Closed to the public

If the Nevada Legislature fell under the state’s open meeting law, the attorney general might now be investigating both the governor and the legislature.

The open meeting law requires three days notice of a public meeting and also requires that it be posted to a public body’s website. The Nevada Legislature did not provide that notice of the special session last month. This was because the governor didn’t call the session until a few hours before it was supposed to start, and only he can write the agenda for the special session. So that agenda—also required of other public bodies three days in advance—was unavailable to the public, thanks to the governor’s delay.

The state’s open meeting law does not cover the Nevada Legislature, but there is open meeting language in the Nevada Constitution that does—but the lawmakers ignore it. It was contained in a constitutional amendment approved by voters 20 years ago this coming November.

The amendment originated with Assemblymember Steve Coulter, who had been working for legislative open meetings since 1975. He and other legislators initially wanted to simply bring the legislature under the regular open meeting law, but a legislative lawyer said that because of existing constitutional language allowing the Senate to close its sessions, only a constitutional amendment would do the job.

In his last legislature in 1981, Coulter’s latest measure was changed from an amendment requiring open meetings to an amendment allowing closed meetings. It was rejected by voters. There the issue lay for another eight years.

But then, in 1989, the part-time legislators voted themselves an increase in their legislative pensions, a step that rubbed raw the nerves of rank-and-file voters. The public reaction was fierce, the lawmakers begged the governor for a special session where they repealed the hike, but the issue still took a toll, prompting a number of election defeats.

Legislative leaders at the next legislature, in 1991, seized on reviving the constitutional amendment requiring open legislative meetings as a way to repair their tattered reputation. It was approved and then given second-round approval by the 1993 legislative session. Voters approved it as Question 2 in the 1994 election, 78 to 22 percent. No recount was required.

The legislators who had embraced open meetings so desperately then took a wholly cynical step. They ignored the new law. To this day, no rules such as time requirements for posting agendas have been adopted. The only mentions of meetings in the legislature’s joint rules deal with the date of first joint meetings on budgets of state agencies, committee meeting records, and conference committee meetings. And much legislative business has been moved out of legislative bodies and into groups that do not fall under the law.

The language now in the constitution reads, at article 4, section 15, “The doors of each House shall be kept open during its session, and neither shall, without the consent of the other, adjourn for more than three days nor to any other place than that in which they may be holding their sessions. The meetings of all legislative committees must be open to the public, except meetings held to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.”

In the years after its enactment, legislative leaders moved to two new techniques for doing business behind closed doors—party caucuses and leadership meetings.

The caucuses were not solely a product of the new law. They were also fueled by the increasing polarization of politics in the United States. As the public became less partisan, politics became more so. Legislative bodies—national, state, and even local in some jurisdictions—were riven by partisan splits and the camaraderie and congeniality that once characterized legislative politics left the scene.

In the Nevada Legislature, as lawmakers of opposing parties stopped lunching together, they retreated into party caucuses to meet and plan strategy, enforce discipline, and try to scrape every possible bit of party advantage out of any development.

When Spike Wilson, who had stepped down from a Washoe County Senate seat in 1986 after a widely admired 16-year tenure, returned to visit in the late 1990s, he was astonished by the number of caucuses. “I don’t think we ever had a party caucus when I was there,” he said.

The advantage to open meeting opponents—who seemed to include all legislators, since no one objected—was that these were technically not legislative meetings, nor meetings of any public body. They were meetings of the members of political parties. As such, they did not fall under the constitutional amendment.

That doesn’t mean the legislators necessarily had to close them. Years earlier when caucuses were rare, party caucuses were open. For instance, when in 1975 Gov. Mike O’Callaghan vetoed a bill repealing the motorcycle rider helmet law requirement (coincidentally also sponsored by Coulter), Assembly Democrats met in caucus in the Assembly lounge to plan how to uphold the governor’s veto. It was open to anyone who wanted to attend. Reporters were there taking notes.

But those days have passed as politics have become cutthroat. Caucuses have become a way of excluding the public from legislative business.

Business in the Assembly and Senate halls is frequently interrupted as snags develop on votes and the two sides withdraw into their closed quarters to decide—out of public view—how to respond and then come out singing in unison. The public often never knows what hit it.

Leadership meetings, too, serve the same purpose of keeping the public at bay. These gatherings might feature, for instance, all the committee chairs and floor leaders, who do not actually constitute a public body and thus are not covered by the law.

Nevada Press Association director Barry Smith says the dormant constitutional language does serve a purpose.

“It makes sure the full legislative bodies themselves are open,” he said, referring to the daily floor sessions. “It sends the message the committee meetings have to be open. But … the tendency to go into caucuses and come out knowing what they are going to do means there’s still a lot of the process going on behind closed doors.”

He has tried to interest legislators in writing a chapter of the open meeting law to cover the legislature in ways that deal with the special problems it has that other public bodies don’t, but so far, he said, “They seem happy with what they have.”