Masto encouraging blatant breaches of open meeting law

On the record, Nevada Attorney General Catherine Cortez Masto is, of course, emphatically in favor of government officials obeying the state's open meeting law.

"What it comes to," she said in a recent interview, "is ensuring that the public has access to the information that their elected leaders are deliberating about within their communities. That's the goal here. That's the intent of the open meeting law."

Actually, the principles involved are even broader.

"All political power is inherent in the people," says the Nevada Constitution. "Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it."

In essence, Nevada's open meeting law was enacted to ensure that -- notwithstanding the ever-expanding egos of public officials -- Nevada's public bodies are kept open, accountable and subject to the people they serve.

This is why the attorney general of the state of Nevada is charged with the investigation, enforcement and criminal prosecution of these laws.

Yet citizens are increasingly confronted by arrogant, out-of-control officials, while the AG's office -- gazing benignly out upon the carnage -- merely blinks.

Worksheets released this month by Masto's office reveal that between 2007 and 2009 it exhausted one or both statutes of limitations for enforcement in 77 percent of the 89 complaints filed within one month of an alleged violation. Between 2007 and 2009, the percentage of violations grew from 25 percent in 2007 to 43 percent in 2008 and 2009.

Under Nevada law, members of the public have a clear right to address any subject matter within a public body's jurisdiction, control or advisory power during the general public comment periods that are mandated by state open-meeting laws.

But on June 15, the Henderson City Council -- one of Nevada's chronic open-meeting law violators -- sought to block members of the public from speaking about a published agenda item.

That Henderson's mayor and city manager would casually attempt to brush off members of the public who came to speak on a controversial city proposal exemplifies the smug climate regarding public participation in their governments that is rapidly spreading throughout Nevada's public bodies.

For the Henderson City Council, however, such a dismissive attitude should come as no surprise. This same body outlawed teenage dance halls in 2008 without properly noticing the public. It also appointed a now-sitting councilwoman through an illegal secret ballot process -- for which it received, from the office of Masto, little more than a wink and nod.

Indeed, it appears that implicit nonfeasance by the AG's office is an important contributing factor behind the disdain Henderson's government regularly shows for its citizens.

Today, this same public body continues to disenfranchise the public in multiple ways: engaging in unagendized business during its meetings' public comment periods; collaborating with other local public bodies in a plan specifically devised to circumvent the open meeting law so that officials can discuss public issues in private; and, as a matter of normal operation, using closed-door briefings to receive its deliberative information and materials for items under consideration.

Another Nevada public body regularly eager to disenfranchise the public is the Clark County School District Board of Trustees. And it, too, has received solicitous treatment by the office of Masto.

In late 2008, the district -- after placing an important item on the School Board agenda -- refused to release informational material on that same item that Superintendent Walt Rulffes had shared with trustees.

This directly disregarded the open meeting law, which specifically mandates that members of the public receive, if they request, the same informational materials on agenda items as do board members.

What was the response of Masto's office when the Las Vegas Review-Journal filed an open meeting law complaint? To ignore the explicit language of the open meeting statutes and, arguably, nullify one of the law's central provisions. AG staff injected public records case law into the open meeting law, effecting an exception that grants executive privilege for "deliberative and predecisional" public meeting documents. Unfortunately for citizens, nearly all informational materials due them under the open meeting law are deliberative and predecisional.

However, it is not clear that Masto actually understands what her office perpetrated. Interviewed on the subject, she acknowledged she is "not completely familiar with" this landmark opinion by her staff.

Other infringements by the Clark County School Board include routinely misinforming public speakers that the law bars trustees from responding to them, dodging public discussions with constituents by removing its "response to public comment" period from meeting agendas, and removing from its governing policies all references of the board's ability to respond to general comment public speakers.

During the interview, Masto was asked whether lax enforcement by her office might be a factor in the increasingly frequent non-compliance surfacing around the state. Her lengthy answer, however, skirted that issue. She preferred, instead, to suggest that modifications to the open meeting law might be needed.

Nevada's open meeting law is remarkably sound and quite clear. What is missing is enforcement.

Masto has unilaterally expanded the discretion of her office to the extent that the law, under her tenure, is now at serious risk of becoming a dead letter.

Karen Gray is an education researcher at the Nevada Policy Research Institute. For more visit http://npri.org/.