Board games

On July 22, two Washoe County School Board members—Barbara Clark and Barbara McLaury—and board attorney Randy Drake approached Superintendent of Schools Pedro Martinez to inform him of questions raised anonymously about his credentials as a certified public accountant and of an initial inquiry in Illinois that raised additional questions. In a badly handled day, the three eventually drew the other members of the board into the matter as the superintendent tried to negotiate a severance package and then allegedly threatened to orchestrate a public support campaign reaching from the governor to the Obama cabinet. Before the matter was resolved, Martinez left the school district offices and began orchestrating that campaign and so never knew what the outcome was.

He wasn’t the only one who didn’t know the ending. Although the first answer to the first question at a subsequent board news conference said the superintendent had not been fired, many reporters arrived late and reported he was fired anyway, extrapolating from what board members didn’t say. Inexplicably, the board did not say it had put Martinez on paid leave, only that he was “relieved of his duties.” It was one in a series of blunders. Martinez, who until then had been the target of harsh attacks for his firing of a popular schools police chief, quickly mobilized supporters who cast him as a victim.

There was little question that open meeting law matters were at issue. Partway through the day, the two board members and lawyer effectively added the matter of Martinez’s CPA credentials to the activities of a board meeting already underway, though no such agenda item had been posted. There was language in the open meeting law that such requirements could be waived in an emergency, and while the CPA matter had jolted everyone involved—“That was a big shock to everybody,” deputy superintendent Tracy Davies said—and what board members described as the superintendent’s unprofessional demeanor did the same, whether it qualified as an emergency was a judgment call.

From the first moment, the city’s daily newspaper tried to generate public outrage, and some television reporters took their cue from the newspaper—though others were skeptical of Martinez. Seemingly, few wanted to wait until the facts emerged before taking positions and excoriating the board, which barely defended itself—though when, at the end of July, the board filed a blockbuster court document containing its bill of particulars against Martinez, the newspaper deemphasized it.

The participating school board members were subsequently charged under the open meeting law and accepted fines (paid from their personal funds).

Much of the adverse reaction to the school board’s actions resulted from the one-sided situation—board members failing to explain themselves while vituperation poured down on them. There were several hints that that the public did not have some information. One source says the board members were instructed to remain silent so they did not give Martinez ammunition in any possible lawsuit. That poisonous instruction reportedly came from board counsel Randy Drake.

On Aug. 5, the Reno Gazette-Journal published an article by Anjeanette Damon that singled out two school board members in particular. The story was one of the flurry of RGJ coverage that helped set the tone in the community, and deserves a close look as a sample of that effort, since the newspaper’s campaign made it a player in the dispute as much as a newsgatherer.

“Tucked away from public view, deliberating on the future of the district’s leadership with no prior notice to the public or the individual in question, alarm bells should have been sounding in at least one trustee’s head. Howard Rosenberg had been in a very similar position just about a decade ago when he sat on the University Board of Regents, which chose to fire a college president in a [2003] closed meeting. That saga didn’t end well for the board. They were found guilty of a Nevada open meeting law violation, the university system lost more than a half million dollars in legal settlements and a high-profile battle ensued at the state Legislature. … Perhaps, however, Rosenberg’s history on the subject should have given him pause as [the board was] arriving at their decision. ‘He should’ve been well aware of what the requirements were,’ said Barry Smith, executive director of the Nevada Press Association. Rosenberg did not return phone calls seeking comment.”

The story seems to suggest Rosenberg should have greater familiarity with open meeting law than other school board members, which Damon confirms. “I think that my story on Howard Rosenberg and Dave Aiazzi stands for itself,” she said, adding that she believed their experience would give them “familiarity” with the law.

But why assume that knowledge on the strength of a single case before the board of regents 11 years earlier? And since Rosenberg was unavailable, why not interview someone else who had been in a similar situation?

We called Reno Mayor Bob Cashell, reaching him in New York City. He had chaired the Nevada Board of Regents in 1981 when it had a major open meeting law problem. And Cashell has presided over the Reno City Council for 12 years. Does that make him familiar with the open meeting law?

“No,” Cashell responded. “I think I know the open meeting law, but sometimes things come up and luckily you’ve got a good attorney who keeps us on the straight and narrow. And once the attorney tells us something we usually follow the attorney’s rules. We always listen to our attorney.”

If there’s doubt, what would Cashell do?

“Usually check with the attorney,” he said. “Our attorney at City Hall usually tells us when we’re getting off base. They’ll draw us back in.”

And as it happens, Rosenberg said that’s just what he did on July 22—checked with the lawyer.

Rosenberg: “Randy [Drake, board legal counsel] explained to us at the very beginning while [the superintendent] was still there that this was a meeting between the trustees and their attorney. We could discuss. We could ask for information, but under no circumstances was any action to be taken. And I asked him point blank, I said, ‘Are we violating the open meeting law?’ He said, ‘Absolutely not. You don’t have to worry about that. If, indeed, you’re even coming close, I’ll stop you before you get there.’ So I was relatively comfortable.”

In that same article about Rosenberg, Damon wrote about another school board member who had served on another public board—David Aiazzi, former Reno city councilmember. And Aiazzi said he asked the lawyer’s advice, too.

Aiazzi: “And so while he [Martinez] was gone, we had some discussion. I asked Randy Drake particularly whether we could have this discussion here today. He said as long as … we feel that there’s going to be some action taken against the superintendent it will probably involve a lawsuit. So we are talking potential litigation. And as long as we only talk about this issue, it won’t be about his character or conduct. It’s about this one thing that we have to see where we’re going to proceed.”

These quotes were taken from the attorney general’s office investigative interviews of the school board members, so the AG’s office had this information.

In her story, Damon also wrote of Aiazzi, “Aiazzi disputes that the legal course of action in the Martinez case was obvious at the time. Boards are allowed to meet privately to consider pending litigation or discuss legal matters with their lawyers. Aiazzi contends that was the pretext of the board’s decision to meet privately.”

“Pretext” is a pejorative, which Damon used to characterize Aiazzi’s thinking. “I disagree,” she told us. “I don’t think it’s a pejorative. … that wasn’t my intention.” The Random House Dictionary defines the term as “a false reason put forward to conceal the true one.” None of the statements by Aiazzi that Damon put inside quotation marks included the term.

Aiazzi told us, “I doubt I would have used that term. To me pretext means an ulterior motive or that we knew what we were going to do in advance. We didn’t know about the problem until Barbara Clark brought it to our attention.”

In the 2003 Board of Regents meeting that Damon said should have taught Rosenberg all about open meeting law, two people were fired—a community college president and his advisor. In that case, Rosenberg voted against the firing and objected to the board’s conduct in firing the men without allowing them a hearing. He told us, “Both of them should be accorded the right to listen to the charges against them and be able to talk to us” (“Without a hearing,” RN&R, Dec. 25, 2003).

At that time, we reported, “During the closed [regents] meeting, there were five attorneys present in the room. Three were the regents’ official counsels—Tom Ray and his deputies, Mary Dugan and Walter Ayres. They reportedly counseled the regents that their actions were legal.”

This reporter once heard Rosenberg say that the school board must post an agenda six days in advance. It would be nice if that was the case, but it’s not. Three days is the requirement. There has been considerable comment to the effect that the members of the school board “should have known” the open meeting law. The Gazette-Journal certainly has led opinion in that direction, with the result that letters like this have appeared in that newspaper:

“You cannot tell me any of the board members didn’t know and understand the open meeting law, and the attorney should not take all the blame. Every elected official should know, understand and be responsible for the open meeting laws or they shouldn’t be in office. … Ignorance of the law is no excuse.”

As it happens, ignorance of the law is an excuse, according to the attorney general’s office, if the ignorance derives from legal advice. A 1981 Nevada attorney general’s opinion established this doctrine as an office practice, and that policy has been part of the AG office’s procedure ever since. But we’ll get back to that in a moment. First, let’s look at whether board members “should” have known the law.

There are 8,659 words in the Nevada open meeting law. They are not easy to decipher. Some of them are subjective, some are legal terms not in common use, and some parts of the law are not even contained in the statute at all. For instance, the Nevada Supreme Court has imposed a “balancing test” on the law that is not even mentioned in the law. Simply reading those 8,659 words doesn’t fully inform a public official. So the attorney general’s office produces an open meeting manual to explain the nuances of the law. It is 131 pages long. Should public officials know what is in it, too?

Consider this: The open meeting statutes are only one set of laws the school board members must deal with. Under the section of Nevada law dealing with education, Title 34 of Nevada Revised Statures, there are 19 chapters of statutes, just one of which—the section headed “Pupils”—runs 41,484 words. Should the board know those chapters in detail, too?

The open meeting law is a tool of my trade as a reporter. I have not only used it, I have dealt with changing and amending it. My first involvement was at the 1975 Nevada Legislature, when I worked on applying the open meeting law to the Legislature itself and co-authored an article on the subject for Nevada Government Today magazine. In the years since then, I have testified on open meeting amendments and filed open meeting complaints. And after 40 years working with and using it, I don’t know the open meeting law well. I always turn to those who do. Maybe I “should” know the law, but it is highly detailed, and there is a lot of case law (court rulings) affecting its meaning. In fact, I can count on one hand the people in this state who do know the law in detail—and none of them are reporters. There is one person in this state I always turn to for information on the open meeting law. I’ll go further. When I served as Nevada’s chief deputy secretary of state, I had to use the statutes on things like uniform commercial code and trademarks. But I needed a lawyer to explain them, and six weeks after I left the job, I would have been hard pressed to remember those statutes.

Consider this, too: Legal counsel are mentioned 19 times in the open meeting law manual but are never mentioned in the index. The attorney general’s office may have some discomfort in dealing with the role of their fellow attorneys as public counsel.

On that fateful July 22 this year, Washoe School Board lawyer Randy Drake was seemingly everywhere that was relevant and germane to the open meeting issues.

Drake was one of the people who informed the superintendent that questions had been raised about his accounting credentials. When the superintendent started talking about resigning and the conditions he would want fulfilled before he departed, it was Drake who conducted much of the negotiation with Martinez and informed board members of the superintendent’s bargaining positions—including informing them of the final impasse. It was Drake who School Board President Barbara Clark consulted on whether to call a public meeting on the matter. It was Drake who Rosenberg and Aiazzi asked for advice on whether they were within the law. It was from Drake that the members of the school board gained the impression that Martinez had walked out of the building and off the job. Drake was involved in deciding what would be announced to the public. He may have told the board members not to fully inform the public in order not to weaken their legal position. At no point, according to the board members, did he advise them that they were in violation of the open meeting law, either in the early events when three people were involved, or later when the full school board was drawn in—though they said they asked.

• SCHOOL BOARD MEMBER BARBARA CLARK: “And then I talked with Randy about whether or not we could call a legal meeting because it’s not my role as an individual trustee to see whether or not this was an issue with the board or not, so we went ahead and called a legal meeting. … He [Drake] indicated it was fine to have this conversation regarding this issue.”

• QUESTION: “[D]id Randy as counsel give you legal advice as to what to do or what not to do? All I want you to do is answer yes or no.”

CLARK: “No.”

• QUESTION: “Had you received any advice from your legal counsel during this meeting? …”

SCHOOL BOARD MEMBER BARBARA McLAURY: “No.”

• QUESTION: “Had you been given—did you receive any legal advice from your legal counsel?”

SCHOOL BOARD MEMBER JOHN MAYER: “I don’t believe so. … Yes, he said this is a lawyer/client meeting.”

A couple of members of the board said Drake did offer advice, but one of them, Lisa Ruggerio, said it was routine—“Just business as usual.”

According to the statements gathered by the attorney general’s office, two school board members asked Drake directly if they were outside the open meeting law. When Rosenberg broached the question, Drake said he would keep them out of trouble.

When we asked Drake about the matter, he declined comment. “I can’t go on the record about that,” he said. “That’s confidential information.”

Remember that meeting held by the Nevada Board of Regents when Bob Cashell chaired the regents? It happened on January 12, 1981, and led to a basic policy change in how some open meeting law complaints are handled, a shift directly affecting this case.

There had been some bitter conflicts in those years among the regents, and one member proposed that they go into closed session to discuss the competence of—themselves. Normally closed meetings to discuss competence are held for employees or appointees of the board, so the board lawyer was asked if the closed meeting would be legal.

“Yes, you can do that,” lawyer Larry Lessly said. The room was cleared, and only the regents were inside. This item had not been posted on the agenda and neither the lawyer nor anyone else told the regents to keep a record of the closed meeting. There were actually two closed sessions, morning and afternoon, the second one convened by Cashell.

The Las Vegas Review-Journal filed an open meeting complaint, and the attorney general’s office investigated. It concluded that the open meeting law had been violated. But Attorney General Richard Bryan said that because their lawyer had not advised the members that they were in violation of the law, the state would not proceed with action so long as the Regents subsequently took corrective action. (The Washoe School Board this year corrected its action by voiding it.) Bryan also made clear that the members of a public body need not ask their counsel if they were in violation of the law, as Rosenberg and Aiazzi did. Rather, Bryan wrote, it was the lawyer’s job, if he was present, to alert the members when he observed violations of the law:

“At no point were the members of the board of regents advised by the general counsel for the university that the procedures they followed in closing the meeting and their failure to keep minutes of the closed meeting were in violation of the requirements of the open meeting law. In the opinion of this office, reliance on advice provided to the board of regents by its legal counsel … does not indicate an intent to knowingly or willfully violate the law. Thus, though it is necessary to take strong corrective action to prevent any further violation of the open meeting law by the board of regents, a criminal prosecution is not permissible.”

This became a permanent state policy. Subsequently, the language was entered in the open meeting manual. In the 11th edition (June 2012), prepared by the current attorney general and staff, that opinion and policy still stands:

“2. Knowledge by a member of a public body that the meeting is in violation of the open meeting law. The [1981] opinion held that, when members of a public body rely on advice of counsel, they should not be held to know that a violation occurred.” That advice, it says further, is something “upon which a member can rely as to whether … the meeting is in violation of the open meeting law.”

• Last year, in responding to an open meeting complaint about the Washoe Board of Health, Attorney General Catherine Cortez Masto wrote, “The Board relied on advice of counsel. … This was not an OML violation. As early as 1981, this office has recognized that public bodies should be encouraged to rely upon advice of counsel and not be punished for doing so. In [1981] the Office of the Attorney General opined [that] when members of a public body rely on advice of counsel, they should not be held to know that a violation occurred.”

• Deputy attorney general George Taylor brought the charges against the members of the Washoe school board. In the June 12, 2013, edition of Nevada Lawyer magazine—16 months before he took that action—Taylor wrote that elected officials can incur liability if they ignore agency lawyers:

“But, is the public body member’s conduct and individual participation in a public meeting protected, by the presence of counsel, from the penalties set out in the OML for violations? As discussed below, public body members may be protected from penalties if the member has sought advice of counsel and acted in accordance with the advice.

“The Legislature did not enact penalties to discourage participation by individuals on state and local government public bodies. Volunteers and elected officials need not fear civil or criminal charges, based on their participation, because of an inadvertent OML violation. Indeed, the Legislature intended to encourage public participation, despite inadvertent violations. Inadvertent violations may be ’cured’ if the public body takes corrective action, either during the meeting or by rescheduling the matter in question to a future agenda.

“Legislative penalties are directly aimed at the knowing violation. Where counsel does render advice regarding matters ongoing during a public body meeting, failure to heed that advice can lead to a finding that a deliberate violation occurred. Under today’s OML, failure to heed the advice of counsel could lead to prosecution and/or a civil penalty.”

It turns out that heeding that advice can also lead to prosecution and penalty.

There was nothing in the AG interviews of other board members that contradicted the accounts of Aiazzi and Rosenberg that they asked their lawyer if they were out of bounds and received his negative response. Why did the attorney general’s office prosecute the school board in spite of its own policy? Taylor did not return calls seeking comment, so we cannot know for certain.

It might have something to do with the fact that the AG’s office—made up of public counsel—has a natural reluctance to look on the public’s lawyers as sources of problems, as indicated by deemphasizing the role of public counsel in the open meeting manual. It may also have something to do with the fact that there was a powerful newspaper that wanted the scalps of the members of the school board throwing its weight around, and its pressure on the attorney general’s office—and on its readers—was intense.