Saturday, January 17, 2004
Copyright © Las Vegas Review-Journal

Regents' turmoil far from settled

Lawsuit over meetings sends 'strong message'

Despite the filing of a lawsuit and a highly critical legal opinion against the Board of Regents, turmoil at the Community College of Southern Nevada is no closer to being resolved.

Former college President Ron Remington and former college lobbyist John Cummings won't get their jobs back anytime soon, but the regents who voted to demote them during a lengthy meeting critics say was rife with open meeting law violations will continue to keep theirs.

"The only way anything is going to change is by election or by recall," Regent Mark Alden said.

Attorney General Brian Sandoval sued the board Thursday, alleging five major violations of the open meeting law occurred during the board's closed sessions on Nov. 17 and 20. Those lengthy meetings were conducted to review a private investigator's 1,026-page report on allegations of employee misconduct at the college and resulted in the demotions of Remington and Cummings.

According to the lawsuit, the violations include:

• Deliberating and taking action in closed session.

• Deliberating and forming recommendations and a consensus during closed session.

• Discussing the character, alleged misconduct and professional competency of elected officials during closed session.

• Failing to provide adequate notice to persons under consideration for disciplinary action.

• Failing to provide an agenda that contained a clear and complete statement of the topics considered during the open and closed portions of the meetings.

A deputy attorney general familiar with open meeting law cases said the office did not have the authority in this case to sanction individual board members. Instead, the board as a whole was sued and individual regents will not be held personally liable.

"We understand they're elected officials," the deputy attorney general said, speaking on condition of anonymity. "So let's give them a strong message and hope that their behavior changes."

Richard Linstrom, the state's assistant solicitor general, said he did not want to speculate on what could occur in District Court, saying only that the office is seeking to have the court void the actions taken by regents during their Nov. 20 meeting.

The case has been assigned to District Judge Michael Cherry. The university system has 45 days to respond to the lawsuit before a court date will be assigned.

If Cherry sides with Sandoval, he could issue a court order voiding the removal of Remington and Cummings and requiring the regents to comply with the law in the future. An order of that sort would mean any future violations of the open meeting law could be considered contempt of court.

Past legal opinions and court cases involving the open meeting law generally have held that individual board members will not be sanctioned or charged with a misdemeanor unless they willfully violated the law.

That is difficult to prove, according to Kent Lauer, executive director of the Nevada Press Association.

An attorney general's office manual about the open meeting law states that "when members of a public body rely on advice of counsel, they should not be held to know that a violation occurred."

After questions arose from some regents, university system General Counsel Tom Ray consistently advised the board it was not violating the open meeting law during the two days of meetings in November.

Regents Doug Hill, Tom Kirkpatrick and Bret Whipple, who voted with the majority in the 7-6 decision to remove Remington and the 9-4 decision to demote Cummings, said that, based on Ray's advice, they did not believe they were violating the law.

"I believe our attorney's opinion, not the attorney general's," Hill said Thursday.

Lauer called Ray's advice "shoddy" and said an argument might be made that consistently bad advice from the university's counsel could make violations of the law rise to the "willful" standard.

"Some of these regents obviously need to study the law and think for themselves rather than putting so much faith in their attorneys," Lauer said.

Meanwhile, two other open meeting law complaints are being investigated by the attorney general's office.

Alden filed a complaint Dec. 1 alleging several regents discussed the eventual outcome of the Nov. 20 meeting days before it occurred.

"Regent Douglas Hill called me on at least two occasions regarding the importance of terminating both Dr. Ron Remington and Professor John Cummings of the Community College of Southern Nevada," Alden's complaint alleges. "Regent Hill told me it was very important to be on board or else."

Alden's complaint also alleges Whipple contacted him Nov. 13, four days before the meeting began, stating, "Dr. Remington was in serious trouble and most likely would not be president much longer."

Alden alleges Hill and Whipple communicated with three other regents, including Chairman Stavros Anthony, prior to the Nov. 17 meeting.

Reached by phone on Thursday and Friday, Anthony said he was too busy to talk. He did not respond further.

The other complaint, filed by Alden on Dec. 12, alleges open meeting law violations occurred during the Dec. 11 Audit Committee Meeting. At that meeting, chaired by Hill, a detailed discussion about Cummings' lobbying expenses occurred, despite objections from several regents and several warnings from Ray about the potential to violate the open meeting law if subjects were identified by name.

Tom Sargent, a spokesman for the attorney general's office, said additional action may be forthcoming from the office related to those complaints.

The next regents meeting is scheduled for Jan. 29 and 30 at the Community College of Southern Nevada's Henderson campus.

The proposed agenda includes a two-hour closed personnel session immediately before an item seeking to rescind the actions taken Nov. 20.

Remington's attorney, Kathy England, said she fears the regents will again violate the open meeting law and deny her client due process.

"All he asked for was a chance to hear the investigator's report and present his own information," England said. "They've locked him out of the process before, and I've just received notice that he may be discussed at this next meeting."

Alden said he thought it was unlikely the vote to rescind the Nov. 20 actions would be successful. He said the seven regents in the majority "are immovable." A Dec. 11 attempt to rescind the votes failed 7-6.

Regent Howard Rosenberg, who voted in the minority, said he had hoped that the board would change its position.

"Then again, I'm an eternal optimist," Rosenberg said. "I just hope that this opinion and the suit will put some pressure on the board."

If the board, in open session, decided to discuss the investigator's report and the individual actions of Remington and Cummings, it is possible the board could vote in open session to demote the two men.

But that would not negate the lawsuit, the deputy attorney general said.

"The harm's been done," the attorney said. "They can certainly try to mitigate the harm, but we are still going to go full force with this suit."

Although the open meeting law may seem arcane to the average voter or taxpayer, state Sen. Bob Coffin, D-Las Vegas, said, everyone should care about the violations noted by the attorney general.

"When you take this example alone, with Ron Remington and John Cummings, the blundering of the board could end up costing the taxpayers millions of dollars," said Coffin, who has introduced bills to strengthen the open meeting law. "There are their salaries, their lawsuits and the contract of the new president to consider."

Coffin also said that, while government has a right to operate in private for some reasons, the regents have shown they cannot be trusted to operate fairly in closed session.

"All of their decisions become suspect, and it erodes the public's trust in the institution," Coffin said.

"Public bodies serve one boss, the public," Lauer said. "The public is entitled to know how its business is being conducted."