Public officials aren’t breaking open-meeting laws when they discuss business outside formal meetings, but critics question the practice
On Sept. 20, the morning after Reno-Sparks Convention & Visitors Authority chief Jeff Beckelman announced his resignation, Reno Mayor Robert Cashell and City Councilmembers Sharon Zadra and Dwight Dortch met at the Gold-N-Silver Restaurant to talk over breakfast about replacing Beckelman.
“We didn’t have a quorum,” Cashell said at the restaurant after the meeting. “We were just talking about replacing [Jeff] Beckelman, you know, at the convention [authority], who quit last night.”
The session at the Gold-N-Silver wasn’t a formal city meeting. But it was an encounter of top city officials at which city business was discussed. The public will never know what was said. It may have been a meeting at which a consensus of the three was arrived. Or it may have been nothing much.
Cashell, credited with making city government more open and welcoming to the public, didn’t concede that the discussion is even city business since the RSCVA is a separate panel.
Zadra says it was initially a session with herself, Dortch, and a prospective candidate to replace Beckelman. The two councilmembers hold city seats on the RSCVA.
“We chose a public place.” Zadra said.
Partway through the session, Cashell was phoned and asked if he would like to join the three. Zadra said she had no difficulty with the meeting because there was no effort to reach any kind of consensus on issues before the council or the RSCVA, and there was no quorum— and she would have objected if there had been.
“Where I would have a problem is where it was approaching a violation of the intent or the letter of the open meeting law. Obviously two people from a board of 13 is not even close to violating either of those.”
She said she would extend the same courtesy to any other candidates who expressed an interest in the job.
But such meetings still arouse concern.
“Back in the 1960s, Carson City’s elected leaders would meet at the Carson Nugget Coffee Shop,” says open-government advocate Andrea Engleman, a former director of the Nevada Press Association. “There they would decide how they would vote when they met in public meetings. … Nevada’s Open Meeting Law put a stop to many of these ‘backroom’ or ‘off the cuff’ deals.”
However, interpretations of that law by the Nevada attorney general’s office during the 1990s undercut many its provisions.
Some public officials say they can’t do all their business in formal meetings. They also say they can’t avoid talking about public business on social occasions. Others say they are scrupulous in social settings about keeping the conversation on weather or movies.
Steve Bradhurst, who served as a Washoe county commissioner, said he never found it necessary to talk public business outside the formal meetings. He said he wouldn’t even discuss public business with other commissioners while they were milling around before a meeting started. He recalls formal meetings that were held in informal settings—but even then and during breaks, conversation stayed off anything official.
“We would take a break and all of us grab a bite to eat and sit around a table, but it seemed to me it was more, ‘How you doing, how’s your family?’ And then on occasion we’d go to Gerlach … and two or three of us would be in one vehicle, and the same thing, you know, seemed like we were just careful to talk about our families or the weather or Gerlach.”
Critics of the practice say the use of social settings for public business can lead to serial meetings and “retreats” designed to avoid public access. Serial meetings are multiple meetings of a public body. Each one is held with less than a quorum of the full body, thus avoiding open-meeting-law requirements, and they are held in a series, so all the members of the body eventually participate. Often, staff members succeed in creating a consensus on an issue among the officeholders by using such sessions.
Nevada’s Supreme Court originally encouraged the use of serial meetings for legal briefings, but once they were in use for that purpose, they spread like wildfire for other uses.
In 1995, the Washoe County Airport Authority used two serial meetings at Lilly’s Restaurant and Harrah’s Steak House to discuss the airport takeover of the Rewana Farms neighborhood. After an investigation, the Nevada attorney general’s office approved the meetings.
Thomas “Spike” Wilson was a longtime state senator, an advocate of open government, but he says good-faith conversations in informal settings or hallways lead to better laws and policies. He becomes irate when he hears criticism of officials chatting outside of official meetings, though he opposes serial meetings.
"[Serial meetings are] a contrivance to avoid the obligation of the open meeting law. That’s entirely different from a situation where one colleague talks to another and says, ‘I’m troubled about this issue, what do you think about that? Is this good public policy?’ or ‘Do you believe that witness?’ That’s a different thing. … And it would be a mistake for the remedy for that abuse [serial meetings] to say … a legislator or a commissioner can’t have a conversation with a colleague about anything that might be on an agenda sometime. Baloney!”
Howard Rosenberg, elected in 1996 to the Nevada Board of Regents, says he was a hardliner on open meetings when he was elected but has softened his approach since then. He says he now understands the need for closed personnel sessions to avoid embarrassment to an employee until the nature of a dispute is determined and while campus officials are being recruited by Nevada from jobs in other jurisdictions.
But Rosenberg, who has a strong record of supporting openness during his terms as regent, also says he’d be disinclined to use meetings in social settings to do business. He says he’s not aware of such maneuverings being used by regents, though he doesn’t rule it out.
“The board of regents doesn’t have that problem … at least not that I’m aware of,” he said. “I’ve not been pulled into anything like that, and so far as I know, that doesn’t happen. Now, having said that, there are times when there’s a 7-to-6 vote that I’m saying to myself that they walked in here knowing that they had the votes. And I am sure that there are times when the open-meeting law is indeed broken.”
Bradhurst says he kept his discussion of county commission issues to the meeting table, that he did not lobby other commissioners, and he never found that it interfered with governance.
“It didn’t for me. … That was just my own way of operating, as I just saved everything for the meetings. … I guess maybe I was anti-social, but I just felt like I need to put it all there on the table at the commission meeting.”
Engleman says meetings in social settings may successfully get around the law, but the cost is higher than whatever benefit comes from the business done in the meeting. She says when such meetings become known, they foster cynicism about government and drive down voter turnout.
“Decisions made over a meal or a drink may not be illegal,” she said. “The Open Meeting Law may not have been broken; ethics laws may not have been violated, but the public perception of such activities is never good. And whether you like it or not, perception, to many, is reality.”