Law requires a clear call for public comments

Because government exists to serve the people - and not the other way around - government and its actions should be transparent and open to citizens. While you won't find any elected or government officials publicly disagreeing with this statement, some officials do everything they can to avoid the sunlight of transparency and the input of citizens when they think no one's looking.

Those are the stakes in the case brought by the Nevada Policy Research Institute's Center for Justice and Constitutional Litigation against the Clark County School District and the Clark County Regional Debt Management Commission, which the Nevada Supreme Court will review Wednesday.

Nevada's open meeting law requires all governmental bodies to take public comment before voting on agenda items - either at the beginning of the meeting or before the item goes to a vote.

On June 7, 2012, the Debt Management Commission, chaired by Clark County Commissioner Susan Brager, held a public meeting during which it approved a $669 million property-tax-increase proposal to be put on the general election ballot in November. Karen Gray, an NPRI reporter and Clark County resident and taxpayer, attended that meeting to provide comment and gather information.

After 74 minutes of lively discussion among the commissioners, Brager asked the commissioners, "Any other questions? Do you have something? We don't want anyone to be stifled." She then called for a vote without offering a public comment period.

This violation was so blatant that Gray went up to Mark Wood, the Debt Management Commission's lawyer, directly after the meeting and told him the commission didn't provide a chance for public comment before the vote.

Even though this violation of the law was brought to its attention minutes after the meeting, the Debt Management Commission did nothing to fix it.

The commissioners were content with breaking the law, content to shut out the voices of citizens. Content, at least, until NPRI called them on it and filed an opening meeting law violation complaint earlier this month.

Now the Debt Management Commission and school district officials are taking action. But instead of acknowledging that they broke the law, they're striking back at NPRI for defending Nevada's open meeting law. And guess who's paying for their team of lawyers? You, the taxpayer.

These government officials are now claiming that Brager turned and made eye contact with Gray when she said, "Any other questions? Do you have something? We don't want anyone to be stifled."

Brager would have had to turn, because unlike a County Commission meeting, the Debt Management Commission's meeting was held in a small conference room, and Gray was seated directly behind Brager.

Thus we're presented with two possible versions of what took place.

In one, Brager did not make eye contact with Gray until after the vote was taken, as Gray has stated in a sworn affidavit, and Brager's comments - "Any other questions? Do you have something? We don't want anyone to be stifled." - were addressed to the commissioners, just as one would expect at the end of a lively discussion. In this case, Brager clearly did not offer a chance for public comment, and the Debt Management Commission broke the law.

Alternatively, let's assume for the sake of argument that Brager did look at Gray and ask, "Any other questions? Do you have something? We don't want anyone to be stifled."

Did that meet the standard for offering public comment?

No, and here's why. It is the obligation of the chair to clearly, verbally, move from one agenda item - discussion among the commissioners - to the next agenda item, public comment. It is not the obligation of an audience member to try to deduce when a wink and a nod, even if at the audience, is an invitation for public comment or whether a committee chair is just looking around.

This idea of obligation is an important one in our system of government. For example, in a criminal case, the prosecutor has the burden of proof - he must prove the defendant is guilty beyond a reasonable doubt.

In a similar way, a committee chair has a legal obligation to verbally open the public-comment period. Just as a criminal defendant doesn't have the burden to prove himself innocent, an audience member at a public meeting shouldn't bear the burden of guessing when public comment time is available. It is the duty of elected officials to be clear.

And when, as in this civil case, elected officials aren't clear, the law is clear: "The action of any public body taken in violation of any provision of [the open meeting law] is void."

Government exists to serve the people, but far too often, government officials need cases like this one to remind them of that fact.

Andy Matthews is president of the Nevada Policy Research Institute. For more visit http://npri.org/.