background check was $15. He noted very expensive technology was used and it was a labor-intensive process. The repository did not make any profit from those checks; the fee covered their overhead and operating expenses. "The FBI’s fee will be reduced for both elderly and volunteers dealing with children from $24 to $18. That would be a total of $33 per background check."
Mr. Collins asked if the fee was the only requirement in order to obtain information from the repository. Mr. DeBacco expounded there were a number of programs which provided public access to information through the repository. All of them required a fee and the fee was basically the same. The repository did not differentiate between a fingerprint check fee and a name check fee. The fee was not based on how a request was made but what it took to maintain those records for licensing, employment, and regulatory purposes. In addition, Mr. DeBacco explained information could be requested from the local police department but due to very specific statutes, they were precluded from disseminating information outside the scope of their jurisdiction in regard to licensing, employment, and regulatory purposes.
Ms. Leslie questioned the scope of the data of the repository. Mr. DeBacco replied the repository was a record of events which had occurred within the State of Nevada. They had access to information for all 50 states, Canada, and the U.S. territories but for criminal justice purposes only.
Ms. Leslie pointed out when the Children’s Cabinet did background checks and, for example, an individual had been charged with battery in Truckee, California, they would not receive that information. Mr. DeBacco explained the repository would not supply the information directly, but it would eventually be received as long as the state in which the offense had occurred had provided the information to the national system. The information from the repository would be received within 3 working days but the information from the FBI had previously taken up to 90 days. He remarked the FBI’s response time had improved since the last legislative session and currently it was within 35 working days. Through technology, it was their ultimate goal to have a turnaround time which would mirror that of the repository. Mr. DeBacco informed the committee there was an interstate compact agreement coming from the Senate which would provide for a more relaxed way in which the repository did business with the FBI which would greatly enhance the FBI’s response time.
In response to an inquiry by Ms. Buckley, Mr. Nolan declared he had no intention of asking for the process to become mandatory at a later time.
Mr. DeBacco made the committee aware, referring to page 2, lines 2 - 3, when the repository conducted a check for a volunteer organization, unlike that of a government regulatory agency, "we are not returning to the organization a complete rap sheet from the FBI nor from our state system." The organization that provided a notice said the person pursuant to Nevada Revised Statute (NRS) 179A.210, was either approved or not recommended to be in contact with the elderly or children. They did not release specific criminal record information, information on protective orders, and especially not "wanted person" information. If a serious offense was found, it would become a police function.
At that time, Chairman Anderson entered into the record a letter of support received by Mr. Nolan from Donald York, Executive Director of the Nevada Area Council, Boy Scouts of America. It was attached as Exhibit E.
Vicki N. Wright, Executive Director for the Sierra Nevada Girl Scout Council, testified on behalf of both Girl Scout councils in the State of Nevada, in favor of A.B. 239. Ms. Wright’s prepared written testimony was attached as Exhibit F. She noted the cost of conducting background checks on their current 4,000 volunteers was financially prohibitive. She opined A.B. 239 would address that concern, would add an extra level of scrutiny to their screening process, and would make children safer.
Ms. Leslie disclosed she was on the Board of Directors of the Sierra Nevada Girl Scouts and a Girl Scout leader. Referring to her earlier question, she asked Ms. Wright how the Girl Scouts would prioritize the use of any money they might receive from the account. Ms. Wright opined she would focus on the troop leader although there were several parents who also assisted the troop. She noted two adults were required to be at every troop meeting and at every function so no one was ever alone with the children.
Chairman Anderson asked for Ms. Wright’s opinion of the recommended amendments. Ms. Wright stated she supported the bill with the amendment.
Chairman Anderson questioned if a single background check could be used for different organizations. Mr. DeBacco replied a fee would be charged for each background check requested. He pointed out one exemption was an individual who had been issued a professional license. He explained if a teacher was issued a professional license and someone within a 6-month period of time conducted a background check on them, they would be exempt by statute from paying the second fee.
Mr. Nolan stated he had just received an email from a person listening to the committee which addressed how other states handled multiple background checks. The email stated in the State of Washington, a notice was sent to each person who received a background check. If they worked for another organization that requested a background check, the individual would provide the notice to that organization. There was only one cost involved. The email indicated many organizations in Washington made it mandatory for their volunteers to do background checks.
In response to an inquiry by Chairman Anderson, Mr. DeBacco explained page 2, line 2 of A.B. 239 stated the repository should undertake a search in a manner provided in NRS 179A.210. It was currently outlined in statute and the repository would provide whoever was requesting the information as well as the volunteer a notice stating a background check had been done and whether the individual passed or failed. "They in essence could present that notice to other organizations. The question is how long is that notice good for." Reiterating a comment made by Ms. Wright, he pointed out people’s records changed constantly. Mr. DeBacco noted they had the ability to report back if a person became disqualified in Nevada. He stated how long the notice should be good was a matter of policy.
Chairman Anderson stated he had a background check conducted 27 years ago and he did not know if one had been done since. If he had done something wrong, he pondered if they would have noted that and his license revoked.
Mr. DeBacco stated an employer/employee relationship was much different than that of a volunteer who was giving a month of their time.
Chairman Anderson brought the bill back to committee.
Chairman Anderson restated the amendment would open a special account funded by grants and donations in the Department of Motor Vehicles for use of the Nevada Repository of Criminal History. He noted it also removed the sunset clause.
Mr. Nolan noted the only other consideration he would ask the committee to make was with respect to the notice relating only to sexual offenses. He believed the repository should be able to notify an organization of other types of offenses.
Chairman Anderson wondered if by including those offenses, it might endanger the legislation. Mr. Nolan agreed with his point.
Mr. Manendo asked if the bill would still be heard by the Committee on Ways and Means being the $200,000 appropriation was eliminated. Chairman Anderson pointed out it was a joint referral and would go to that committee but they would probably note the intent had been changed.
Mr. Collins requested clarification if the notice could be submitted for multiple organizations. Chairman Anderson pointed out Mr. DeBacco had stated the notice could be conceivably utilized by several organizations. He stated at some time in the future, it could be determined how frequently such volunteer groups would have to require a new background check. He suggested once every other year.
ASSEMBLYMAN CARPENTER MOVED AMEND AND DO PASS A.B. 239.
He stated the amendment to A.B. 239 would be that submitted by Mr. Nolan (Exhibit D).
ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.
Assemblywoman McClain clarified the areas of notice would be only sexual offenses and not the other areas discussed.
THE MOTION CARRIED UNANIMOUSLY.
Chairman Anderson adjourned the meeting at 10:38 a.m.
Assemblyman Bernie Anderson, Chairman