Talking to the hand

Joe Enge

Nevada’s Open Meeting Law was designed to generate public discourse and debate. Yet school boards have, ironically, used it instead as a means of avoiding frank discussion with the public — thus turning the law on its head.

The tactic of some school boards has been to tell citizens, during public comment, that the law precludes board members from discussing issues raised by the public that are not on the agenda.

This misinterpretation of the Open Meeting Law allows school boards to avoid addressing unexpected and uncomfortable topics during public comment sessions. Naturally, citizens feel antagonized upon being told, essentially, to “talk to the hand.” Eventually – and indeed this was perhaps the intent all along – people draw the conclusion that to raise such issues during public comment is pointless.

If the Open Meeting Law is being used for purposes that directly oppose its obvious intent, legislation would seem in order. Yet legislation shouldn’t be necessary, as this problem was actually resolved 16 years ago, after the Clark County School District employed the typical “we are precluded by the Open Meeting Law to respond or discuss” tactic. This prompted Assemblyman Lou Bergevin of Douglas County to push for legislation during the 1991 Session stating unequivocally that public bodies may discuss matters raised by the public.

New counsel for the Clark County School District supported the change in 1991, telling the Assembly Committee on Government Affairs, “… [W]hen the board members do not respond to the individuals concerned, it makes the individuals very antagonistic and they are very upset by an absence of response. So what we are asking for is the ability to allow the public to come forward, express their concerns, and get feedback from the board without taking any official action.”

The legislation passed and has been law ever since. Yet in some quarters, the old “We can’t respond” canard remains alive and well here in 2007.

Of Nevada’s 17 school districts, three continued to misuse the law even after the 1991 law was passed. The Washoe County School District’s agenda states that “[t]he Board is precluded from discussing or acting on items raised by Public Comment, which are not already on the agenda.” The Eureka County School District’s policy says the same thing, word for word.

That the Washoe County School District has not changed its agenda’s wording is rather surprising in light of the 2005 warning it received from the attorney general that “… this Office advises that the Board change its policy of stating that the law prohibits the Board from commenting on statements made by the general public.”

The third culprit, Carson City, ended the practice of misusing the Open Meeting Law in September of this year. While the district never put its misguided policy in writing, it regularly verbalized its position to citizens who spoke up at meetings. As a member of that board, I made frequent objections to its interpretation and requested that Assistant Attorney General George Taylor address the issue. On September 4, 2007, Taylor clarified the 1991 law, telling us that 1) the legislature encourages public bodies to engage in discussion with members of the public; and 2) the law does not require the public body to answer inquiries made during public comment; it simply does not prohibit discussion.

Some counties are to be commended for their commitment to openness, particularly Mineral County, whose policy says, “It is the School Board’s intention to listen and be responsive to the general public’s concerns.” Clark and Nye Counties also have policies that explicitly encourage open dialogue.

Not so in Esmeralda County, where the policy is to tell citizens to “… please know that it is not our intention to respond to/or discuss your comments at this meeting.” Esmeralda’s position is legal and within the board’s rights, if not very inviting.

While public bodies pay lip service to the idea of welcoming public input, the reality is that many consider it a nuisance. It is disconcerting that any school district, 16 years after the passage of a law clearly intended to encourage public discourse, is still getting away with subverting both the letter and the intent of Nevada’s Open Meeting Law.

Joe Enge is education policy analyst at the Nevada Policy Research Institute.