When elected officials don’t read the law

We were right. They were wrong. That's about all the satisfaction we'll get.

On July 13, the Review-Journal filed an open meeting law complaint with Attorney General Catherine Cortez Masto's office over the method used by the Henderson City Council on July 8 to select a replacement for Councilman Andy Hafen, who had been elected mayor.

The four council members used a series of secret, unsigned ballots to winnow the 14 candidates for the post, finally voting 4-0 for the candidate who had earned the most support on the secret ballots. No one at the meeting protested the method.

On July 21, the city attorney told the council of our complaint and informed them that, should our complaint be sustained by the attorney general, any votes by newly selected Councilwoman Debra March, in the interim, "could be in doubt." So the council signed the previously secret ballots and recertified her selection.

In a Nov. 4 opinion, Deputy Attorney General George Taylor agreed the process violated the law, but because the council took a Mulligan, everything was fine and its action did not warrant so much as a mild scolding nor even a suggestion that future missteps might result in some sort of actual, you know, punishment.

The open meeting law is no complex, obscure or cumbersome restriction on public bodies. In fact, secret balloting is clearly and definitively prohibited in the widely available but apparently little-scrutinized Open Meeting Law Manual, which is occasionally updated by the attorney general's office and available online at the AG's Web site.

"Since secret ballots defeat the accountability of public servants, the Office of the Attorney General believes they are not permitted under the Open Meeting Law," that manual states without equivocation on Page 59.

"But that does not mean all votes must be by roll call. The Open Meeting Law is satisfied if a vote is by roll call, show of hands, or any other method so that the vote of a public official is made known to the public."

In my complaint, I suggested the council's action violated the "letter and spirit of the open meeting law" because the procedure kept the public in the dark as to their representatives' assessment of the qualifications of the various candidates. Each candidate addressed the council, but there was no discussion whatsoever by the council of their merits or demerits.

Taylor wrote: "The OML (open meeting law) does not require verbal discussion or assessment of candidates under this selection process. The absence of deliberation before an action vote would normally cause concern that the public body's vote was pre-arranged out of public earshot. However, this selection process was conducted entirely in the open. No doubt, each Council member kept his own deliberations to himself and quite capably marked his ballot. The absence of deliberation during this phase of the selection process was not a violation of the OML."

Letter of the law maybe, but not the spirit.

The law states: "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."

To follow those "open deliberations" in Henderson, you'd have to be telepathic.

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This past week, we published an editorial chastising Speaker of the House Nancy Pelosi for her answer when she was asked just where in the Constitution is Congress authorized to require Americans to purchase health insurance, under penalty of law.

Pelosi incredulously responded, "Are you serious? Are you serious?" and ignored the question.

Article 1, Section 8 delineates the powers of Congress, and when confronted in 1817 with a bill that would have funded the construction of roads and canals "to render more easy and less expensive the means and provisions for the common defense," President James Madison looked at that section and vetoed the bill.

In his veto message to Congress, Madison wrote, "To refer the power in question to the clause 'to provide for common defense and general welfare' would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper."

Who are you going to trust to interpret the Constitution? Those who've not read it? Or the person who wrote it?

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press, free speech and access to public records and open meetings. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.