As Nevada lawmakers publicly debate cutting $1.2 billion from the state’s budget, the business community, progressive activists and unions are behind the scenes pressing lawmakers to consider a host of proposals from criminal justice reform to liability protection during a second special session.
Although lobbyists and members of the public have been barred from the physical legislative building, a host of interest groups are making their demands known and pushing for their priorities to be included in the proclamation that will establish the parameters of what lawmakers can consider in their second special session. Gov. Steve Sisolak is expected to call the next session once lawmakers finish finalizing cuts to the state budget during the first special session, which started Wednesday.
In announcing the first special session, Sisolak said that he planned to issue a subsequent proclamation to “consider policy items that rise to the extraordinary occasion of a special session.”
Although Sisolak and top legislative Democrats have previously expressed interest in taking up topics related to police misconduct and criminal justice reform, a host of other potential special session topics have bubbled to the surface, including efforts by some of the state’s top businesses and casinos to include liability protection for businesses against COVID-19 related lawsuits. Other possible topics include election reform and worker protections.
Here’s a look at proposals that are being pushed for behind the scenes.
COVID liability protection
A consortium of powerful business groups — including the Nevada Resort Association, Vegas Chamber of Commerce, Nevada Builders and Retail Association of Nevada and others — launched the hashtag #ProtectNVJobs on Saturday to promote adding liability protections for businesses against COVID-19 related lawsuits.
But the effort to bring the topic of COVID-19 related liability to the special session has been in the works since before Saturday.
Backers of the now-public effort — which is also mirrored on a federal law — say it’s necessary to protect against frivolous lawsuits aimed at businesses struggling to reopen their doors and attract customers amid the state’s new health and safety requirements during the reopening process.
“Businesses have been financially hit hard by this pandemic. We need to make it easier - not harder - for them to recover and preserve jobs,” Vegas Chamber president and CEO Mary Beth Sewald said in an email. “The Vegas Chamber is urging the Governor and legislators to pass this legislation as soon as possible as a major step forward in rebuilding our fragile economy,"
Legislators in both political parties have said they’re open to the concept. Democratic Assemblywoman Teresa Benitez-Thompson said on a call with members of the Reno-Sparks Chamber of Commerce prior to the legislative session that many lawmakers had a “comfortable level with ensuring that we have language in the law so that employers are protected,” while keeping in place gross negligence standards.
Republican Sen. Heidi Gansert, who sent out a campaign email prior to the start of the special session last week listing “COVID19 liability reform” as a pressing topic, said Monday that “the longer businesses are open without protection, the greater the threat.”
She added that she had heard radio advertisements for potential lawsuits against long-term care facilities related to their COVID-19 response, and wanted to avoid the issue by nipping it in the bud.
“If there's an opportunity, we're anticipating that the lawsuits will follow,” she said.
The Nevada Resort Association, the politically powerful trade group representing many large casino gaming properties, has also publicly backed the concept of liability protections related to the coronavirus.
The group’s president, Virginia Valentine, sent a letter to Sisolak last Wednesday asking the governor to take up liability protections during the upcoming legislative special session, writing that the “risk of frivolous litigation that mounts each day threatens the Resort Industry’s continued operations.”
“We ask you to consider enacting a targeted and limited safe harbor from liability for companies that implement strict public health guidelines related to the transmission of COVID-19,” she wrote in the letter. “Nevada businesses cannot wait any longer for purported federal action.”
In a statement sent Monday, she said that the resort association was concerned with the “threat of opportunistic lawsuits that would derail our ability to bounce back from the economic crisis and further threaten Nevada jobs.”
“Given the importance of this issue and the need for immediate action, we’ve asked the Governor and legislative leaders to bring liability protections up for discussion during a special session,” she wrote in an email. “Without liability protections, large and small businesses face a daunting choice of closing or staying closed and risking bankruptcy or reopening and risking a business-crippling lawsuit – any of which will only further damage Nevada’s already fragile economy.”
But the Nevada Justice Association, a trade group composed of trial attorneys, sent a separate letter to Sisolak on Friday urging the governor to not “incentivize unsafe practices,” and to avoid rewarding “those businesses who engage in unsafe practices and penalize Nevada workers, consumers and tourists who contract COVID-19 because of those unsafe practices.”
The letter stated that the association wants to find common ground with the state’s business community on the issue, and included several proposals including:
- A heightened fraud-level pleading standard, which would require lawsuits be pled with “particularity,” with the intent of allowing frivolous lawsuits to be more easily and summarily dismissed
- Creating a “rebuttable presumption” standard, meaning that any business following the rules is presumed to have no liability, and thus immune from negligence lawsuits
- Allowing workers who return to work and contract COVID-19 to have a rebuttable presumption that they obtained the virus from their workplace. The group said that would ensure contracting COVID-19 is covered under the state’s worker’s compensation law, and that it “will provide comfort in knowing they will be cared for were they to become sick upon returning to work.”
Attorney Matthew Sharp, who serves as a board member on the group, said the state’s current laws around negligence were adequate to cover any potential lawsuits related to the pandemic, and that the state had bigger issues to face during the current pandemic.
“You're searching for a problem that already has a solution,” he said. “That's why I don't think a special session is necessary; the law already provides the solution.”
Several left-leaning groups also panned the proposal, saying that legislators should focus on protections for workers and not cover for businesses that do not take proper precautionary and safety steps. Progressive Leadership Alliance of Nevada Executive Director Laura Martin said her organization was staunchly opposed to the proposal, instead saying legislators should take up topics such as police reform, vote-by-mail, ballot collection for tribes and evictions.
“Protections for unfounded liability already exist and it’s up to the courts to decide whether or not a lawsuit is warranted, not for-profit businesses,” she said in an email. “Nevadans are dying and the only thing these corporations care about are being shielded from lawsuits. What a shame.”
A spokeswoman for Sisolak did not return an email asking whether the governor planned to include that item on a special session proclamation.
Adolfo Fernandez bill
Casino workers, however, are pushing their own bill headed into the second special session.
The Culinary Union, which represents 60,000 workers in Las Vegas and Reno, has proposed legislation that would require enhanced cleaning procedures, mandatory social distancing, free testing for all workers before going back to work or after being exposed to someone with COVID-19, temperature checks for workers, detailed plans for how to respond when a worker contracts the virus or is exposed to someone who has it and additional safety training for all employees.
The union has nicknamed the legislation the Adolfo Fernandez Bill after the 51-year-old utility porter at Caesars Palace who passed away last month after contracting COVID-19. His daughter, Irma Fernandez, shared in a statement the concerns her father had about returning to work amid the ongoing coronavirus pandemic.
“My father would tell me every day ‘I’m gonna get sick - the company is not keeping us safe.’ He would constantly tell me how stressed out he was,” she said. “He would call me on his break all the time to tell me about what was going on and how he was feeling. He would say that he didn’t want to go back to work, but he had to because he needed to financially support his family.”
Nineteen Culinary Union workers and members of their family have died after contracting COVID-19, according to the union. In advance of the special session, Geoconda Argüello-Kline, the union’s secretary-treasurer, sent Gov. Steve Sisolak a draft of the bill and a letter urging him to place it on the agenda for consideration.
“In these uncertain times, it is imperative that we protect Nevada’s workers, tourists, and economy,” Argüello-Kline said “Another economic shutdown could have disastrous effects on our economy which would make recovery even harder. We believe that the measures in the Adolfo Fernandez Bill would put Nevada on the path towards a full economic recovery.”
The finer details of the bill, however, are not yet clear. Neither the Culinary Union nor the governor’s office responded on Monday to The Nevada Independent’s request for the union’s draft language of the bill.
Advocates working on expanded voting access want to see legislators adopt policies that vastly expand mail-in voting and send a postage-paid ballot to all active voters and potentially inactive registered voters, too.
While Secretary of State Barbara Cegavske ordered the mostly mail approach for the June primary, the setup of November’s election remains undetermined. Clark County Registrar Joe Gloria is open to repeating the mostly mail election, but advocates don’t want the policy enshrined only in emergency directives or at the discretion of individual clerks.
“Then it kind of gives everybody room for interpretation,” said Emily Zamora of Silver State Voices, a voter rights advocacy group.
Zamora said advocates are also interested in expanding the number of ballot drop-off sites for voters who are uncomfortable dropping their mail-in ballot in a mailbox. Voters had the option of dropping off their ballots at in-person early voting and Election Day sites, but Zamora said the drop-off box plan wouldn’t necessarily align with the early voting sites.
Another ask — her group is hoping for policies that would allow people to turn in ballots for people beyond just themselves and their immediate family. Rules against “ballot harvesting” prevent that, but Zamora said it adversely affects people who live in remote areas including Indian reservations, which have been in lockdown for some of the pandemic.
She said she’s received positive cues from multiple legislators that there’s an appetite to take up election reform during a special session.
“I think folks overall did walk away from the primary election really with the understanding that we can do better for the general,” she said.
Criminal justice reform
Republican Assemblyman Tom Roberts, a former Las Vegas Metropolitan Police Department assistant sheriff, said he hasn’t seen language of any proposals from Democratic leadership as of Monday, but said he believed draft language of a proposal existed and was being worked on.
Nonetheless, Roberts said that there were a litany of possible changes that could garner bipartisan buy-in, including:
- Adding more community members to various law enforcement advisory boards in the state
- Changes to the state’s Peace Officer Standards and Training agency to add citizen participation and review misconduct
- Changes to use-of-force policies, including limits on vascular neck restraints and requiring training on “duty to intervene.”
Roberts said that the truncated nature of special sessions made it hard to delve into complex policy issues in a limited time. Additional pressure to not draw out a second special session comes from the lack of input from the public owing to limits on entering the physical legislative building, as well as the recent COVID-19 positive test of a legislator.
“There might be some things that you might be able to know right away from feedback that you got from stakeholders on both sides of the issue, that you might be able to find some middle ground and make some changes now, and then come back for some more substantial discussion about some of the more complex issues,” he said on Monday. But, you know, I think there could be room for some, but really some of the really more complex things, we probably should or could wait.”
Holly Welborn, policy director at ACLU of Nevada, said the reforms her organization is seeking to get passed during the special session don’t even scratch the surface of criminal justice reform needed in Nevada. But she said it would be “more than a disappointment” if legislators did not pass something in the wake of nationwide Black Lives Matter protests.
“The community is demanding action, and if there isn’t action at a time when this group of legislators is convened, that is going to be a failure for the community,” she said.
One of the most discussed potential reforms is a repeal of provisions in SB242 — a bill sponsored by Democratic Senate Majority Leader Nicole Cannizzaro in the 2019 session that, among other things, bars comments police officers make during an internal investigation from discovery in any civil litigation stemming from misconduct. With officers seldom facing criminal charges when people die at the hands of police, removing the provision would make it easier to hold officers accountable civilly.
“They’re definitely open to discussing the problems with the bill,” she said about legislative leaders.
ACLU leaders are also calling for a ban on chokeholds, mandatory collection of data on police activity in Nevada by demographics, and legislation that would mandate independent, rather than internal, investigations into police misconduct.
While the ACLU has signed on in support of a call for repealing the death penalty, Welborn acknowledged that the request was a “heavier lift” and something like banning chokeholds or addressing SB242 is more “low-hanging fruit.”