AG ducks open-meeting law responsibilities

Karen Gray

On the record, Nevada Attorney General Catherine Cortez Masto is of course emphatically in favor of government officials obeying the state's open-meeting laws.

"What it comes to," she said in a recent interview, "is ensuring that the public has access to the information that their elected leaders are deliberating about within their communities. That's the goal here. That's the intent of the open-meeting law."

Actually, the principles involved are even broader.

"All political power is inherent in the people," says the Nevada Constitution. "Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it."

In essence, Nevada's open-meeting laws were enacted to ensure that — notwithstanding the ever-expanding egos of public officials — Nevada's public bodies are kept open, accountable and subject to the people they serve.

This is why the Attorney General of the State of Nevada is charged with the investigation, enforcement and criminal prosecution of these laws.

Yet citizens are increasingly confronted by arrogant, out-of-control officials, while the AG's office — gazing benignly out upon the carnage — merely blinks.

Worksheets released this month by Masto's office reveal that between 2007 and 2009 it exhausted one or both statutes of limitations for enforcement in 77 percent of the 89 complaints filed within one month of an alleged violation. Between 2007 and 2009, the percentage of violations grew from 25 percent in 2007 to 43 percent in 2008 and 2009.

The Henderson City Council

On June 15 the Henderson City Council — one of Nevada's chronic open-meeting law violators — sought to block members of the public from speaking about a published agenda item.

"Just for the audience, new business 71 — the dog and cat spay and neuter bill — is a bill for introduction only," announced Mark Calhoun, Henderson's city manager, to people who'd come to express themselves on the issue. "There will be no public comment taken this evening. Public comments will be heard on July sixth."

Then Henderson Mayor Andy Hafen chimed in.

"Again, I just wanted to reiterate," he said. "I have two cards on individuals who wanted to speak regarding new business 71. Tonight all's we do is read that in title and at a committee meeting in two weeks is when that discussion would take place.

"So, just to let you know, it's at the end of the agenda, you're welcome to stay for the whole meeting, but, uh, we will not take any public comment on NB-71."

Under Nevada law, members of the public have a clear right to address any subject matter within a public body's jurisdiction, control or advisory power during the general public comment periods that are mandated by state open-meeting laws.

That Henderson's mayor and city manager would casually attempt to brush off members of the public who came to speak on a controversial city proposal exemplifies the smug climate regarding public participation in their governments that is rapidly spreading throughout Nevada's public bodies.

For the Henderson City Council, however, such a dismissive attitude should come as no surprise. This same body outlawed teenage dancehalls in 2008 without properly noticing the public. It also appointed a now-sitting councilwoman through an illegal secret ballot process — for which it received, from the office of AG Masto, little more than a wink and nod.

Indeed, it appears that implicit nonfeasance by the AG's office is an important contributing factor behind the disdain Henderson's government regularly shows for its citizens.

Today, this same public body continues to disenfranchise the public in multiple ways: engaging in unagendized business during its meetings' public comment periods; collaborating with other local public bodies in a plan specifically devised to circumvent the open-meeting laws so that officials can discuss public issues in private; and, as a matter of normal operation, using closed-door briefings to receive its deliberative information and materials for items under consideration.

The Clark County School District

Another Nevada public body regularly eager to disenfranchise the public is the Clark County School District Board of School Trustees. And it, too, has received solicitous treatment by the office of AG Masto.

In late 2008, the district — after placing an important item on the school board agenda — refused to release informational material on that same item that Superintendent Walt Rulffes had shared with trustees.

This directly disregarded state open-meeting laws, which specifically mandate that members of the public receive, if they request, the same informational materials on agenda items as do board members.

What was the response of Masto's office when the Las Vegas Review-Journal filed an open-meeting law complaint? To ignore the explicit language of the open-meeting statutes and, arguably, nullify one of the law's central provisions. AG staff injected public records case law into open-meeting law, effecting an exception that grants executive privilege for "deliberative and predecisional" public meeting documents. Unfortunately for citizens, nearly all informational materials due them under the open-meeting laws are deliberative and predecisional.

However, it is not clear that AG Masto actually understands what her office perpetrated. Interviewed on the subject, she acknowledged she is "not completely familiar with" this landmark opinion by her staff.

Other infringements by the Clark County School Board include routinely misinforming public speakers that the law bars trustees from responding to them, dodging public discussions with constituents by removing its "response to public comment" period from meeting agendas, and removing from its governing policies all references of the board's ability to respond to general comment public speakers.

The White Pine County Commission

Perhaps Nevada's most flagrantly demonstrated contempt for citizens' right to know comes from the White Pine County Commission.

According to an April article in the Ely Times, county officials brazenly defied the state open-meeting law during a negotiation with city officials by going off for a closed-door meeting — despite an earlier warning by the AG's office about such violations and a reminder by a city attorney who was present.

In 2008, when this same negotiating team held discussions outside open-meeting law mandates, the AG's office produced a formal opinion (OMLO 2008-014), warning against such conduct.

Then this past spring, when city members of the team went into closed-door discussions, Senior Deputy Attorney General George Taylor sent a "confidential friendly reminder" regarding the apparent violation of the open-meeting law.

And yet, just weeks later, county negotiators met behind closed doors to produce a counter-offer to that of the city.

In this instance, White Pine County demonstrated not only indifference to the law, but even a remarkably dismissive attitude toward Masto's office — despite its "friendly reminder." What then resulted from this AG was something unprecedented during her time in office: Unilaterally, the AG's office opened an investigation and then filed a lawsuit seeking to void actions taken by the city-county negotiating team. Masto is also seeking a permanent injunction preventing White Pine commissioners from again shutting their doors during negotiations with the City of Ely.

One might think these actions signal a new attitude in Masto's office. But that doesn't appear to be the case.

During the interview, Masto was asked whether lax enforcement by her office might be a factor in the increasingly frequent non-compliance surfacing around the state. Her lengthy answer, however, skirted that issue. She preferred, instead, to suggest that modifications to existing open-meeting law might be needed:

Are people just saying, "You know what, it doesn't matter to us, because all they're gonna do is just slap us on the wrist. We don't have to really have to pay attention to it"…?

That does concern me. If that's what people are thinking, then yeah, we need to look at what's going on here with our statutes and our laws. And either strengthen it or make sure that people are aware that we're looking at it and we are going to do what's necessary.

But, from my perspective, we can only do what the law allows us to do. We are confined in that. Sort of restricted in that sense. That's why I'm more willing to open it up and say, 'What other tools do we need? What else do we need to look at to make sure that we are not only following the open meeting laws in their restrictions to use in the state, but the spirit of the open meeting law? It should not be negated or overlooked."

Actually, Nevada's open-meeting laws are remarkably sound and quite clear. What is missing is enforcement.

Masto has unilaterally expanded the discretion of her office to the extent that the law, under her tenure, is now at serious risk of becoming a dead letter.

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