Openness suffers

Legislators wanting to crack down on terrorism ended up cracking down on Nevadans

Some of the fiercest battles fought at the Nevada Legislature this year dealt with open-government issues.

Some of the fiercest battles fought at the Nevada Legislature this year dealt with open-government issues.

Photo By Dennis Myers

Each time Nevada’s Legislature meets, the right to know what the government is doing is at risk. So are civil rights. This session was no different.

“I actually think we did better than I thought we would do,” said Sen. Terry Care, a Clark County Democrat and former Democratic Party state chairman. The former Las Vegas news anchorman, now an attorney, voted against each bill that would have closed down information.

“I was pleased that my bill opening up some personnel sessions to the public passed. We all have to remember that the [open-meeting] law is for the public, not the elected public officials,” said Care.

Under Care’s bill, public bodies such as school boards, county commissions and the Board of Regents must discuss the job performances of school superintendents, county managers and university presidents in public. Even the hiring of such people must be done in public.

“These people are handling thousands or millions of taxpayer dollars. What do they have to hide?” asked Care. “I’m not as concerned with someone’s possible embarrassment as I am that the public understands how their money is being spent and policies are made.”

Nevada’s open-meeting law used to be pretty simple. But as attorneys for public bodies provided advice allowing meeting closures, amendments had to be passed to plug the loopholes. This year, lawmakers and the state attorney general proposed a number of bills to clarify or close loopholes in the law. (The attorney general is charged with enforcing the open meeting law.)

But the Legislature failed to approve requests by the attorney general to raise fines for violation of the law. Lawmakers also failed to remove what might be called the “My attorney made me do it” provision of the law, which says that, if public officials say they didn’t know they were breaking the law, they can’t be held responsible. This is commonly used where public boards have elicited advice from their lawyers, who advise them that they can legally close a meeting.

The District Attorney’s Association and the Nevada Faculty Alliance, representing higher- education faculty, opposed changes to the open-meeting law. One measure would have permitted local governments to close meetings merely to discuss terrorism.

“Nutty!” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Arlington, Va. “We’ve seen some similar laws in other states, but they were very narrowly drawn.”

Terrorism has become the new reason to keep information from the public. Some lawmakers exploited a climate of public concern to claim that everything concerning security must be kept secret—so secret, in one bill, that not even the state attorney general should be able to view minutes or attend the meetings.

The bill, requested by the city of Las Vegas, split Assembly Democrats. Speaker Richard Perkins voted for the bill; Democratic floor leader Barbara Buckley and Washoe Democrat Sheila Leslie fought it and succeeded in defeating it. The Nevada Press Association and the ACLU helped with lobbying late in the legislative session.

Access to public records took a beating in this session. The Police Protective Association wanted to keep county tax assessors’ records confidential. Such records have always been public.

“The problem, of course, is the lack of checks and balances,” explained Dalglish.

Dalglish says that when she was a reporter at the St. Paul Pioneer Press, she was able to discover from assessors’ records which members of various public bodies were condemning their own properties and paying themselves large amounts of money.

Only through such records being open and available can members of the public decide whether all homes are being taxed fairly. In addition, such records can provide information that contributes to community debates on issues. For instance, when Raley’s Supermarkets was trying to put a new grocery store into a mostly residential neighborhood at the corner of Mayberry Drive and Hunter Lake Drive over the opposition of some residents, the fact that some influential public officials lived in the neighborhood became a part of the dialogue on the issue.

In addition, the original problem the bill sought to address—protecting the home addresses of judges—didn’t necessarily need legislation for a remedy. Washoe County Assessor Robert McGowan says he had discussed the problem a few years ago with Nevada District Judge Janet Berry, and when the time came for him to put his records online, he kept that conversation in mind. “We could have put it on the Internet searchable by names,” McGowan said. “I finally put it out but without a name search. You have to search by address.”

Assessors fought the bill, and in the end, police and judges will have to demonstrate a real threat against themselves to get a court order to delete their addresses. Assessor’s lists will still be published with parcel numbers and names. By trying to close the assessment rolls, the police probably drew more attention to the availability of such records.

Other bills shut down information at public-recreation centers, for safety reasons. Some feared their homes would be burglarized while they took a class. Others worried their identities would be stolen. The legislators finally recognized that the problem was less one of access to records than of agencies collecting information (such as Social Security numbers) for which they have no need.

So Buckley introduced a bill requiring government to hide all such information in public databases but keep other information open and available. The bill passed; state government has until 2015 to comply.

One bill was passed unanimously by both houses. All lawmakers’ names will now be on the bill draft request list, so members of the public will know who is requesting a proposed law before it’s introduced. But bills opening up information were few and far between.

And there were measures limiting freedom of speech.

“When did we stop looking at whether a law is constitutional?” asked Clark County Sen. Dina Titus, the Democratic floor leader.

It took a federal court decision to convince the Legislature to repeal a law that allowed political speech to be penalized with fines. Another successful bill stops the Gaming Control Board from fining casinos for bad taste in advertising. But lawmakers approved a measure making it a misdemeanor to file a false complaint against a policeman if it results in an investigation.

The bill was a replacement for an earlier law that was overturned in federal court following a lawsuit filed by the American Civil Liberties Union of Nevada. ACLU lobbyist Richard Siegel says this law too is unconstitutional. The measure became one of the highest priorities for the ACLU at this year’s Legislature.

“For us, this was one of the big bills because … the police-complaint system was at stake. If there are penalties against false complaints, criminal penalties, there is no police-control system, as far as we’re concerned.”

One problem is that the word “knowingly” was deleted from the bill and the word “deliberately” was substituted. The two terms aren’t synonymous—knowingly tends to be defined as something like “calculatedly” or “with knowing intent,” while deliberately is usually defined as “intentionally.” Virtually all complaints are filed deliberately, while some may not be filed in full knowledge of all facts. In addition, “knowingly” is the term more commonly used in other sections of Nevada statutes.

There were other amendments in the measure, but Siegel says the changes made the measure less constitutional. It puts police instead of prosecutors in the role of deciding whether a false complaint becomes a criminal matter.

This happened because the bill provides that a false complaint becomes a criminal matter only if a formal review of the complaints takes place—and the police decide whether to conduct the review.

In addition, the measure now includes elected law-enforcement officials in its provisions. An earlier version of the measure exempted political officials, but the final version removed that section, which means that filing a complaint against an elected official could become a criminal offense.

“That takes us back to the Alien and Sedition Acts of 1798,” Siegel said. Under those acts, people could be—and were—prosecuted and imprisoned for criticizing politicians. (There’s also a more basic sentence structure problem with the new law—the phrase “knowing such report to be false” appears, but because of the tortured 57-word sentence in which it is located, it refers to the police instead of a complainant.)

Siegel said that legislators enact such laws as favors for groups such as the police, but he said the cost to the taxpayers is tremendous—the state has to defend the laws and then pay court costs and attorney fees.

Sen. Care sighed in agreement. “The endorsements from police organizations and the [campaign] contributions are just too hard for many lawmakers to resist,” he said.

Care, like many lawmakers who voted against such bills, is considering not running for reelection.