Nevada Press Association The best in Nevada journalism since 1924
by Barry Smith
In one case, a city council paused its meeting for a three-minute recess and huddled in private before the mayor announced, “We’ve got this figured out.”
In another, the board’s policy on public comments advised its members “not to respond to even the most ridiculous statements.”
And a third case came up when a board had to summon a sheriff’s deputy to quell a potential disturbance — while in in the midst of training on Nevada’s Open Meeting Law.
Yes, the Open Meeting Law is probably viewed by most of the state’s residents as a dry and boring statute, even less interesting than attending any of the thousands of government meetings held each year by state and local boards.
But a review of complaints filed with the Attorney General’s Office over the past year and a half reveals some quirks in the process and, at least in a few places, a hazy understanding of the reason the law requires those boards to meet and act in public.
I counted 28 cases in 2017 (a few combined two complaints into one investigation), and eight so far this year. The AG is actively investigating at least one more.
Of those, nine were found to be violations — sometimes with multiple offenses. A couple others noted there were technically no violations, but they “violated the spirit” of the law or came “perilously close” to a violation and warranted a rebuke from the Attorney General’s Office.
Perhaps the most significant opinion on Nevada’s Open Meeting Law this past year came from an appeals court in the case of Assemblyman Ira Hansen’s ongoing dispute with the Nevada Commission on Ethics, which I discuss in a separate post.
In the meantime, the attorney general has reconvened its task force on the Open Meeting Law, which met Wednesday to begin discussing possible amendments to be proposed to the 2019 Legislature.
Here’s a recap of some of those cases from 2017 and so far this year:
Ely City Council
The Ely City Council violated the law several times, including at a March 2017 meeting when it took a three-minute recess during an agenda item on whether to spend $215 to send a councilwoman to Elko for a tourism meeting.
When the meeting was reconvened, Mayor Melody Van Camp said, “We’re done. We’ve got this figured out.” The council then voted unanimously to “quash” the agenda item.
The Attorney General’s Office concluded the council violated the law by continuing to deliberate outside of the public meeting. The council admitted it was wrong, and the action to “quash” was voided. It had to note the violation at its next meeting.
The report on the case also notes that Ely’s attorney had referred to “off the record” and “on the record” portions of the meeting. But, as was pointed out, there is no such thing as “off the record” for a public meeting.
The council also was in violation for meetings in 2016 for failing to list the names of property owners on agenda items for which they were being considered for civil penalties. The agenda had the addresses and the property descriptions, but didn’t note the names of the owners. The AG’s office said it should have. Another agenda failed to list the names of people who were being considered for appointment as city treasurer.
Incline Village General Improvement District
The board known as IVGID turns up frequently as the subject of complaints, but no violations were found in these cases.
It was the scene in September 2017 when — during an OML training session — resident Frank Wright was warned about being disruptive. Police were called and, the report notes, “at least one deputy responded.” Wright later filed an OML complaint, but the Attorney General’s Office found no violation.
IVGID also is the board that read a statement into the record about public comments, including:
“Finally, please remember that just because something is said in public comment that does not make the statement accurate, valid or even appropriate. The law mitigates toward allowing comments, thus even nonsensical and outrageous statements can be made. However, the Chairperson and/or General Counsel may cut off comment deemed in their judgment to be slanderous, offensive, inflammatory and/or willfully disruptive. Counsel has advised the Staff and the Board of Trustees not to respond to even the most ridiculous statements.”
First, the attorney-general response noted, it’s not up to the board’s attorney, Jason Guinasso, to cut off comment. That authority lies solely with the chairman.
Beyond that, though, “the board’s general attitude, combined with the conduct of its counsel, discouraged public participation in its meetings and actions and thus has not properly recognized the spirit of the OML,” wrote Chief Deputy Attorney General Caroline Bateman.
Boulder City Council
The Boulder City Council is the only board, as far as I can tell, found to be in violation but still disagrees with the Attorney General’s Office.
The case dates back to September 2016, when the council met with a candidate for city finance director over breakfast at the Boulder Dam Hotel. Three weeks later, the council approved his hiring.
According to the Boulder City Review, council members believe they weren’t in violation of the law because it was a social gathering. “If you, members of the council, gather at a social function and take no action with their duties as City Council members, it does not qualify as a meeting under the law,” City Attorney Dave Olsen is quoted. “Not one member of the council knowingly violated the law.”
But the AG’s office didn’t see it that way.
The breakfast “allowed the quorum of council members to collectively examine, weigh and reflect upon the reasons for or against” hiring the finance director, wrote Brett Kandt, the AG’s chief deputy at the time. The purpose of the meeting, he wrote, was to “form an impression” of the person they were considering hiring.
Other violations
- The Reno City Council didn’t put the amount of a transaction with a developer on its agenda, so it failed the test of whether the agenda item was “clear and complete.” The city argued the $3.5 million transaction was an “offset” — no actual money was changing hands; the developer would do some utility work the city had planned — but the AG’s opinion said it nevertheless involved taxpayer funds.
- Lander County commissioners left the name of an appointee off the agenda. They corrected it at the next meeting.
- Belmont’s town advisory board failed to provide meeting minutes in a timely manner.
- White Pine commissioners also failed to keep up with its meeting minutes.
- Discover Charter School Board ‘s agenda was incomplete and, at least initially, it refused to provide a copy of audio recordings of meetings.
In none of the cases where violations were found did the AG attempt to file charges or impose fines. In most, the boards were required to acknowledge the violation at their next meeting, refresh their OML training and, in some cases, reconsider any action taken in violation of the statute.
Close calls
- Mineral County School Board came “perilously close” to violating the law in an email exchange sent to board members and subsequent replies by staff. It was only because the emails didn’t continue with a back-and-forth discussion among board members that the AG determined there was no deliberation outside a public meeting.
- Nevada Tax Commission “violated the spirit” but not the law when it listed a regulation number on an agenda but didn’t mention the word “marijuana.” That technically wasn’t a violation, according to the AG, who nevertheless recommended all agenda items have at least enough description so the public can know if they’re interested.
Topics to be considered
- Here are some of the areas of the OML expected to come up for the AG’s task force, according to Wednesday’s discussion:
- A better definition of supporting materials, which must be made available to the public when they’re given to board members.
- How to handle names of candidates for top-level jobs, particularly the chancellor of the university system.
- Whether to move attorney-client discussions to an exception to the OML, rather than the current definition as a “nonmeeting.”
- Whether to add an administrative fine to violations of the law.
- Adjusting the deadlines for complaints. Currently, if no one finds out about a secret meeting and files a complaint within 60 days, the deadline expires.
- Giving the attorney general the ability to initiate “corrective action” on minor violations before completing its investigative process and finding a violation.
- Whether to prohibit profanity or offensive language during public comment.
The task force expects to meet again in a few weeks to review draft language. Possible changes to Nevada’s Public Records Act — which overlaps in some respects with the meetings law, but is not enforced by the Attorney General’s Office — may be addressed by a different committee, not yet formed.
