Recently a Reno Gazette-Journal reporter named Brian Duggan posted this on a social media site: “Still don’t understand the Reno News & Review’s position on our coverage of the school board. Its members clearly broke Nevada open meeting law—twice!—and that’s somehow OK because the RGJ’s coverage was somehow ‘shallow (and) malicious’? At least one newspaper in town still thinks holding public bodies accountable is good journalism—certainly isn’t coming from our alternative weekly.”
We would have thought that our Oct. 23, 2014 cover story would have explained things for the RGJ. It certainly did for many of our readers, one of whom described it as “the rest of the story.” So we’ll walk them through it again.
From transcripts of the Nevada attorney general’s investigative interviews with school board members:
School Board member Barbara Clark: “He [school board lawyer Randy Drake] indicated it was fine to have this conversation regarding this issue.”
School board member John Mayer: “Yes, he [Drake] said this is a lawyer/client meeting.”
School board member Howard Rosenberg: “And I asked him [Drake] point blank. I said, ’Are we violating the open meeting law?’ He said, ’Absolutely not. You don’t have to worry about that. If, indeed, you’re even coming close, I’ll stop you before you get there.’ So I was relatively comfortable.”
All of these statements are uncontroverted, either by the AG or by the RGJ’s coverage.
Attorney General Catherine Cortez Masto (2013): “As early as 1981, this office has recognized that public bodies should be encouraged to rely upon advice of counsel and not be punished for doing so.”
Nevada [attorney general’s] Open Meeting Manual: “[W]hen members of a public body rely on advice of counsel, they should not be held to know that a violation occurred.”
So plainly, the board did not break the open meeting law. Why, then, did Cortez Masto pursue violations and fines? Because there was a powerful newspaper which rushed to judgment and, before knowing all the facts, demanded action against the board. Cortez Masto, already planning a U.S. Senate campaign, was too weak to stand up to the newspaper. (Our sources say her deputies urged against prosecution.) More puzzling is the role of the school board members’ personal attorneys, who had a great case yet urged their clients to accept fines.
Journalists have a habit of being self righteous about our beliefs in transparency and openness. But those values do not exist in a vacuum. For instance, we become impatient with issues of privacy and due process, yet they are legitimate. In this case, the Reno Gazette-Journal rushed to judgment, demonized school board members, and became player instead of observer. It should apologize to the board members, who carefully followed advice of public counsel.
The Gazette-Journal’s shenanigans have had a permanent consequence. Attorney General Adam Laxalt has followed Cortez Masto’s bad example in charging officials for following legal advice. Across the state, public officials no longer know whether following their lawyer’s advice will protect them, the two AGs having apparently invalidated the doctrine that officials who follow their lawyers’ advice in good faith are within the law. Courts at some point will have to sort it out, when some lawyers stand by their clients and fight instead of caving.
Thanks a bunch, Gazette-Journal. You’ve thrown the whole notion of open meetings enforcement into doubt.