Open-meeting-law fines: Solution or loop-hole?

"Public interest in transparency could be served with the addition of a civil monetary penalty," said Assistant Attorney General Keith Munro to the Assembly Committee on Government Affairs on Tuesday.

"Without a monetary penalty there is arguably no incentive for public body members to focus on compliance," he said.

Munro was presenting  Assembly Bill 59, sponsored by Nevada Attorney General Catherine Cortez Masto, which would revise Nevada's open-meeting laws. Section six of the bill would establish a $500 fine for violating Nevada's open-meeting law.

Munro argued such a fine is needed to fill a gap in the existing remedies available under the law.  Current law provides that if public bodies do not comply with open-meeting laws, their votes are void.  Public bodies can also face court injunctions.

In his presentation, Munro described a case where a woman filed an open-meeting-law complaint.  While the attorney general's office found that a violation had indeed occurred, the law allowed the offending public body to ignore the attorney general's admonishments, he said. Nevada law dictates a 60-day statute of limitations to void an action and a 120-day statute of limitations to force compliance.

"A violation was found," Munro informed legislators. "The violation was outside the 120-day period.  Our office wrote a letter admonishing the commission.  The commission ignored us. They stuffed our opinion in a drawer.  It was never heard from again."

"As a result," said Munro, "we started to think of, about whether there were avenues for correcting the situation — something in between jail time and undoing an action."

But the Nevada Legislature should be cautious here. What Munro and AB59 fail to address is the very common situation in which the attorney general will find a violation, but fail, within the statutory time limits, to take the steps required to void the offending action or seek injunctive relief — even when the attorney general's office received the complaint within a week of the alleged violation.

In one instance, an open-meeting-law complaint was filed with the attorney general within two days of the alleged violation. Masto's office then waited 115 days to issue a decision, expiring the attorney general's ability to seek court action voiding the offending action and weakening the state's ability to get an injunction striking the offending ordinance from local law. 

Masto's practice of regularly expiring the timelines of complaints and dismissing current remedies is amply documented. (See: The Politician's Friend, Part I, Part II and AG Ducks Open-Meeting Law Responsibilities.) This record suggests an unacknowledged but potentially important negative dimension of this alleged new transparency "tool."

It could allow Masto or future attorneys general to appear tough on open-meeting-law violators, by imposing a $500 fine, while dragging their feet to evade Nevada's existing, stricter remedy — "undoing an action." The final irony is that the fine could end up being paid by taxpayers, rather than the offending officials.

So how practical would this new $500 fine be?

To impose the fine under AB59, the attorney general would have to initiate legal action in court.  What would be the cost to taxpayers — in dollars and departmental resources — for the attorney general to recover a comparatively small $500?  And given Masto's reluctance to go to court to impose Nevada's current more stringent remedies, how reasonable is it to believe that she will utilize the courts to impose these fines?

While Masto's task force did discuss how the fine would be paid — by the individual or through agency funds — nothing in AB59 addresses that question. Is this purposeful?

Could taxpayers, under this proposed law, be stung multiple times by public bodies' failure to comply with the open-meeting law?  First, by the infraction itself, and second, by having to pay for prosecution of public-body members, their defense and their fines?

Munro told legislators, "The public has a strong interest in openness.  The public's interest in its government is reflected by the volume of the complaints" the attorney general's office receives.

Nevada's laws — and leaders — should reflect the public's interest.

Karen Gray is an education researcher at the Nevada Policy Research Institute. She has also reported several open-meeting-law violations to the attorney general's office. For more visit http://npri.org/.