Gov. Sandoval should appoint PERS board members who follow the law

NPRI sues PERS, after agency flouts public records law yet again

By Robert Fellner
  • Monday, January 23, 2017

By requiring public records to be made available in a timely fashion, Nevada’s public records law aims to make “government agencies accountable and transparent to the public,” according to the state manual.

As vital as these protections are to a healthy democracy, they are rendered useless if a government agency can simply choose to avoid compliance.

Unfortunately, that is precisely what the Public Employees’ Retirement System of Nevada (PERS) has done, employing a multi-faceted scheme to conceal public records for years on end.

The agency’s plan is simple: Refuse a lawful request, wait to be sued, stonewall multiple Court rulings, and then start the entire process all over again!

This “well, sue us then” approach is underway yet again — which is why the Nevada Policy Research Institute is doing exactly that.

In 2011, the Reno Gazette Journal sued PERS after the System refused to provide information documenting retiree names and their pension payouts — information that is considered public both under the Nevada Public Records Act and in the vast majority of states nationwide.

This information is critical for the public to assess whether or not the System is adhering to its Legislative purpose (it’s not), uncover potential cases of abuse and simply provide an accurate depiction of the System’s true value.

PERS, however, claimed that doing so would jeopardize the safety of its members.

Three separate Court rulings — including a Nevada Supreme Court order — disagreed with the agency, and ordered PERS to release the information.

Regardless of whether or not one agrees with making PERS payout data public, everyone should be able to agree that government agencies follow the law. PERS has already had multiple opportunities to make its case before impartial Courts. Now, it must respect the outcome of that process.

Instead, PERS has chosen to try and circumvent the Court’s ruling — and it’s not the first time.

When NPRI requested an updated version of the pension payout report in 2015, PERS stated that it was unable to provide one with names. PERS stated that shortly after the Supreme Court ordered them to release that record, it had changed their internal processes so that names were replaced with Social Security Numbers and, thus, redacted (as required by law) when those records are made public under the Nevada Public Records Act. PERS further claims that reattaching names to their pension records would require them to “create a new record,” something it alleges is not required under public records law.

But PERS is demonstrably wrong on both accounts.

No new records — defined as information stored on a computer, per NRS 239.080 — are being sought. PERS clearly already possesses this information. Further, the extracting of information stored in a computer database is required by the law, and further indicated in a 1989 Nevada Attorney General official opinion.

Unfortunately, such blatant disregard for the law has been a recurring theme at PERS.

In April 2014, not only did Carson City District Court Judge James Russell reportedly chastise PERS for intentionally stonewalling the Supreme Court order, but he also revealed that PERS had submitted false testimony in an attempt to keep this information secret.

Then, after having lost at every level of the judiciary, PERS concocted a new scheme: lobbying lawmakers to pass a bill that would expressly make their records secret — which an editorial from the RGJ Editorial Board properly condemned as an example of why “people dislike and distrust government.”   

After that effort failed, PERS returned to the current “well, sue us then” approach. Which means, for the updated records to be disclosed, this matter will now have to be re-litigated yet again, with the Nevada Policy Research Institute having filed suit this time. 

Disturbingly, the same misrepresentation of facts which led Judge Russell to question the “truthfulness” of PERS testimony in the RGJ case reappeared at last week’s evidentiary hearing.

When pressed under cross-examination, PERS official Cheryl Price acknowledged that the requested information existed in multiple locations and not just in one allegedly confidential location as was previously asserted.

Beyond the wasted taxpayer dollars and added strain on the courts, this behavior should anger all Nevadans — who, after all, have entrusted the agency with providing over $50 billion in promised retirement benefits.

From submitting false testimony to a Court, to conspiring to circumvent a Nevada Supreme Court order, PERS has repeatedly thumbed its nose at state law and the democratic principles of a transparent and accountable government.

With multiple Board vacancies opening up later this year, Governor Sandoval has an excellent opportunity to appoint incoming leadership that will demand PERS adhere to these principles and provide maximum transparency to all Nevadans — who, after all, currently send over $1.5 billion annually to keep the System afloat, and are the ones responsible for paying down the System’s $13.5 billion shortfall.

Nevadans long ago demanded accountability and transparency from their government. It’s high time for PERS to honor that commitment.

Robert Fellner is the director of transparency research at the Nevada Policy Research Institute. 


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