Closing in on open meeting law

Legislature deals with bills clarifying the open meeting law

No one knows what goes on behind closed doors. So a Nevada legislator wants to expand the open meeting law to include smaller meetings—and fine those guilty of sneaky business.

No one knows what goes on behind closed doors. So a Nevada legislator wants to expand the open meeting law to include smaller meetings—and fine those guilty of sneaky business.

Photo by David Robert

Simply put, Nevada’s open meeting law requires public officials making public decisions that affect the public to make their decision in a—that’s right—public forum.

The devil’s in the details, though. What if a few, say, Reno City Council members meet to chat about downtown redevelopment? What if the city manager meets with council members one-on-one?

If the law is applied too narrowly, critics, say too much policy can be made behind closed doors. If it’s applied too broadly, it could forbid two council members from going out for lattes.

Two bills that would help clarify the open meeting law are making their way through the halls of the Nevada Legislature. The bills come in response to high-profile court cases involving the application of the open meeting law in Reno city government and Nevada’s university system.

Assembly Bill 225, sponsored by Assemblywoman Vivian Freeman, D-Reno, adds to the definition of public meetings and even throws in a possible $5,000 fine for public officials. The fine would apply to public officials if an action taken is later declared invalid because of a breech of the meeting law.

Freeman’s bill also clarifies what it means to “deliberate” on a policy that affects the public. Besides examining, weighing or reflecting on an issue, Freeman’s bill would include the gathering or exchange of information as “deliberation.”

Finally, Freeman’s bill adds a definition of what a meeting looks like. Beside the gathering of a public body at which a quorum—the number of officials required to legally make a decision—is present, the bill would also require smaller, “serial” meetings to be subject to the open meeting regulations.

While these serial meetings may have less than a quorum, the members meeting separately in smaller groups, if assembled together, would make up a quorum. Other small, serial meetings have been held merely to avoid the requirements of the open meeting law. These, too, would also be forced into the open.

Freeman said she drafted her bill in response to the serial meetings Reno city staff held with groups of Reno City Council members of three or less on issues including property taxes and redevelopment. The most infamous of these serial meetings were those held on the decision to destroy the historic Mapes Hotel. Preservationists sued the city in an unsuccessful attempt to nullify the City Council’s vote on the Mapes.

Washoe District Judge James Hardesty ruled that the serial meetings violated the spirit of the open meeting law. That ruling—as well as a similar Clark County case—has been appealed to the Nevada Supreme Court, who had ruled in 1987 that serial meetings were OK and that private legal briefings of less than a majority were acceptable for legal reasons.

“I think there is a lot of confusion,” said Reno Council-woman Toni Harsh, one of four plaintiffs in the Mapes court case.

When Freeman’s bill made it into its first round of committee meetings last month, it seemed like a bill that lawmakers could find easy to support. However, one local government official testified that the bill as it is currently drafted would make it impossible for staff members or anyone else to talk privately with public officials.

The bill would “block PTA members from talking informally with members of the local school board,” said Madelyn Shipman, Washoe County assistant district attorney, according to a report in the Las Vegas Review-Journal. Shipman told legislators that “a lot of gadflies” would abuse the law whenever they saw two public officials speaking in private.

Other concerns that were raised in the committee hearing included the $5,000 fine. Some said it would create a chilling effect on those interested in running for public office. Also, they wondered if the routine exchange of information and facts would create a violation of the open meeting law.

Dennis Myers, a veteran Northern Nevada journalist now working for KOLO-TV and an RN&R contributor, dismissed those concerns.

“Things like hallway chatter are not even on the radar,” Myers told legislators. “Serial meetings are very real around here.”

Myers recalled reporting in 1997 that Reno government officials used serial meetings in negotiating with developer OliverMcMillan on a downtown redevelopment contract. City manager Charles McNeely allegedly met with City Council members in groups of two or three. The council approved OliverMcMillan as the exclusive developer of the riverfront properties after these meetings. In years since, the city dropped OliverMcMillan.

“The outcome of those 1997 meetings is a good example of what is wrong with serial meetings—public officials come out of these meetings held out of the public eye and suddenly start voting in unison, and the members of the public never knew what hit them,” he said. “Imagine what this does to public trust.”

Kent Lauer, executive director of the Nevada Press Association, a government watchdog organization for Nevada journalists, said he doesn’t understand why information can’t be imparted in a publicly noticed meeting.

“Why do they feel this need for secrecy?” he asked.

Reno Councilman Dave Rigdon, the sole dissenting vote last year on the city’s appeal of the Mapes decision, said he felt Judge Hardesty’s ruling, which allowed for one-on-one meetings between staff and elected officials, was a good solution.

“I think Hardesty came up with a workable compromise,” said Rigdon.

In the Washoe County Commission, officials are routinely briefed in one-on-one meetings with the county manager, said Kathy Carter, county public information officer.

Patty Cafferata, one of the attorneys for the plaintiffs in the Mapes case, said she agreed with the need to clarify the open meeting law.

"[Reno city staff] intentionally held the meetings to avoid the open meeting law,” she said. She said serial meetings have become a vehicle for staff to impart unpopular information to elected officials.

One of the criticisms state lawmakers are likely to face is applying the open meeting law to themselves. Legislators currently meet in caucus to discuss legislation behind closed doors. For the majority parties who control each house—the Assembly Democrats and Senate Republicans—an argument could be made that a quorum is holding a closed meeting.

Freeman acknowledged there are some kinks to work out in her bill, and she said it will be amended. But she said the intent of her bill is clear.

“The ultimate goal is to open up government to the public,” she said.

Another bill clarifying the open meeting law is Assembly Bill 479, sponsored by Assemblyman Bob Price, D-North Las Vegas.

Price’s bill, which has yet to be scheduled in committee as of press time, is a response to last month’s divided Nevada Supreme Court ruling that sided with the University and Community College System of Nevada’s contention that campus presidential searches do not fall under the open meeting law. The bill would prohibit a closed meeting to discuss the appointment of a person to public office.

The court case stemmed from a lawsuit the Las Vegas Review-Journal brought against the UCCSN, opening up the presidential search meetings at the Community College of Southern Nevada. This has set a legal precedent for the presidential search proceedings at the University of Nevada, Reno.

UCCSN Chancellor Jane Nichols said that presidential searches are personnel meetings—which do not fall under the open meeting law.

She suggested that opening them up would result in the university system being at a disadvantage.

“It frightens off good candidates,” she said.

“Nonsense,” replied Thomas Mitchell, editor of the Review-Journal, who said campus presidents administer public funds, and therefore, the process should held in the open. But Nichols said the legislation opens the door to other public employees.

“Where do you draw the line?" she asked.