Nevada Press Association The best in Nevada journalism since 1924
Update: After getting an email from Carolyn Tanner, general counsel for the PUC, I’ve added at the bottom her analysis of where I’m wrong in the statute.
Nevada’s Public Utilities Commission had a chance Tuesday to clarify its status under the Open Meeting Law when questioned by legislators, but unfortunately continues to labor under a couple of misconceptions.
It should just follow the advice of Sen. James Settelmeyer, who suggested the commissioners simply “err on the side of openness.”
The occasion was a meeting of the Sunset Subcommittee of the Legislative Commission. Settelmeyer is chairman of the subcommittee, which was given a basic overview on functions of the PUC before delving into open-meetings issues.
Angel DeFazio, who was arrested for trespassing because she was trying to record video of a PUC hearing, spoke during the public comment portion of Tuesday’s meeting. I missed that portion, but I did talk to Angel later about the concerns we have on the PUC’s interpretation of the law.
Those concerns are shared by Assemblywoman Shelly Shelton, who sent a letter to Settelmeyer’s subcommittee explaining why the PUC is covered by the Open Meeting Law, despite arguments by General Counsel Carolyn Tanner to the contrary.
Shelton’s letter points out something I had overlooked in my earlier comments — the inclusion of workshops and public hearings under Nevada’s Administrative Procedures Act as being covered by the statute. She cites NRS 233B.061, which makes clear “each workshop and public hearing required pursuant to subsections 2 and 3 must be conducted in accordance with the provisions of chapter 241 of NRS.”
If I recall correctly, this section was amended in 2009 because of a complaint by a reporter for the Las Vegas Review-Journal, the late Ed Vogel, who missed part of a workshop because the wrong address was given in a notice of the meeting. At the time, there was nothing requiring workshops or public hearings to be conducted in accordance with the Open Meeting Law.
Such workshops and hearings were open and notification given, but they didn’t necessarily have to follow all the same rules that public bodies had to follow. The Legislature recognized this as an oversight and corrected it.
Now, the PUC is trying to draw a narrow exception for its contested-case hearings. I heard the same arguments on Tuesday, and I don’t think it has succeeded.
One was that the PUC hearing officers aren’t deliberating during these sessions. But they do write a draft opinion based on what they’ve heard, and they submit that to the other two commissioners for discussion and vote at a later meeting (which, everyone agrees, is covered by the Open Meeting Law).
I submit that it’s not possible to write a draft opinion without arriving at conclusions, and one can’t arrive at conclusions without deliberation. Tanner described how complicated the contested-case hearings can become in a quasi-judicial setting “when the presiding officer is trying to reach a decision.”
To be clear, the PUC’s hearings and meetings have been open. But staff members were careful to say Tuesday that people may attend the meetings, without getting into the question of whether they can video-record them.
A second problem I have is with the actual circumstances of the hearing where DeFazio was arrested. The hearing officer, David Noble, claimed her video camera was disruptive.
I guess that’s open to interpretation. But as Shelton’s letter asks, how is it disruptive of a contested-case hearing but not of a regular PUC meeting? Answer: It’s not.
The crux of this, again, is that it seems the PUC finds Angel DeFazio disruptive. She’s a vocal and persistent critic of the PUC. She goes over the top, and she doesn’t back down. As I understand it, she wasn’t even in the room at the time her camera was recording the hearing in October. But when she was told to stop recording, she refused and eventually was arrested.
I was bothered also by something Tanner said to the committee as an apparent explanation for why PUC contested-case hearings shouldn’t fall under the Open Meeting Law. “It’s almost an efficiency issue,” she said.
She described the complex issues the PUC hears and noted that recent meetings on controversial topics have gone on for several hours and drawn hundreds of people.
The implication was familiar to anyone who has dealt with agencies and public bodies that chafe at having to follow open-government statutes. Involving the public — all of it, whoever wants to show up and participate — can be really difficult. They would just as soon not have to do it, if they can figure out a way around it.
Update: After reading my comments above, Tanner helpfully bolded sections of NRS 241 where the definition of deliberation requires a “collective discussion” and other portions in opposition to my argument that the contested-case hearings should be covered by the Open Meeting Law. Here they are:
NRS 241.015 Definitions. As used in this chapter, unless the context otherwise requires:
1. “Action” means:
(a) A decision made by a majority of the members present, whether in person or by means of electronic communication, during a meeting of a public body;
(b) A commitment or promise made by a majority of the members present, whether in person or by means of electronic communication, during a meeting of a public body;
(c) If a public body may have a member who is not an elected official, an affirmative vote taken by a majority of the members present, whether in person or by means of electronic communication, during a meeting of the public body; or
(d) If all the members of a public body must be elected officials, an affirmative vote taken by a majority of all the members of the public body.
2. “Deliberate” means collectively to examine, weigh and reflect upon the reasons for or against the action. The term includes, without limitation, the collective discussion or exchange of facts preliminary to the ultimate decision.
3. “Meeting”:
(a) Except as otherwise provided in paragraph (b), means:
(1) The gathering of members of a public body at which a quorum is present, whether in person or by means of electronic communication, to deliberate toward a decision or to take action on any matter over which the public body has supervision, control, jurisdiction or advisory power.
(2) Any series of gatherings of members of a public body at which:
(I) Less than a quorum is present, whether in person or by means of electronic communication, at any individual gathering;
(II) The members of the public body attending one or more of the gatherings collectively constitute a quorum; and
(III) The series of gatherings was held with the specific intent to avoid the provisions of this chapter.
(b) Does not include a gathering or series of gatherings of members of a public body, as described in paragraph (a), at which a quorum is actually or collectively present, whether in person or by means of electronic communication:
(1) Which occurs at a social function if the members do not deliberate toward a decision or take action on any matter over which the public body has supervision, control, jurisdiction or advisory power.
(2) To receive information from the attorney employed or retained by the public body regarding potential or existing litigation involving a matter over which the public body has supervision, control, jurisdiction or advisory power and to deliberate toward a decision on the matter, or both.
4. Except as otherwise provided in NRS 241.016, “public body” means:
(a) Any administrative, advisory, executive or legislative body of the State or a local government consisting of at least two persons which expends or disburses or is supported in whole or in part by tax revenue or which advises or makes recommendations to any entity which expends or disburses or is supported in whole or in part by tax revenue, including, but not limited to, any board, commission, committee, subcommittee or other subsidiary thereof and includes an educational foundation as defined in subsection 3 of NRS 388.750 and a university foundation as defined in subsection 3 of NRS 396.405, if the administrative, advisory, executive or legislative body is created by:
(1) The Constitution of this State;
(2) Any statute of this State;
(3) A city charter and any city ordinance which has been filed or recorded as required by the applicable law;
(4) The Nevada Administrative Code;
(5) A resolution or other formal designation by such a body created by a statute of this State or an ordinance of a local government;
(6) An executive order issued by the Governor; or
(7) A resolution or an action by the governing body of a political subdivision of this State;
(b) Any board, commission or committee consisting of at least two persons appointed by:
(1) The Governor or a public officer who is under the direction of the Governor, if the board, commission or committee has at least two members who are not employees of the Executive Department of the State Government;
(2) An entity in the Executive Department of the State Government consisting of members appointed by the Governor, if the board, commission or committee otherwise meets the definition of a public body pursuant to this subsection; or
(3) A public officer who is under the direction of an agency or other entity in the Executive Department of the State Government consisting of members appointed by the Governor, if the board, commission or committee has at least two members who are not employed by the public officer or entity; and
(c) A limited-purpose association that is created for a rural agricultural residential common-interest community as defined in subsection 6 of NRS 116.1201.
5. “Quorum” means a simple majority of the constituent membership of a public body or another proportion established by law.
(Added to NRS by 1977, 1098; A 1993, 2308, 2624; 1995, 716, 1608; 2001, 1123, 1836; 2009, 2214; 2011, 2384; 2013, 727)
