We close this annual observance of Sunshine Week with a timely example of why it’s so badly needed, especially here in Nevada, thanks to the Legislative Counsel Bureau.
The bureau includes the lawyers who advise the Nevada Legislature, doing research, writing bills (even bills their own chief admits are facially unconstitutional on occasion) and assisting lawmakers in other ways. The LCB is known as a jealous guard of legislative prerogative, even to the point of absurdity.
But when Associated Press reporter Michelle Rindels filed a public records request for what should be obviously and manifestly open information — emails sent via official, taxpayer-funded accounts and calendars of official meetings attended by top legislative leaders — she was refused in a particularly galling way: A 28-page letter sent over the signature of Legislative Counsel Brenda Erdoes, essentially arguing the Legislature is fully beyond the reach of virtually all public scrutiny.
According to Ms. Erdoes, the Nevada Constitution grants the Legislature “exclusive and paramount powers” to determine the rules for its proceedings, including rules regarding the release of information. And that power cannot be truncated, even by laws passed by the Legislature itself.
Those laws nevertheless apply with full force to local governments and the executive branch; courts have forced both to release records, including emails. But Ms. Erdoes argues the Legislature and the LCB should be entirely exempt. In other words, the lowliest clerk in the LCB enjoys more legal protection than the governor of Nevada?!
Ms. Erdoes goes on to argue that the Legislature is insulated from scrutiny by legal principles that protect the gathering of information for the purposes of lawmaking, because allowing public scrutiny of the same would tend to interfere with the ability of lawmakers to get frank and honest opinions when considering legislation. “It would also allow improper inquiries into the motivations of legislators regarding the preparation, introduction, consideration, approval or disapproval of legislative matters,” Ms. Erdoes wrote. “Such inquires into the motivations of legislators are improper because they have the potential to harass, intimidate and suppress legislators in the performance of their core legislative functions, which is the evil that legislative privilege and immunity was intended to prevent.”
Yes, it could certainly be harassing for the public to learn, say, that a group of lawmakers had dinner with officials from a company seeking special tax breaks, just a day or so before a bill containing those tax breaks was introduced! Why, it might actually suppress a legislator from the core legislative function of eating, and free him from the immunity of having to explain himself to the people who elected him to office!
In fact, like all attempts to raise a cloak of secrecy around what should be an open and public process, the rules primarily function to prevent lawmakers from embarrassment, which is not a constitutional prerogative that any of us enjoy, least of all those whom we used to call public servants.
Among the most delicious of arguments, however, is Ms. Erdoes’ contention that the Legislature itself does not fall within the definition of “governmental entity” for the purposes of the Public Records Law! Although that definition says “an elected or appointed officer of this state or a political subdivision of this state” is a governmental entity, the Legislature itself is mysteriously missing from the enumerated list, and thus it must be excluded from the definition. And if it’s not a governmental entity, its records are, naturally, secret.
Then again, if the Legislature is not a governmental entity, the LCB probably shouldn’t be getting the $136.4 million allocated in the current budget, should it?
Ms. Erdoes also claims the materials sought by the AP are protected by law from disclosure, under a little-noticed bill passed in the waning hours of the 2015 Legislature, which greatly expands the secrecy afforded the LCB, as well as explicitly states the privileges and immunities that Ms. Erdoes contends belong to the Legislature. Assembly Bill 496 passed without a single dissenting vote from a member of either party.
Oh, and P.S., there’s the attorney-client privilege, the work-product privilege and the deliberative-process privilege. And if the AP or anybody else wants to challenge it, let them do so in the sure and certain knowledge that they cannot recover attorney’s fees or court costs for doing so! (To be sure, any potential litigant would be underwriting the entire case, his own out-of-pocket expenses, and the LCB’s defense via tax dollars.)
What’s truly shocking about Ms. Erdoes’ letter is its scope: Not only does she argue that nearly everything the Legislature does can be done in secret, but that it must be done in secret for the process to work properly. This is exactly backwards; the public has not only the right but the obligation to inquire — rudely, at times — into the inner workings of its government. In that sense, elected officials should not enjoy more privacy, privileges or immunity than regular citizens, but less. They are not royals cloistered in a distant castle, beyond the prying eyes of the press or the people, no matter how hard their lawyers try to turn the legislative building into the Kremlin of the Sierras.
The state Constitution makes clear (in Article I, Section 2) that “all political power is inherent in the people.” We delegate that power to them, for a limited time and under carefully guarded conditions. Sunshine Week is a perfect time to remind everyone — especially at the LCB — of that important political truth.