One less hiding place

The Nevada Supreme Court recently handed down an important and far-reaching ruling, reaffirming public access to the workings of our government or, to put it another way, granting us a window on the proverbial sausage factory. The court unanimously ruled that when government officials use personal devices, such as cell phones and email, to conduct public business, then those communications become part of the public record under the Nevada Public Records Act. The ruling stems from a lawsuit brought by the Comstock Residents Association against Lyon County and Comstock Mining, Inc. (CMI) over a master plan amendment and zoning change potentially allowing open pit mining in the town of Silver City. While considering the application, the commissioners communicated among themselves, county staff, and mining company officials and consultants using personal cell phones and email. Comstock Residents petitioned the lower court for access to these communications—arguing they could include evidence of conflicts of interest and other possible improprieties. The petition was denied in district court.

In overturning the lower court decision, Justice Michael Cherry underscored the importance of the Nevada Public Records Act to basic democratic principles. He wrote that, in furthering these principles, “we begin from a presumption that public records must be disclosed to the public.” And in clarifying the true scope of “public records,” the Court put government officials on notice they cannot escape scrutiny simply by switching to their own cell phones or email.

This is a clear win for openness in government, but the Comstock Residents’ lawsuit shows what the decision means in practice. Comstock Residents allege they were denied due process because two Lyon County commissioners had conflicts of interest and should have recused themselves. One received an inordinately large—$17,500—campaign contribution from CMI and its associates, while another had a lucrative, ongoing business relationship with the mining company. They also appeared to be acting in concert with CMI and its consultants. Finally, the proposed land-use changes were almost unanimously opposed by the residents of Silver City.

None of these factors, taken by themselves, are necessarily wrong. Politicians routinely—albeit preposterously—argue that money has no effect on their decision making. County commissioners certainly can advocate for individual businesses, and they invariably make decisions many of their constituents oppose. But when all three come into play at once—to an exaggerated degree—then we have to start asking at what point the appearance of bias or favoritism actually translates into denial of due process. A good place to start looking would be somewhere commissioners might assume what they said and did would never see the light of day. Fortunately for us, and thanks to the Nevada Supreme Court, there is now one less such hiding place.