A response to Attorney General Masto

Karen Gray

Throughout her July 18 article in the Las Vegas Review-Journal, Attorney General Catherine Cortez Masto made many assertions regarding her enforcement of Nevada's open-meeting law with which knowledgeable observers will take issue.

In the interest of simplicity, the AG's more substantive allegations will be addressed below, serially — first the allegation (in bold type) and then the response.

Contrary to Karen Gray's July 11 commentary published in the Review-Journal, my office takes seriously the mandate to investigate and enforce any violation of the open meeting laws.

The issue, however, is whether the AG's office is, in fact, enforcing Nevada's open-meeting statutes.

In addition, as an educational outreach, my staff regularly conducts training on the open meeting laws for state and local boards and commissions.

Education of Nevada's public bodies in this area is definitely called for. Given this AG's unique take on the open-meeting law, however, a significant risk exists that such instruction may actually mislead public boards.

After three years of enforcing these laws, however, I realized that since their codification in 1960, no one had ever reviewed them to determine their overall effectiveness.

The utility, for the people of Nevada, of any such review depends necessarily upon the kind of metrics being used. Are the metrics being used, for example, those revealing that on this attorney general's watch, public bodies' infractions against the law have increased significantly?

Thus, in January I created an Open Meeting Law Working Group, which is open to the public, to determine if the statutes governing the open meeting laws and the enforcement of those statutes could be improved.

But the question remains: "Improved in whose eyes?" In the eyes of politicians who dislike having to share their briefings with the public and admit the public into all their deliberative sessions? Or improved in the eyes of citizens concerned about the dismissive treatment they frequently receive when seeking to participate in, or monitor the activities of, state agencies and local governments?

The members of the working group include individuals from the Nevada Press Association (including the Review-Journal), the ACLU, legislators, district attorneys, city attorneys, municipalities, counties and the public. Ms. Gray is aware of the working group and has attended the past two meetings as a public observer and participated during public comment.

Quite true.

As part of the wide-ranging discussions among the working group members, statistics from my office were provided to assist in the analysis of our open meeting laws. These "worksheets," as they were referred to in Ms. Gray's article, disclosed the disposition of 148 open meeting law complaints that were filed with my office between 2007 and 2009.

The AG's office itself regularly refers to these PDF documents as "worksheets." See http://www.ag.state.nv.us/org/bga/gnr/oml/oml.htm, at the bottom of the page.

In 2007, 59 complaints were filed with my office and investigated. Of those 59 complaints, 15 were found to be violations of the open meeting law. Similarly, in 2008, of 40 complaints filed and investigated, 17 were violations. In 2009, of 49 complaints filed and investigated, 21 were found to be violations.

The problems with the AG's office become apparent when one examines how, over that three-year period, the office handled those violations. Let's just look at the 36 cases where the complaint was filed relatively promptly — within one month of the infraction. In the great majority of those cases, the AG's office regularly ran out the statute-of-limitations "clock" before issuing decisions. That means those decisions cannot be enforced and public bodies can simply ignore them.

One key deadline is 60 days after the infraction. If the AG's office is to have an action declared void, it must get into court before then. However, in 25 of those 36 complaints, the AG's office didn't even render its decision against the public body until after that deadline. Any citizen who waited for the AG decision would also, at that point, be unable to get a court to void an improper action.

Another key deadline arrives 120 days after the infraction. If the AG's office — or anyone else — wants an injunction requiring compliance with the law or preventing future violations, the case must be filed in court before then. However, in seven of those 36 complaints, even after 120 days the AG's office had not produced a decision. And any citizen who waited for the AG decision would also, at that point, be unable to seek an injunction. In 2007, after the AG missed the deadline but still issued a decision, Douglas County demanded that the AG's office remove it from the public record even though Douglas County had essentially admitted the violation. Masto's office had to — and did — comply.

These statistics, the Open Meeting Law Manual and more information about the working group meetings can be found on my website: www.ag.state.nv.us.

The information about the working group meetings is actually at http://www.ag.state.nv.us/org/bga/gnr/oml/oml.htm — at the bottom of the page, after one scrolls down.

When a violation is found, the attorney general has authority, under the law, to either sue the public body to void an action or to sue for injunctive relief to force compliance or prevent violations. The majority of the violations my office identified were resolved through settlement. This process is no different than any other civil case where the parties determine that settlement may be in their best interest to avoid expensive and time-consuming litigation. The same remedy results whether my office goes into court or achieves a settlement out of court.

The people of Nevada do NOT get the same remedy from an out-of-court settlement by this AG as when lawbreakers are taken to court and the provisions of the open-meeting law are enforced. Take, for example, the secret ballot vote by the Henderson City Council last year appointing an individual to fill a council vacancy. First, the AG's office ran out the 60-day deadline to declare the vote void. Then, it still did not require the council to revote on the item in compliance with the open-meeting law. Instead, the AG said the violation was "cured" when council members, in a subsequent public meeting, merely signed their names to and recertified the original ballots. However, under NRS 241.036, the original action taken by secret balloting should have been void, because — as the AG determined — those votes were in violation of the open-meeting law.

So why didn't the AG simply follow NRS 241.036 and void the council's original action? Apparently because that would have pushed the appointment past the 30-day deadline set by Henderson's city charter for appointments of new council members. Past that deadline, selection of the new council member must — under the charter — go to Henderson citizens in a special election.

So the "settlement" negotiated by Masto not only ignored the provisions of Nevada's open-meeting law dealing with void actions, but also the Henderson City Charter's provisions for council member appointments. Thus, what she characterizes as a settlement to "avoid expensive and time-consuming litigation" denied the citizens of Henderson the remedy mandated both by state law and the city charter.

Although litigation is not warranted where the public body readily agrees to correct its open meeting violation, there are times when violations require corrective action that only a court can provide.

Masto appears to significantly under-appreciate the important role that actual enforcement of laws has in deterring future law-breaking — a reality widely acknowledged by urban criminologists, especially following the ground-breaking 1982 article "Broken Window." Social scientists James Q. Wilson and George Kelling pointed out the simple fact that a broken window left unrepaired signals that a building is uncared for or abandoned, and thus will soon attract vandals to break other windows, to become squatters, etc. In the open-meeting law area, we see an analogous process occurring. The AG's unwillingness to hold the Henderson City Council to the law in the illegal balloting instance soon led that body to even more blatant misbehavior under the open-meeting law. (See below.)

In a recent case concerning the White Pine County Board of Commissioners, my office did not hesitate to file a complaint and take the offending parties to court. Despite a warning, a sub committee of the White Pine County Board of Commissioners met in private without statutory authority. My office filed a formal complaint in District Court seeking to void any action based on the private meeting and to enjoin them from engaging in the conduct in the future. This is an example of immediate enforcement of the open meeting law.

It is, indeed, such an example, and it was direly needed, given the fact that the AG's previous response — a "friendly reminder" note sent unofficially — had only elicited overt disdain in White Pine County for Masto's office.

In her article, Ms. Gray refers to two specific open meeting law cases: one concerning the Henderson City Council and one with the Clark County Board of School Trustees.

First, the office of the attorney general has never received a complaint concerning any violations of the open meeting law by the Henderson City Council on the referenced June 15 date.

When violations of the open-meeting law repeatedly only get the wet-noodle treatment from the AG's office, filing complaints with that office becomes an obvious waste of time. The reason the article highlighted the June 15 Henderson City Council incident was because it exemplified the increasing indifference of public bodies to key provisions of open-meeting law under this AG's highly solicitous reign. In the incident in question, both the city manager and the mayor, on the public record, informed people who'd come to express themselves on an agenda item that no public comment would be allowed regarding that item that evening and that the concerned citizens who had come would have to return in three weeks.

And second, contrary to her assertion, my office's analysis in the Clark County School District case did not grant an exception to the open meeting law, nor did it "nullify one of the law's central provisions."

Effectively, according to the text of that opinion, it did both. (See below.)

The Legislature created an exception for confidential materials. The open meeting law shields confidential materials from disclosure to the public. The information requested by the complainant was confidential. The law does not require that confidential materials be provided to the public as supporting materials. My office determined that the material requested by the Review-Journal was confidential and thus not subject to disclosure under the open meeting law.

It was precisely this "determination" by Masto's office that is at issue. That "determination" seriously threatens the open-meeting law's key requirement that supporting materials must also be provided to the public when provided to members of the public body. Why? Because Masto's holding carved out a large new exception: "deliberative process" materials. This, even though the very first line of the open-meeting law — the legislature's declaration and intent — states that, "It is the intent of the law that" public bodies' "deliberations be conducted openly."

In the case at issue, the AG held that supporting materials (a document of detailed recommendations prepared by Clark County School District Superintendent Walt Rulffes and provided to members of the school board prior to a public meeting) can legally be kept from the public and the press when those materials play a part in the board's "deliberative process." This badly written and badly reasoned holding by the AG's office clearly opens the door to effective nullification of one of the open-meeting law's key provisions. At the very least it further muddies the law, further reducing its ability to protect the public from cunning politicians. After all, virtually all supporting materials can be considered "deliberative process" materials.

Significantly, Masto's office in other cases of apparently conflicting provisions has, at least unofficially, applied a balancing approach: acknowledging not only the incidental right of the agency to be free from unreasonable interference but also the fundamental right of citizens to have access to the records as well.

My approach to open meeting law enforcement has always been aggressive and professional, based on the facts found through our investigation process. I will continue this practice and, if the findings of my working group indicate laws should be changed, clarified or tightened, I will propose these suggestions during the next Legislative session in 2011.

Any efforts of the attorney general that actually strengthen open government in Nevada will be very welcome. Indeed, given the recent record of the office, aggressive efforts will be especially encouraging.

Karen Gray is an education researcher at the Nevada Policy Research Institute. For more visit http://npri.org/.