Nevada Press Association The best in Nevada journalism since 1924
Updated to restore links, add some clarifications and editing.
Here’s a point that seems to keep getting overlooked in the continuing inability of the Washoe County School Board to follow the state’s Open Meeting Law.
Even when board members were trying to comply, they got bad advice from their attorneys.
The fiasco involving the firing of then-superintendent Pedro Martinez was a complete and utter mess, but it was confounded greatly by poor and often incorrect direction from the district’s attorney.
So the district used taxpayer dollars to hire an attorney specifically for the purpose of complying with the Open Meeting Law.
That led me to believe back in September the folks running Washoe schools were beginning to get a grasp on the Open Meeting Law.
Alas, my optimism was shaken this morning when I read another story by Trevon Milliard in the Reno Gazette-Journal on confirmation the board had, again, broken the law.
Worse, when I read the AG’s opinion I discovered a board member, in fact, asked the direct question of whether a vote would be legal.
“Following public comments on agenda item 7.02, Trustee Lisa Ruggerio (Ruggerio) asked a question regarding the agenda item and the three search options that had been presented by Huckaby for the Board’s consideration.
Ruggerio announced, “I think it’s pretty clear how I feel . . . so just to clarify today, just a question, this is an item [item 7.02] for discussion or action today? Do we have to choose between one of the [three] options or can we just appoint interim Davis today? Would that be allowed under this agenda?”
Board President John Mayer (President Mayer) looked to Counsel Reich, who sat just behind and to the right of Mayer at the meeting. On the video they appear to have conferred for a moment, and then Counsel Reich answered Ruggerio’s question, stating, “Yes, that’s part of the process.”
President Mayer then repeated Counsel Reich’s answer aloud. Ruggerio said that was all she had at that time.”
So I understand board member Nick Smith’s comments in arguing against the AG’s finding of a violation. “We never said we didn’t break the Open Meeting Law,” Smith is quoted. “We always owned it.”
But I don’t agree with his advice for other boards — “Stick up for yourself. You have rights.” — unless he means that board members must think for themselves rather than merely following an attorney’s advice.
Smith had argued vociferously against the initial vote because the board hadn’t informed the community it was going to take action and hadn’t asked for comment. It was clear to him, at least, that the board wasn’t following the fundamental principles behind the Open Meeting Law.
The rest of the board — including four members who now must be labeled as serial offenders — didn’t seem to care.
This all might be a tempest in a teapot — as the AG’s opinion noted, the board’s rapid turnaround was a mitigating factor — if not for the larger problem.
Here are school board members with clear contempt for public accountability. And that’s going to matter a great deal when they ask taxpayers for $600 million to $800 million to fund maintenance and construction of schools in the next election.
This board couldn’t be trusted to follow the most basic precepts of public transparency. There will be a cost to pay far exceeding any fine they might be levied for ignoring the law.
The issue of whether a board should be excused from prosecution under the Open Meeting Law if following the advice of attorney has been raised several times, both in AG opinions and by Dennis Meyer in the Reno News & Review here.
In the latest opinion, by Senior Deputy Attorney General Brett Kandt, the question is dealt with this way:
“Reliance on advice of counsel during a public meeting may be a defense to an OML complaint; however, the facts in this context do not support advice of counsel as a defense. Members of a public body are encouraged to discuss with counsel any foreseeable action taken by a public body during a meeting if a member is uncertain of its legality under the OML, preferably before a public meeting. There is no evidence that Counsel Reich had been consulted beforehand on the issue of whether the Trustees could appoint Davis at the March 24 meeting. A full discussion of the agenda item among Counsel Reich and the Trustees was lacking in this instance. Furthermore, advice of counsel may not be defense in any matter where members have previously admitted to facts constituting a similar violation.”
The OML does not provide immunity to members of a public body for reliance on counsel’s advice when there are specific facts showing that such reliance was clearly unreasonable. Brown and Banks on behalf of the State of Minnesota v. Cannon Falls Township, 723 N.W.2nd. 31, 44 (Minn. Ct. App., 2006). Under the facts presented, and in the opinion of the Attorney General, the Trustees’ reliance on counsel’s advice in this matter was not reasonable.”
It’s worth noting how legal counsel to school boards in Nevada has become a black hole of taxpayer money, as Nevada Journal reported in 2011:
“The Clark County School District Office of General Counsel has an annual budget exceeding $3 million and a legal team of 10 attorneys, nine secretarial and clerical staff, plus one administrator. Part of that $3 million each year is $500,000 allocated for the hiring of additional, outside attorneys. Nevertheless, in the last three school years the office has exceeded its outside-counsel budget and has paid out over $2.1 million to 10 private law firms. Of that, over $1.2 million went to two firms—Greenberg Traurig, and Lewis and Roca (now Lewis Roca Rothgerber), according to CCSD records reviewed by Nevada Journal. For this school year, the CCSD legal office is some $179,000 over its legal services budget.”
The Washoe district’s new general counsel, Neil Rombardo, is intimately familiar with Nevada’s Open Meeting Law. I’ve known Rombardo since he spearheaded a 2005 challenge for the Attorney General’s Office of a closed meeting by the Public Utilities Commission to grant a $40 million refund to a utilities company.
I’m counting on him to give the school board much better advice. I think the settlement is a good step in putting behind the board its past transgressions and giving it a chance to start building some trust.