Las Vegas Sun

August 20, 2019

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By law, public not entitled to hear dealings of Legislature

Sun Coverage

Because its members are elected by the voting public, it might appear to be a safe assumption that the Legislature is a public body.

But the Legislature declared itself as something other than a “public body” in a 1977 law, exempting itself from requirements to make decisions and reach agreements in public.

The Nevada Constitution allows the Legislature to convene in regular session for 120 days every two years, or if the governor calls a special session. Unanswered is the question of whether the Legislature is subject to open meeting laws when it’s not in session. The Legislature says it is not, though its staff tries to comply with the law, and the attorney general’s office, which enforces the open meeting law, said it would need a complaint to investigate the matter further.

The academic question could take on real-world significance as calls grow for a special session to pass congressional and legislative maps. The Legislature adjourned without accomplishing its every-10-years task of redrawing such boundaries.

With the Legislature removed from the burden of conducting open meetings, as it requires of other governments in the state, lawmakers could meet in private, come to an agreement, and then come in for public input and a ceremonial vote.

The Nevada open meeting law, NRS 241.010, begins with these noble words: “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.”

A few paragraphs later, as if in a muttered aside, the statute adds: “ ‘Public body’ does not include the Legislature of the State of Nevada.”

Barry Smith, executive director of the Nevada Press Association, said the Legislature commonly points to its 120-day deadline when explaining why it can hold “core group” meetings in private and is exempt from the law. With redistricting, “they lose the excuse.”

“I’d hope they realize this of is the utmost importance to a lot of people — who represents them, who is elected, who runs as candidates,” Smith said. “Whether they are technically covered or exempt from the open meeting law, there’s really no reason not to comply with open meeting law” because redistricting is not under an immediate deadline.

He said going behind closed doors “increases the public’s mistrust of elected officials. What do they have to say to each other that they won’t tell us? What do they have to say in private that they can’t in public?”

Former Assemblyman Bernie Anderson on Tuesday became the latest to suggest such a process, arguing that the three special hearing masters appointed by a district court judge to draw maps are unconstitutional.

“Redistricting is clearly the responsibility of the Legislature, by the constitution,” Anderson told the committee. He said Gov. Brian Sandoval should call a special session after Democratic and Republican lawmakers reach an agreement on maps.

He defended private meetings as inevitable, particularly when it comes to redistricting.

“Nothing is more political than this,” he said. He was skeptical that elected local government officials conduct all their discussions in public. “If you don’t think those are backrooms deals, you’re not a keen observer of the political process,” he said.

Sandoval does not appear inclined to call a special session. He said Tuesday that he has confidence in the judicial process. But a source close to Sandoval said the governor would consider a special session if the court process stalls or falls apart.

Redistricting is required by the constitution every 10 years, after each U.S. Census. The Legislature, controlled by Democrats, passed two sets of maps. Sandoval vetoed both.

Rather than make a concerted effort during the 120-day Legislative session to hammer it out, Democrats and Republicans seemed content to let the courts settle the political border disputes.

But the Nevada Supreme Court has asked pointed questions of the lower court judge, asking if the courts can even decide this or if it should, in fact, be the job of the Legislature.

Senate Majority Leader Steven Horsford called for Republicans to negotiate. He said Democrats are willing to talk.

“I’ve always said we’re willing to work with Republicans to find a compromise,” he said. “Republicans in the Legislature were unwilling to reach any agreements, hanging their objections on the Voting Rights Act.”

He said if negotiations continue, he’s confident that lawmakers can work out maps that could be passed in a special session or agreed to by the court. He said a special session would include a “public and open debate.”

During the session, he said, the Legislature took “hundreds of hours of public frank discussion, in Carson City and every corner of the state of Nevada.”

When asked about the possibility of another round of negotiations between lawmakers, Sen. James Settelmeyer, R-Minden, asked rhetorically, “How well did it work before?” The special masters, appointed by District Court Judge Todd Russell, could provide a starting point, Settelmeyer said. “We felt the majority was not listening to the minority viewpoint,” he said.

Nevada Attorney General Catherine Cortez Masto is in charge of enforcing the state’s open meeting law. She would not comment for this story, but in a statement, said the office “cannot issue an opinion on facts we haven’t investigated.” If a member of the public believes there’s an open meeting law violation, he or she can file a complaint with her office.

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