Lawmakers may have left CCSD breakup open to legal action

In their haste to approve a plan to overhaul the Clark County School District, lawmakers may have exposed the final proposal to future legal challenges.

The American Civil Liberties Union of Nevada and Nevada Press Association already have raised concerns that steamrolling the plan’s approval violates state rules that offer the public enough time to review such a weighty proposal. And in a nine-page letter sent Tuesday to the Nevada attorney general’s office, the organizations also warn the regulations create an illegal exemption to the state’s robust open meeting laws, hampering public oversight of how decisions are made and taxpayer money is spent at more than 350 schools.

The plan to reorganize the nation’s fifth-largest school system could become law as early as Friday, when the 12-member Legislative Commission votes on a complex set of regulations needed to implement the reorganization by August 2017.

That’s one year earlier than required under state law, and a consultant hired to develop the plan has justified the accelerated timeline as a way to prevent opponents from railroading the effort.

“If anyone thinks the government is not responsive when we have open meeting laws on the books, imagine what would happen if they are specifically exempted from those laws,” said Tod Story, the ACLU’s executive director.

‘A GREAT RED FLAG’

Last month, a bipartisan committee of nine lawmakers unanimously endorsed a final plan to shift power and money away from the district’s central administration and grant principals more control over budget, instruction and staffing decisions. Supporters argue the proposal will reduce bureaucratic red tape and allow principals more flexibility, and resources, to meet the needs of their individual students.

Regulations to support the plan cleared a second unanimous vote from the State Board of Education last week, when the ACLU questioned the legality of a section that grants an exemption to open meeting laws for school-level teams.

Those teams, composed of parents, teachers and support staff, would influence the selection of principals and “provide assistance and advice” on the development of a budget and plan of operation for each campus.

According to the state’s open meeting law, anybody that advises or makes recommendations to a tax-supported entity must conduct their business in public. The law requires public bodies to keep written minutes of each meeting, prohibits votes in closed-door meetings and much more.

“That literally made my hair stand on end,” Superintendent Pat Skorkowsky said of the provisions during a July 1 hearing over the proposed reorganization plan.

“That brings up a great red flag for me, probably the size of this building,” he added, “because it is going to be a difficult thing to be sure that we are monitoring all 357 schools to make sure they are complying with the open meeting law.”

‘WHEN WOULD THIS STOP’

To satisfy Skorkowsky’s concern, attorneys for the Nevada Legislature included in the regulations an exemption to the open meeting law for the school teams. Now, they only must post notice of a meeting three days in advance, allow the public to attend and provide at least one period of public comment.

In their letter to the attorney general’s office, the ACLU and Nevada Press Association argue that regulations cannot trump or alter the statute that creates the blanket provisions for open meetings.

But Legislative Counsel Brenda Erdoes cited separate statutes that grant “the force of law” to regulations and allows “any provision of law” to prevail over the open meetings requirements.

In a phone interview Tuesday, Erdoes said the exemption to those provisions was meant to encourage parents to participate in the school teams. Otherwise, they would be subject to misdemeanor charges if they violated the open meetings law.

Erdoes, however, could not cite additional examples of any regulation that exempts other public bodies from that law.

Story, of the ACLU, suggested that could change soon.

“Nevada has some of the strongest open meeting laws on the books in the United States,” he said. “If this is what stands, then it creates a precedent that we have never seen before. When would this stop? What agency would not then move quickly to exempt themselves?”

SUITABLE PUBLIC REVIEW

Also in their letter, the ACLU and Nevada Press Association contested the state board’s vote last week, claiming the public only had 12 days to review a revised set of regulations for the reorganization plan.

The Nevada Department of Education posted an earlier draft of the regulations on July 26, triggering a 30-day notice before the board could take official action. Regardless, the letter states revisions made to the regulations on Aug. 16 required a second notice and reset to the 30-day waiting period.

“The breakup of the … district is an enormous undertaking that will impact the lives of millions of people from students, to teachers, to support staff and other community members,” the letter reads. “The community should have been given the opportunity to properly access the revised regulations which will be binding upon them.”

The attorney general’s office on Wednesday confirmed it received the letter and is reviewing its contents. But Deputy Attorney General Greg Ott on Sept. 1 cleared the board to vote on the revised regulations and said subsequent changes to the original document do not reset the 30-day notice.

It’s unclear what, if any, impact the ACLU and Nevada Press Association’s concerns will have on the Legislative Commission’s consideration of the regulations, which become law upon approval.

“We’re just going to monitor the situation, alert the attorney general of our concerns and then we’ll have to evaluate what we’ll do next,” said Amy Rose, legal director for the ACLU.

State Sen. Michael Roberson, R-Henderson, chairs the Legislative Commission and was not available for an interview Wednesday.

That panel meets 10 a.m. Friday at the Sawyer Building, 555 E. Washington Ave.

Contact Neal Morton at nmorton@reviewjournal.com or 702-383-0279. Find @nealtmorton on Twitter.