Open and shut

Whatever record the Nevada Legislature crafted on openness issues this year was undercut at the last minute.

In the Senate on the last day of the 2011 legislative session, utility lobbyists slipped an amendment into Assemblymember David Bobzien’s Assembly Bill 416 updating state laws on renewable energy sources. The 25-page amendment filled with 12,493 words of dense text, including 29 that said the bill “makes certain information relating to a contract lease or agreement between a utility and another person for the purchase of power confidential and prohibits the disclosure of such information.”

In less stilted language, this means that the bill keeps ratepayers from knowing any of the details of power-purchase agreements between utilities and renewable-power developers. The Public Utilities Commission would be bound by the language from releasing any of that information.

Amazingly, with only hours or even minutes (the legislative record gives the date but not the time the amendment was introduced) to understand the lengthy and complex amendment, the Senate and Assembly still approved it and the bill.

When the confidentiality language was discovered after the legislative session ended for the year, Sen. Mike Schneider of Clark County said the amendment was the work of renewable energy producers, but later news reports said NV Energy (Sierra Pacific) lobbyists were responsible.

Gov. Brian Sandoval ended up vetoing the measure, though not specifically because of the confidentiality clause. His veto message said, “Nevada ratepayers [would be] forced to finance the transmission of renewable energy to out of state consumers without the opportunity to comment beforehand. Moreover, there is no provision in the bill to allow ratepayers, in the event any investment shouldered by them succeeds, to participate in that success through reduced rates.”

Bobzien was not available for comment.

Another bill, A.B. 59, originated with the Nevada attorney general’s office in response to a couple of Nevada Supreme Court cases that seemed vaguely to suggest that “quasi-judicial” bodies in Nevada were exempt from the open meeting law.

Though the term has not been defined in statutes until now, a number of panels—such as parole, ethics and utility—have generally been regarded as quasi-judicial, as have discipline hearings for state employees.

A task force set up by Attorney General Catherine Cortez Masto met over a period of months and raised the possibility of legislation to close the window that might allow quasi-judicial proceedings to escape open meeting requirements. The result was A.B. 59, which addressed a number of open meeting issues, the quasi-judicial matter among them.

It was uncertain whether the bill was providing a solution without a problem. At an Assembly hearing, assistant attorney general Keith Munro referred to the Nevada Supreme Court case Stockmeir v. Nevada. “In this case, the Supreme Court held that quasi-judicial proceedings were exempt from the open meeting law,” Munro told the legislators. But the court’s majority opinion did not say that. That suggestion appeared in a concurring opinion by Justice James Hardesty.

Though the court rulings may have suggested that quasi-judicial bodies are exempt from the open meeting law, state law argues otherwise. The statute governing the Nevada Parole Board reads in part, “All meetings are quasi-judicial and must be open to the public.”

When A.B. 59 was introduced, veteran open government advocate Andrea Engleman read the bill and then attended the Assembly hearing where Munro testified. At that hearing, he was questioned closely about who would be affected by the law. One legislator brought up homeowners associations. Another asked about local government bodies. Munro was not able to answer their questions with certainty. After considerable discussion, Assemblymember Teresa Benitez-Thompson said, “When I look at this language, I am still not sure what bodies it applies to.” Munro said that perhaps a definition of quasi-judicial bodies could be added to the bill.

One of the concerns of Engleman and Hardesty was that any public body that installed due process provisions in its operations could be considered quasi-judicial and therefore exempt from the open meeting law. Hardesty named panels like the Nevada Interscholastic Association, Board of Architecture, Board of Dental Examiners, county planning associations and others that could fall into this category.

In one of those quirks of timing that often affect policymaking, a dispute in Carson City local government then illustrated the problem. Some residents of the capital were unhappy with the way a justice of the peace was appointed by the city Board of Supervisors, which set up a separate panel that seemed to operate out of the public eye. Carson’s district attorney, Neal Rombardo, reportedly said selecting a justice of the peace—who in Nevada does not have to be an attorney—does not require open meetings because the appointment is a judicial selection process.

That gave Engleman a bad example to point at.

“So I immediately could see that we would have public bodies all over the state saying, ‘Well, we’re judicial” or ‘We’re quasi-judicial.’ I mean, here’s this blanket exemption in the law and I could just see what was going to happen. So I got the newspaper story where Neal was quoted saying this and went to John Lee.”

On learning about the problem, Lee—a Clark County senator—became worried that the state Contractors Board might avoid the open meeting law and he joined the effort.

Lee met with Munro and Engleman and they talked about changes that could be made in the bill. A definition of “quasi-judicial” was added to the measure that was more limited than the Supreme Court had prescribed.

“The language now says all quasi-judicial bodies are considered public bodies and as such they fall under the open meeting law,” Engleman said after the measure was enacted.

At another point in the session, Engleman noticed the Carson City manager lobbying on some issues that she knew had not come before the Board of Supervisors. After asking some questions, she was told there had been some phone or email polls done of a quorum of the board, and she filed an open meeting complaint over the issue.

In other legislation, a bill endorsed by the American Civil Liberties Union of Nevada, A.B. 257, will require public bodies to hold two public comment periods, at the beginning and end of each meeting. It was approved by the Legislature and signed by the governor.

A second ACLU-endorsed bill, A.B. 389, would require public bodies to make an effort to assure that both sides of issues are heard at public meetings. The bill failed to pass.