The governor may well be within his legal rights to withhold budget information, but that doesn't make it right.
A sympathetic judge might be swayed by the contention that state agency plans to trim back the increases in their budgets -- due to flagging tax revenues -- are "working documents" not subject to Nevada's public records law. But it can also be convincingly argued that transmittal of the documents from the agencies to Gov. Jim Gibbons' office constitutes the creation of a public record.
The governor told the various state agency executives to prepare recommendations for trimming back anticipated spending by $285 million, primarily because sales tax revenue has fallen well below the forecast of the Economic Forum. This is primarily due to a 50 percent drop in home sales and the ancillary decline in the sale of home furnishings, appliances and the like. Automobile sales are off, too. The governor exempted secondary education, prisons and some juvenile welfare budgets from this exercise in frugality.
The stance by Gibbons' attorney, Josh Hicks, that the recommendations are privileged because they are part of some vague "deliberative process" actually flies in the face of the rationale for having public records and open meeting laws in the first place. These laws exist to open the deliberative process to the voters and taxpayers so they can see for themselves not only what the outcome is, but how and why it was reached.
In fact, the preamble to the state open meeting law spells it out in unequivocal language: "In enacting this chapter, the Legislature finds and declares that all public bodies exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly."
Legislative Counsel Brenda Erdoes correctly reasons that the recommendations handed over to the governor are not deliberative, but simply "factual information" and, therefore, public records.
OK, so let's give the governor and his lawyers a pass and say they can prevail with the legal argument that these plans for reining back budgeted spending levels are merely working documents -- drafts, if you will. That means they will become public records only upon being implemented, probably in January, if at all, depending on whether tax revenues pick up during the holiday season.
After all, the gaming tax revenue for September surprisingly bounced back after a period of sluggishness, largely on the strength sports bettors taking a bath on college football upsets. Such are the exigencies taxes.
But the rationale offered by the governor's budget director, Andrew Clinger, was outright timorous.
"We need the administrators and directors of state departments to make recommendations without fear of outside pressure," Clinger said. "They know better than anyone else what it takes to run their programs."
Outside pressure? From whom? Those ignorant, meddling taxpayers who have no idea how hard it is to ratchet up spending by double-digits every two years?
Outside pressure is just what is called for.
After Gov. Gibbons met with Clark County Commission Chairman Rory Reid and other elected officials, the governor committed to preserving the dollars budgeted for the county to take over from the state child welfare services. Whether that is what Gibbons intended all along or whether he relented after hearing persuasive arguments is irrelevant. They reached an understanding by talking it out. Similar discussions about all the state's budgeting plans can only be productive, even if there are hurt feelings and acrimony. Governance is a blood sport, and those too timid to duke it out need not apply.
Just because you can argue that the law does not require you to make certain information available to the public, does not mean that you must not. You can do the right thing of your own accord.
Gov. Gibbons, open up the budget plans to the legislators and the public, then hold your ground and defend your position against all comers, relenting only when truly swayed by a countervailing argument. That's the right thing to do.
Thomas Mitchell is editor of the Review-Journal. He writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at firstname.lastname@example.org.