Vote? What vote?
The Sparks City Council gave away its power to approve a lawsuit settlement
Sparks City Attorney Chet Adams says that, contrary to news reports, it was not the Sparks City Council that approved the Lazy 8 casino, it was him.
Adams said there was never a meeting of the City Council at which a council vote approved the Lazy 8 casino.
The Nevada attorney general’s office has threatened to go to court to void a supposed Sept. 1 vote by the Sparks City Council approving the Lazy 8. The casino project is promoted by powerful lobbyist Harvey Whittemore.
Adams says the City Council handed its power off to him to approve a lawsuit settlement that included approval of the casino in its provisions.
“First, no ‘vote’ was taken to settle the lawsuit during my consultation with my clients on Sept. 1, 2006,” Adams said in an e-mail message. “I had already secured authorization to settle the lawsuit on Tuesday, August 29, 2006. I had secured this authorization through private conversations with my clients and did not disclose to any single client the opinions or views of my other clients.”
But legal experts question whether an elected officer can assume the powers of an elected body, particularly when one of them is legislative and the other executive.
“I’ve never seen it done that way,” said former deputy attorney general Ernie Adler. “I mean, when I was in the attorney general’s office in the ‘80s and … throughout the ‘90s, and I think it’s still the same way today, we had a certain protocol on settlement of lawsuits that we believed is what you did when you had a settlement. I mean, that the final settlement was always approved by the Board of Examiners.” The Board of Examiners is composed of the governor, secretary of state and attorney general.
Most attorneys who have served as counsel to public agencies—in attorney general, district attorney, and city attorney offices—agree with Adler that only governing boards, not their public counsel, can approve lawsuit settlements. They contend that Adams could reach a settlement, but he could not approve one. That’s the City Council’s job, they say.
As a state senator, Adler voted against a measure that would have banned the confidential sealing of lawsuit settlements from the public. He cast that vote because, he said at the time, the law already required disclosure because such settlements could only be approved by governing bodies like county commissions, and that could only be done in open session. When the Sparks city attorney’s action came up last week, Adler questioned whether the Council can give away its powers.
“I represent one public board, and I would not do it that way,” he said. “But that’s just me speaking as an attorney—I mean, I would do it the way the attorney general’s office generally does it, which is, if you have a settlement, you type up a memorandum as to what the terms of the settlement are, and you post it, and you present it in an open meeting. I mean, that’s always the way we did it.”
Another part of City Attorney Adams’ statement says, “The subsequent attorney/client consultation session of September 1, 2006 was held at the request of one city council member to hopefully obtain unanimous consent to my authority to settle the lawsuit. Unanimous consent, however, was not needed because a majority of the council members had already authorized me to settle the lawsuit.”
However, there are substantial questions about whether the Council could authorize such an action by Adams. The Council can certainly approve his seeking and reaching a settlement, but actually settling, according to most attorneys with expertise in the field, can be done only by the City Council. Indeed, if Adams is correct that no vote was taken and the other attorneys are correct that only the Council can approve a lawsuit settlement, then the Lazy 8 was never approved in the first place.
Adams continued, “Nevertheless, I believed it ethically prudent, in this particular instance anyway, to secure written authorization from my clients to settle the lawsuit. The purpose of the September attorney/client session was to once again explain the lawsuit, potential settlement options and receive written authorization from my clients to settle the lawsuit. My clients were given the option of either giving me written authority or not giving me written authority to settle the lawsuit. The written authorization provided to me by my clients was for ethical purposes and did not constitute a ‘vote’ to settle the lawsuit because I had previously been authorized to settle the lawsuit. Similarly, the attorney/client session of September 1, 2006, did not constitute official city action because I had previously been given the authority to settle. If anything, it was me who took the action.”
Adams’ belief that this process does not represent a vote is on shaky legal ground. Nothing in the law requires a vote to be conducted with a show of hands or with “ayes” and “nayes.” Members of a governing board can certainly approve a settlement in writing.
Language is important in this dispute.
Adams avoids the use of the term meeting to describe what happened on Sept. 1. Using a different term for a meeting has previously been a fruitful strategy. In 1995, Nevada Attorney General Frankie Sue Del Papa issued an opinion that said a detailed agenda—normally required under the open meeting law—is not required if a meeting is called something else—a “goal-setting” session, in that case. That dispute involved a Reno City Council meeting held in California without a specific agenda.
Adams calls the Sept. 1 session an “attorney/client consultation session.” However, in the 1987 case McKay v. County Commissioners, the Nevada Supreme Court ruled that attorney/client conferences cannot be conducted in closed sessions when they involve public bodies and panels. (In another Nevada case, a federal judge ruled that closed meetings could be used for such conferences, but that case involved an interstate agency, the Tahoe Regional Planning Agency.)
Adams’ use of the term “my clients” to describe the members of the City Council is also designed to strengthen his position in any open meeting complaint. It lets him argue that attorney/client confidentiality could have been compromised by an open meeting. However, the Nevada Supreme Court in McKay further specifically ruled that attorney/client privilege is not betrayed by compliance with the open meeting law. The court decision came after the Nevada Legislature refused to amend the open meeting law to allow an exception for attorney/client consultations.
When Adams says he “did not disclose to any single client the opinions or views of my other clients” when he gained his original authorization to negotiate, he may be trying to head off charges that he was engaged in a serial meeting. Such meetings involve members of a public body who meet in separate sessions, usually with staff as go-betweens and with no quorum in any one session.
A closed session on the Lazy 8 would have provided Adams with something akin to a governor’s control over a special session of the legislature. In that case, the governor controls the agenda. In a closed session, Adams could frame discussion as an issue of litigation instead of issues of planning or zoning, and members of the public would not be present to prevent it.
Last week in an interview with Randy Randazzo of the Reno Gazette-Journal, City Councilmember Ron Schmitt disputed Adams’ account of the Sept. 1 session, saying that he—Schmitt—questioned the legal propriety of the session while it was going on. Schmitt said he was medicated while recovering from surgery and has no memory of approving anything except continued negotiations with Lazy 8 representatives.