On the social media site X, formerly known as Twitter, Assemblywoman Heidi Kasama (R-Las Vegas) announced that she submitted a list of bill draft requests to, among other things, require the Legislature to follow the state’s open meeting laws and respond to public records requests. Later that day, during the most recent IndyTalks in Reno, Gov. Joe Lombardo announced his support for Kasama’s measures to overcome a “culture of corruption” he and his allies believe permeate the Legislature.
I’m not going to opine much about whether a “culture of corruption” exists in the Legislature because the operating assumption of Nevada’s founders was that legislators were corrupt (or, at best, easily corruptible) by default. The entire point of having a part-time legislature, as Nevada does, is to cynically harness the enlightened self-interest of legislators by incentivizing them to benefit their careers as doctors, lawyers, real estate brokers and so on rather than their careers as term-limited and lightly paid legislators.
Whether it’s actually possible to reach the common good by averaging out every legislator’s unbridled instinct for corruption and self-dealing is, of course, open to debate. With the benefit of 160 years of hindsight, it feels a little naive to believe the best way to produce broadly beneficial public policy is by finding 63 people who can afford to take four months off from work and anointing them as a co-equal branch of government. This holds doubly true when, once each legislator goes home and goes back to work, it suddenly becomes obvious that several of their employers directly benefited from the legislation they passed.
That said, another important justification for a part-time legislature is that legislators, in theory, are more likely to legislate with a lighter hand if they have to professionally live with the consequences of the laws they pass once they’re out of office.
This part, at least, seems to largely hold true. Nevada has historically prided itself on its regulatorily light touch, at least for those looking to make a quick buck (whether this light touch extends to the rest of the citizenry is, however, also open to debate). A pair of notable exceptions that help prove the rule are the state’s open meeting and public records laws — both of which the Legislature has conveniently exempted itself from.
The Open Meeting Law Manual, which every public body in the state except the Legislature is required to follow, is 119 pages long. Within those pages, along with their supporting statutory language, is a voluminous list of requirements for every public body to adhere to before, during and after they conduct a meeting, all of which are meant to ensure that the deliberations and actions of public bodies are taken and conducted openly.
Sounds noble enough.
Most of the requirements, to be clear, are quite conceptually sensible. Certainly nobody would object to requiring public bodies to allow the public to attend their meetings. Requiring public bodies to prepare a written agenda before a meeting, one that includes the time, place, location and agenda items to be discussed, is eminently sensible. Ensuring the written agenda is posted in multiple locations (“not less than three other separate, prominent places within the jurisdiction of the public body”) seems a little excessive now that internet access is seemingly ubiquitous — but, as this very publication has covered, not everyone can afford internet access.
Once the requirements are encoded in the letter of law, however, complications quickly arise.
Take the statutory definition of “meeting,” for example. It includes “the gathering of members of a public body at which a quorum is present, whether in person, by use of a remote technology system or by means of electronic communication, to deliberate toward a decision or to take action.” NRS 241.016, meanwhile, further adds that “exceptions provided to this chapter, and electronic communication, must not be used to circumvent the spirit or letter of this chapter to deliberate or act, outside of an open and public meeting.”
Based on the language above, if a public official sends an email (an “electronic communication”) to a majority of their colleagues, did he or she just violate the state’s open meeting law by holding a “meeting” without prior written notice? What if he or she sent an email to a minority of their colleagues but a colleague forwarded the email to an official who didn’t receive the initial email? What if an official sent an email to one colleague, who then sent a related email to another colleague, who then sent a related email to an entirely different colleague and so on?
Yes, those are all likely violations of the state’s open meeting law. Most of them, in fact, are textbook examples of serial communications, or “walking quorums,” which the Open Meeting Law Manual specifically cautions against.
The reason “walking quorums” are prohibited is because open meeting law is expressly designed to require public bodies to deliberate — to discuss and consider — solely in public meetings. In theory, each member of a public body is supposed to sit, listen to public comment (this is legally required), discuss each issue with their colleagues in the public meeting, then return to the next meeting and surprise everyone with their vote.
In practice, what actually happens is a prominent public official will tell someone else — for example, a lobbyist or a journalist — how he or she might plan to vote. That announcement will then get published somewhere where other colleagues will know where to find it. Those colleagues, in turn, will read the announcement and realize which way the winds are blowing.
Or, alternatively, a staffer will meet one official. Then, they’ll schedule a meeting with another official and provide the same information they provided to the previous official. Then, they’ll schedule yet another meeting with yet another official, and so on. This, per Dewey v. Redevelopment Agency of Reno, is probably legal, even if it sounds like a duplicitous waste of government employee hours.
Or, alternatively, staff are simply given wide latitude to make independent decisions without the public body’s direct involvement. This may go a long way toward explaining why it’s so difficult to hold superintendents accountable — it’s well nigh impossible for elected officials to hold senior staff accountable when they’re not allowed to compare notes with each other.
In short, the state’s open meeting law doesn’t result in more transparent deliberation. Instead, it empowers a series of unaccountable and unelected middlemen — staffers, lobbyists and the like — to communicate and coordinate on behalf of the officials we would otherwise expect to jointly make informed decisions on our behalf.
As for the state’s public records laws, the problem isn’t that it’s extremely challenging for public agencies to meet the law’s requirements — it’s that they frequently don’t bother to try.
Take, for example, The Nevada Independent’s difficulties last December in receiving records following North Las Vegas’ announcement to hold a special election for a property tax that month. Or take the American Civil Liberties Union of Nevada’s successful legal challenge against the Clark County School District after the school district refused to furnish police body camera footage upon request.
Even now, the school district still refuses to reimburse the ACLU for the attorney fees incurred due to its refusal to follow the state’s public records law.
Requiring the Legislature to eat its own dogfood — to live by the same laws it requires every other public body in the state to live by — would force it and its staff to live firsthand with the consequences of the laws it drafted to govern the deliberations and actions of public bodies. Given enough time and practice, the Legislature might be compelled to shave some of the more unworkable rough edges off — and provide teeth to the portions of both laws it quickly finds itself capable of measuring up to.
Failing that, if past experience is any guide, the Legislature might just lighten the hand of regulation it applies to every other public body in the state so it can continue to function as it always has.
David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky @davidcolborne.bsky.social, on Threads @davidcolbornenv or email him at [email protected].
