Yes, the AG deserves criticism on open-meeting law
Was the article unfair?
After the publication of the Nevada Policy Research Institute's "AG ducks open-meeting law responsibilities" analysis, a member of Nevada Attorney General Catherine Cortez Masto's recently formed Open Meeting Law Task Force telephoned to offer his view that the article didn't treat Masto fairly.
The article had cited multiple instances of Nevada public bodies ignoring or consciously circumventing the clear intent of the Nevada open-meeting law. And it argued that Masto is implicitly encouraging such behavior through her noticeably weak or "discretionary" non-enforcement of existing statutes. The piece was the latest in a series examining open-meeting law enforcement in the state.
The "AG ducks" article was unfair, opined the attorney, because it failed to mention the task force Masto formed earlier this year to consider possible changes to the open-meeting law.
"You didn't even mention that the documents were for the task force," he said, referring to worksheets revealing an 18 percent jump in open-meeting law violations. That, he asserted, was a "blaring omission."
Now, it is correct that the worksheets mentioned in the article were provided to the task force and that the article merely said they came from the AG's office.
But was that unfair?
It might have been — if the direction of the task force, as led by Masto and her deputies, clearly contradicted the article's thesis. Unfortunately, that is not the case.
Should it happen that the task force, down the road, turns out to be an effective force for open government in Nevada, this researcher will be its foremost champion. Right now, however, indications are decidedly ambiguous — some positive, some not so much, as discussed below. Only time will tell.
But does anyone believe that the mere appointment of a task force — even with well-qualified members — can absolve the attorney general's office of accountability for choosing to enforce or not enforce the law? Yet, functionally and politically, that appears to be how the panel is already being used. Several times when this researcher asked about enforcement issues, Masto — with the skill of a polished politician — evaded those issues, using the task force as a shield to deflect and redirect the focus.
Moreover, in these task force meetings an underlying agenda may be emerging into view. Multiple proposals coming forth would tend to give even more discretion to the attorney general's office, in ways that would muddy the clear meaning of the law, disregard the clear intent of the Nevada Legislature and make enforcement even less predictable. For serious proponents of open government in Nevada, these are unsettling prospects.
Currently, for example, the law mandates that "action of any public body taken in violation of any provision of this chapter [open-meeting law] is void." The task force, however, is discussing creating alternative penalties, such as fines. Would this mean that forceful and definite consequences for public bodies' law-breaking would be replaced — at the discretion of the AG's office — with consequences significantly less severe?
On the more positive front, it is commendable that Attorney General Masto originally placed on the task force some of Nevada's staunchest advocates of open government. They include Senator Terry Care, Assemblywoman Debbie Smith, Barry Smith of the Nevada Press Association, Maggie McLetchie of the ACLU and Thomas Mitchell, editor of the Las Vegas Review-Journal.
Yet the attorney general has also, just recently, invited onto the task force representatives of politically powerful public bodies that find the open-meeting law a burden and want to be able to conduct business under more lenient rules. These include Mary Anne Miller, counsel for the Clark County district attorney's office and adviser to the Clark County School Board, and Paul Lipparelli of the Washoe County District Attorney's Office.
It is such "even-handedness" of this AG, coupled with her willingness to see public bodies break the law and then "cure the violation" — when and if members of the public raise a ruckus — that regularly raises concern. What Nevada needs in the AG's office is a forthright champion of the people's right to know, and of the clearly expressed intent of the Nevada Legislature.
Will this task force advance open government in Nevada? That remains to be seen. At present, observers can only consider the portents.
Some are encouraging:
- AG Masto encourages and engages all opinions during task force discussions. This has allowed strong advocacy for the people's right to know and to fully participate in government when other recommendations would tend to close down popular access.
- Members of the public making comments are neither rushed nor subject to time limitations.
- AG Masto engages in conversation and discussion with the public.
- The task force is considering ways to increase penalties for repeat offenders of the laws.
- Draft statutory language has been developed to toll the statute of limitation for public bodies that do not provide investigation records to the attorney general.
- The task force is considering requiring members of public bodies to sign acknowledgements of the open-meeting laws — just as public officials must formally acknowledge ethics requirements.
Others portents are less encouraging:
- Extra back-up materials are not available for the public at task force meetings. For public bodies, under the open-meeting law, this is required.
- The task force is discussing breaking violations into categories, such as minor, major and "egregious." Will this mean expanding the AG's discretion and further politicizing enforcement of the law?
- At the June meeting, AG Masto misinformed task force members regarding critical statistics showing a large jump in open-meeting law complaints in 2009 — incorrectly stating that the numbers were spread over three years and therefore did not warrant informing the legislature. Before the panel, Deputy AG George Taylor failed to correct his boss — who later acknowledged in an interview that the one-year period does make the data much more significant.
- Masto and Taylor pointedly told task force members that voiding a vote taken by a public body in violation of the open-meeting law did not require the office to seek an affirmative ruling from a district court. Yet, Masto failed to reveal that, like Nevada attorneys general before her, she does litigate in district court to void actions, under NRS 241.037 — as in the ongoing case against White Pine County Commission negotiators. Asked to clarify the seeming contradiction, AG Masto said she needed to "get up to speed" and promised to follow up, but to this point has not. However, in a Review-Journal op-ed on Sunday, responding to "AG ducks," Masto finally acknowledged the White Pine litigation. She also declined to repeat her June statements to the task force, writing merely that, under the law, her office has "authority" to bring lawsuits to void.
- In an interview, Attorney General Masto appeared uninformed as to litigation and appeal provisions under the open-meeting law. Often, she referred to provisions of the Administrative Procedures Act — an administrative hearing process that the mandates of the open-meeting law supersede. Even more perplexing were Masto's expressed beliefs that, even if statutes do not provide for it, both complainants and public bodies could appeal to district court AG decisions, and even do so after the statutes of limitations under the open-meeting law expired.
- At one of the earlier task force meetings this year, one member requested information regarding the names of public bodies named in complaints and those later found in violation of the law. By the most recent task force meeting, that information had still not been provided. Unfortunately, at meetings of public bodies, this kind of staff "oversight" often means that members do not receive significant information they requested. Frequently, that missing information never becomes part of the deliberations, and intentionally or unintentionally, the public body is not fully informed when it finally decides the issue.
Karen Gray is an education researcher at the Nevada Policy Research Institute. For more visit http://npri.org/.