The politicians’ friend: Part II

For law enforcement professionals, whether they're cops on the beat or state attorneys general, a perpetual concern is balance — ensuring that the letter of the law is not allowed to overshadow the spirit of the law. 

But what happens when it is the spirit of the law which is exploited, and the actual enforcement that is being slighted?

Up until 1983, the only enforcement available for Nevada's open-meeting law was a set of criminal penalties. So, in that year, Nevada Attorney General Brian McKay asked lawmakers to pass new legislation giving the AG's office a new tool with which to enforce the open-meeting law: civil litigation authority.

Bill Isaef, one of McKay's top deputies, called the option of civil redress "an excellent carrot and stick to public bodies," encouraging them to "make certain that they take every possible effort to comply with the provisions and … intent of our open-meeting laws."

"The ability to void actions and obtain injunctive relief through civil action, Attorney General McKay told the Assembly Government Affairs Committee, "just makes the enforcement easier" and "makes it a better bill."

The new legal tools gained by the AG's office in 1983 were important. For the next two decades, they allowed attorneys general to effectively deter violations of, and compel compliance with, the state's sunshine laws.

The civil litigation authority had another result: Because public bodies knew the AG's office now had this "stick behind the door," they took it more seriously when the office suggested they take corrective action — in the parlance of the law, "cure a violation."

Nevada attorneys general have long held that it is within the "spirit of the law" to allow public bodies to take curative action. While saving state and local taxpayers the costs and time delay of legal action, it can still yield compliance with the law by public bodies.

In 2006, for example, the Silver Springs General Improvement District violated the open-meeting law by failing to post its public notice three days prior to its Sept. 5, 2006, meeting. But the district agreed to — and did — cure its violation by properly noticing an agenda and re-voting the items within two weeks. At that point, Senior Deputy Attorney General Neil Rombardo closed his file on the case.

In 2007, another public body unilaterally cured its violation of the open-meeting law and avoided litigation by taking immediate corrective action. The Douglas County Planning Commission violated the law when a quorum of commission members gathered during a meeting recess and considered an agenda item. However, after the recess, Commissioner Margaret Pross immediately, on the record, acknowledged the violation and disclosed the content of discussion. This cured any violation and negated any need for action from the AG's office, opined Senior Deputy Attorney General George Taylor — new point man on open-meeting-law violations under newly elected Attorney General Catherine Cortez Masto.

Lately, however, several cases suggest that the "spirit of the law" approach, as currently used by Cortez Masto's office, is departing significantly from the original intent of the law — reducing actual enforcement to something more akin to a chummy advisory service eager not to upset state or local politicians.

A signal case occurred in 2008, when the Henderson City Council violated the open-meeting law by approving an ordinance it had substantively revised without posting the revision and without allowing the public a chance to respond. Deputy AG Taylor, in a letter dated 120 days after the infraction (and thus after the statute of limitations on enforcement had run out), obliquely acknowledged that the City had violated the law. He wrote that "the Bill's revision was not noted on the agenda of either Committee or Council," and that "[W]e are not convinced that these facts cure the public body's duty …"

Nevertheless, because he deemed the city to have "cured" other violations, Taylor closed the case, leaving the invalid ordnance on the city's books. Yet NRS 241.036 specifically states that any action taken in violation of the open-meeting law is void. Not until some six months later did the Henderson Council, under citizen pressure, finally repeal the invalid ordnance — which had banned teenage dancehalls.

When the Nevada attorney general's office closed the case without compelling city compliance with the law, without acting to void the offending action and without seeking to remove an offending ordinance from the books, a message was sent to the Henderson City Council and to public officials across the state: Non-compliance with Nevada's open-meeting law is no big deal, in the view of this attorney general, and — to the degree the office can tap dance past the issue — will be ignored.

And, sure enough, Henderson is demonstrating it got the message. Writing in the Las Vegas Sun, reporter Sam Skolnik noted just last month: "The city of Henderson appears to be getting used to conducting important business in private. Secret meetings or votes by the Henderson City Council have occurred twice in the past several months."

Secret votes by public officials, however, are explicitly forbidden in the open-meeting handbook the attorney general's office gives to public officials.

"Since secret ballots defeat the accountability of public servants," says the manual, "the Office of the Attorney General believes they are not permitted under the Open-meeting law."

Nevertheless, in July members of the Henderson City Council initially kept their votes secret when appointing Deborah March to the empty Ward II council seat.

When the Las Vegas Review-Journal afterward filed a complaint alleging open-meeting-law violations, Deputy AG Taylor again waited 120 days before responding. He then wrote that the City's "balloting process did not adequately inform the public about each member's vote." Yet he again stopped well short of stating clearly that the vote violated the open-meeting law, or that the action was void. He then argued that Henderson had "cured" the violation on July 21 when council members publicly signed and recertified their ballots.

But did the city truly "cure" the violation?

Under Henderson's city charter, a vacancy on the city council must be filled by a majority vote of the members within 30 days after a seat is vacated. Otherwise, a special election must be held to fill the seat.

Because the July 8 vote to appoint March violated the open-meeting law and was legally void, the city had failed to meet its 30-day deadline for making the appointment. Legally, therefore, it was required to call a special election.

But it did not. And Deputy AG Taylor — with full knowledge of the context — chose not to enforce the law and void the vote but instead condoned a supposed "cure" that directly violated the city's charter and deprived its citizens of their rights under that charter.

Clearly, the citizens of Henderson were dependent upon Taylor to protect their rights and enforce the open-meeting laws.

Instead, the AG's office chose to defend the politicians and slight the people.

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