Axing the public’s lawyer
Assembly Speaker behind freeze on child welfare dollars
- Wednesday, August 19, 2009
Assembly Speaker Barbara Buckley worked energetically in both the 2007 and 2009 Legislatures to kill the ability of the Clark County District Attorney to represent the public interest when children are being abused, a review of legislative minutes reveals.
Significant evidence also suggests Buckley was the primary mover behind an associated — but controversial and apparently badly written — section of the state's 2009 appropriations law that has triggered a request from the state Health and Human Services Department for a Nevada Attorney General legal opinion.
Attorney General Catherine Cortez Masto has asked Clark County DA David Roger to submit his office's own research and analysis on the matter. Legislative Counsel Brenda Erdoes — responding to a request from Assembly Democrats Debbie Smith and April Mastroluca — has also submitted a legal analysis.
The provision in question is Section 54 of AB 562, the 2009 appropriations bill. The paragraph would deny some $86 million over the next two years to the state's Division of Child and Family Services unless the Clark DA stops obeying a mandate in NRS 432B.510. That provision requires the district attorney to not only see and countersign all petitions that allege a child is in need of protection, but to also "represent the interests of the public in all subsequent proceedings."
In May of 2007, according to minutes of the Legislature's Joint Subcommittee on K-12/Human Services, Buckley sought to frame the issue as merely one of limited state dollars, which — under a reigning state-county child welfare integration agreement — were to be used to fund the county's child welfare agency.
"If the Office of the District Attorney wants to represent the public, they cannot do it with our dollars," she said. "...[W]e do not have funds for the Office of the District Attorney to do extra general public representation."
In her 2007 remarks, Buckley did not address the fact that, technically, all dollars are state dollars, since Nevada is a Dillon's Rule state, i.e., one without home rule. Nor did Buckley address the mandate in state law requiring that the district attorney "shall represent the interests of the public [emphasis added]" in subsequent proceedings and giving the DA's office no choice in the matter.
In 2009, however, Buckley and her lieutenants — Sheila Leslie and Debbie Smith (Assembly majority whip and assistant majority whip, respectively) — went after the Clark County District Attorney on both fronts: funding and legal authority. Unfortunately for their cause, however, other lawmakers disagreed with them and the legal mandate requiring the DA to represent the interest of the public continues in force.
The very first version of the 2009 appropriations bill that appears on the Legislature's website attempts to remove funding, should the DA continue obeying NRS 432B.510. Section 54 of the bill was written to assert that "all funds, whether state or local," must be used "in a manner such that the child welfare agencies are the sole client of the district attorneys" whenever the DA's office "is serving as the attorney for a child welfare agency."
Of course, if the county child welfare agency must be "the sole client" of the DA in every case of child protection, the DA's office cannot continue doing what it does now in some of those cases: appoint another attorney to represent the public's interest in the child-abuse case.
The attempt by Leslie and Smith to nullify the state law requiring the district attorney's office to represent the interest of the public did not occur until May 27, 2009 — the last week of the session.
It was an Assembly Ways and Means committee hearing with Buckley present but silent. Smith offered an amendment to Senate Bill 293, which State Senator Barbara Cegavske had sponsored. That bill sought to reform the process through which psychotropic drugs get administered to state foster-care children.
Smith's amendment, however, had another agenda entirely. It was the attempt to change the official position of the state, as embodied in state law NRS 432B.510, to officially declare that "[a]n agency which provides child welfare services shall represent the best interests of the child in all proceedings," and that district attorneys must "represent the interests of the child welfare agency in all proceedings."
That there might be a difference between "the interests of the child welfare agency" and the interests of a child in need of protection was never acknowledged by Buckley, Leslie or Smith in the May 27 hearing. Yet the amendment, if it had become law, would have essentially given county child welfare agencies veto-power over district attorney activities in abused-child cases.
Unfortunately, such agencies, in Nevada and around the U.S., have regularly, over the years, faced major public scandals over chronic failures to protect abused children.
Nevertheless, Assemblywoman Kathy McClain moved for passage of the Smith amendment and Leslie seconded the motion. According to hearing minutes, the measure passed. If any members of Ways and Means voted no, their votes were not recorded.
Two days later, when the Senate took up the amended SB 293, Senator Terry Care told his colleagues that the change was unacceptable, say other senators. Care, an attorney and chairman of the body's judiciary committee, subsequently told the Nevada Policy Research Institute that District Attorney Roger had flown up to Carson City to explain the problems with the Assembly measure.
The Senate's subsequent disapproval of what the Assembly had attempted was unanimous and bipartisan. Senate Majority Leader Steven Horsford moved to not concur with the Assembly and Senator Dennis Nolan seconded the motion.
Notwithstanding the dramatics, however, Nevada lawmakers had still gotten crosswise with themselves. In passing into law the session's major appropriations bill, AB 562, they had also — almost all of them unwittingly — passed into law the ban on funding for continued reform of child welfare services, should the Clark County DA continue representing the public under NRS 432B.510, in cases where the office also represented the county welfare agency.
It is that failure of legislative coordination that last week led the state Department of Health and Human Services to ask the Nevada Attorney General's Office for a legal opinion on how to interpret Section 54 of the appropriations bill, the exact text of which is:
The appropriation of all of the sums appropriated by section 20 of this act to the Division of Child and Family Services of the Department of Health and Human Services for expenses incurred by Clark County and Washoe County for the integration of child welfare services are [sic] dependent upon all funds, whether state or local, being used in a manner such that the child welfare agencies are the sole client of the district attorneys in each case in which the District Attorney or Deputy District Attorney is serving as the attorney for a child welfare agency.
Specifically, the AG asked the Clark County DA to explain whether the section prohibits "the State Division of Child and Family Services from passing funds through to Clark County when the District Attorney also performs the statutory duty, required by NRS 432B.510, to ‘represent the interest of the public in all proceedings'".
The DA's brief answer: "No. The rules of statutory construction, as well as previous Attorney General Opinions, make it clear that Appropriation Bills are not to be interpreted in a manner that changes the substantive or general laws of the State and must be read in harmony with existing statutory obligations."
Next the AG asked, "What effect, if any, does the failure of the 2009 Legislature to pass SB 293 have in interpreting Section 54 of the 2009 Appropriations Bill (AB562)?"
The DA's answer: "The Legislature's failure to adopt SB 293, along with its approval of Appropriations Bill (AB 562), indicates that the Legislature intended for the District Attorney to represent the interests of the public in 432B.510 proceedings, as well as to serve as the attorney for the child welfare agency. The Legislative acts must be read in harmony with one another so as to effectuate to both."
Finally, the AG asked, "Is the Interlocal Agreement between Clark County and the State terminable in the event the Attorney General interprets Section 54 of the 2009 Appropriations Bill (AB 562) to prohibit the State Division of Child and Family Services from passing funds through to Clark County?"
The DA's answer: "Yes, Pursuant to Section 4 of the Interlocal, the Interlocal immediately terminates upon any cessation or reduction in funding. After the termination, the Interlocal provides that the parties have up to 180 days to develop an alternative child welfare services delivery plan that insures the fiscal and programmatical responsibility of the State and Clark County be proportional to the level of responsibility of each entity prior to the integration of child welfare services."
The full text of the Clark County DA's response to the Attorney General can be read here.
Steven Miller is vice president for policy at the Nevada Policy Research Institute.