The politicians’ friend: Part I

AG giving government secrecy the limp-noodle treatment

By Karen Gray
  • Monday, December 14, 2009

Is the office of Nevada Attorney General Catherine Cortez Masto intentionally seeking to neuter Nevada's open-meeting law?

Previous attorneys general, ever since it was adopted in 1960, have actively worked to strengthen, protect and enforce the law.

They honored the Nevada Legislature's declared finding that "all public bodies exist to aid in the conduct of the people's business," and that it "is the intent of the law that their actions are to be taken openly and that their deliberations be conducted openly."

Actions by the office under the current attorney general, however, increasingly suggest a different mindset. Indeed, AG decisions since Cortez Masto assumed office suggest a clear reluctance to actually enforce the law.

An inspection of AG records reveals that throughout 2007 and 2008 the office regularly failed to issue timely decisions after people had complained about alleged violations. Under the open-meeting law's statute-of-limitations rules, the Nevada attorney general has 60 days in which to legally seek voiding of a public body's action, and 120 days within which to file an injunction.

But because this AG's office so frequently "runs out the clock" on complaints under the law, politicians regularly escape enforcement and Nevada citizens regularly are deprived of the relief supposedly available under the open-meeting law.

Records requested under Nevada's open-records law reveal that in 63 percent of the complaints filed within one month of an alleged offense between 2007 and 2008, the attorney general's office exhausted one or both statutes of limitations before rendering a decision.

Of 66 complaints filed within 31 days of an offense in 2007 and 2008, the attorney general exhausted the 60-day deadline 27 percent of the time — 18 complaints — before ever rendering a decision.

Of the remaining 48 complaints, the attorney general exhausted the 120-day deadline in 24 instances — 36 percent of the complaints.

Another 17 were decided just days before the statute of limitations — three within days of the 60-day limitation and the other 14 just days within the 120-day deadline.

Only seven of the 66 complaints filed within 31 days were decided with more than 10 days still available to void action if necessary.

So what is going on? Why are so many decisions coming after the AG's window for legal action has closed? Perhaps one reason is that decisions after the window closes give public bodies an escape hatch. They can demand that any decisions against them be erased from the public record — i.e., be suppressed.

A late-2007 complaint against Douglas County may tell the story. On Oct. 3, 2007, a complaint was filed with the AG's office, charging that the Douglas County Planning Commission, three weeks earlier, had approved a zoning agenda item while keeping secret from the public an important and relevant letter, from someone who stood to benefit from passage, requesting specific changes to the county zoning amendment. On Oct.4, the day after the complaint's filing, the AG's office issued a letter saying it would investigate the allegation. On Oct. 15, Douglas County District Attorney Mark Jackson responded to the Oct. 4 letter and effectively acknowledged the violation. At that point, the statutory 60-day deadline had not lapsed and the AG could have filed to void the vote. 

Nevertheless, it was not until January 14, 2008 that the AG's office rendered its decision — six days after the 120-day deadline.

According to AG office records, Deputy AG Taylor initially found that the open-meeting law had been violated, but elected not to file a complaint because the complainant did not seek legal action. From the records, it is unclear whether the complainant asked the AG not to enforce the law or whether he merely failed to demand that the AG enforce the law. Regardless, the obligation to enforce the law does not fall on the public. It falls on the attorney general.

The record suggests that the office of Attorney General Cortez Masto had been reluctant to enforce the law all along. An intra-office e-mail sent by Cortez-Masto chief of staff Jim Spencer on Jan. 10, 2008, four days before the tardy decision was published, says: "Accordingly, [Deputy AG] Taylor suggests that we issue the opinion in a softened version, without saying overtly that the county violated the OML. I agree. This is how we have handled similar situations, such as where delay was due to the sloth of the complainant."

Cortez Masto's reply the next day appears to acknowledge that the "sloth," in this instance, lay with the AG. "That's fine with me," she said. "In the future, when the opinion comes to me please let me know if and when the time limit is running so I can make sure I get it back to George ASAP. In this case, I wasn't aware the 120-day time limit was close at hand."

Despite the "softened" decision recommended by Taylor — and the admission by Douglas DA Jackson — Douglas County demanded that the decision regarding its violation be removed from the public record. The grounds were that the tardy decision had violated both the statutory deadline and a stipulation the AG's office had made with the county in 2006.

The AG yielded, informing the original complainant by letter that the initial letter of findings was "no further of force or effect and cannot be used or referred to in any way before any [public] body."

Karen Gray is an education researcher at the Nevada Policy Research Institute.

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