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Here’s my quote in the Associated Press story about the Legislature’s response to a request for some records: “I’m appalled by the breadth of the arrogance in this response.”
I told reporter Michelle Rindels quite a bit more, too (which I’ll get to later), but I think this pretty well sums up my reaction.
You can read the response for yourself and decide if you think it was over the top. I’m not a lawyer, so I have to come at this as an ordinary citizen who has a keen interest in open government.
And, as I also told Michelle, I have to wonder if this is how legislators, rather than their lawyers, really see themselves in relation to their constituents.
The basis of the Legislative Counsel Bureau’s argument is the separation of powers and the authority granted in the state Constitution allowing the Legislature to set its own rules — and abide by only those rules and policies, even if they’ve never been written down.
From the LCB’s response:
“The doctrine of legislative privilege and immunity has its origins in the Parliamentary struggles of the 16th and 17th centuries when the English monarchs used civil and criminal proceedings to harass, intimidate and suppress members of Parliament who were critical of the Crown.”
Again, I’m no lawyer, but it takes only a little bit of research to discover that the ‘doctrine of legislative privilege and immunity’ applies only to their legislative duties — and not to their official or political actions.
The U.S. Supreme Court has never granted full immunity to Congress. It has, in fact, allowed common-law torts to proceed against members of Congress for actions outside of their legislative duties.
So for the LCB to attempt to throw a blanket over everything members of the Nevada Legislature do — without regard to whether it’s actually a legislative duty, or whether it fits under political or official duties — ignores two-thirds of the equation.
Even the LCB’s hastily enacted AB496 protects only “legitimate legislative activity.” Do their lawyers want to argue that nothing the legislators do, say or write is in any way political? Does every appointment on their calendars, every email they sent, fit within the sphere of legitimate legislative activity?
I suspect not.
But the only way to know is for LCB to proffer, at least, a list of the schedules and emails and any other record requested and cite, for each, the specific exemption that would allow the legislators to keep them secret. The Nevada Supreme Court has said that much.
You can read the full explanation offered by Kevin Powers to the Assembly Committee on Legislative Operations and Elections when the bill was heard for the first time on June 1, 2015 — the last day of the session.
It was heard for the second time — by a Senate committee — at 6:30 p.m. the same day. The Senate committee approved it without a single question or word of discussion.
The bill was approved by the full Assembly about 17 minutes later. The Senate then voted that night, at 11:09 p.m., less than an hour before the end of the legislative session, to give the bill final passage.
This is the kind of last-minute maneuvering I would expect to see only from the most conniving, least transparent political hack in the Legislative Building — not from the Legislative Counsel Bureau, for whom I once had a great deal of respect.
Apparently, a concept that has been around for five centuries suddenly struck the lawyers of the LCB with such unexpected relevance that it needed to be declared an emergency measure and adopted in less than 12 hours.
It’s the kind of legislative sleight-of-hand usually associated with bills that legislators are too afraid, or too embarrassed, to give a full hearing in the light of day, where opponents would be able to point out the significant flaws or, at least, air another point of view.
Such bills generally have the effect of screwing somebody. In this case, that somebody is the public.
Why?
Well, let’s quote again from the LCB’s response:
“To achieve this essential public policy, it is necessary to protect Legislators from outside inquiries that would intrude upon, interfere with or pry into their communications with any other Legislators, staff, public agencies, officials or employees, constituents and interested parties concerning potential legislation, the legislative process and public policy issues.
“Without this protection, there would be an intolerable chilling effect that the disclosure of such communications would have on the willingness of such persons to communicate ideas and information to their Legislators. And allowing outside inquiries into the motivations of Legislators would be contrary to the public policy declared in NRS 41.071 because the most likely purpose of such outside inquiries would be to harass, intimidate and suppress Legislators in the performance of their legislative functions.”
Yes, prying into the motivations of legislators on public policy issues would be contrary to public policy. That is, indeed, what it says.
OK, let’s move to another of the LCB arguments:
“The Public Records Law cannot statutorily be applied to the requested materials because the Legislature and its agencies, members, officers and employees do not come within the statutory definition of “governmental entity” in the Public Records Law.”
The Legislature is not a governmental entity? Lest you think I am taking these out of context, go ahead and read the arguments and court cases cited after that statement.
To me, the whole context of the response from the Legislature can be summarized by: We make the laws, but they don’t apply to us.
That runs counter to the opening sentence of the records statute: “The Legislature hereby finds and declares that: The purpose of this chapter is to foster democratic principles by providing members of the public with access to inspect and copy public books and records to the extent permitted by law …”
I can’t wrap my mind around the hypocrisy of saying open records “foster democratic principles,” and then arguing that open records of the Legislature “intrude upon, interfere with or pry into the legislative process.” Unless, of course, you believe that democratic principles and the legislative process are mutually exclusive.
There are other objectionable opinions in the LCB response, including an argument that legislators’ emails and schedules are not public records:
“In particular, the requested materials are not “public books” because they are not the equivalent of account books or shop books in which a systematic record of public business transactions are kept, such as daybooks, cashbooks, salesbooks, journals or ledgers.”
And an argument that anything said or written prior to a final decision being made can’t be disclosed:
“Therefore, when Legislators engage in such communications, they are clearly using the communications prior to a final decision. As such, the communications are predecisional.”
According to LCB, even facts must remain secret:
“Furthermore, any facts contained in the communications are so inextricably intertwined with legislative policy-making and the legislative process that disclosure of any part of the communications would inevitably reveal legislative deliberations. Therefore, because any facts contained in the communications are “inextricably intertwined” with the deliberative elements, the entire content of the communications are deliberative and protected from disclosure.”
Ultimately, the net effect of all these lawyerly arguments is to undermine the Legislature’s authority as a lawmaking body. No wonder people have lost respect for politicians and government institutions.
- When they argue the Legislature is not a governmental entity, it is doublespeak.
- When they argue a public record is not a public record, it is obfuscation.
- When they argue that prying into the motives of legislators is not the public’s business, it is deliberately misleading.
- When they push through legislation at the last hour without discussion, it is dishonest.
- When they argue the Legislature does not have to follow its own laws, it is arrogant — and revealing.
Remember, the Nevada Legislature has exempted itself from the Open Meeting Law as well.
I truly believe that open government is essential to our democracy. I had hoped our elected representatives understood that when they govern in secret — even with the best of intentions, even if they have not actually done anything wrong — they erode our trust.
Perhaps there is so little faith left in government that it doesn’t matter any more. I would welcome someone to make the argument that I am wrong — that there is plenty of confidence in our elected officials to act in the public’s interest without divulging their motives.
I doubt many voters and taxpayers are willing to make that leap of faith. Nor should they.
