AG readies bid for subpoena powers over public bodies

Attorney General Catherine Cortez Masto is preparing to ask the Nevada Legislature to change the state’s open-meeting law.

A task force formed by Masto has for months been in discussions “to determine if the statutes governing the open meeting laws and the enforcement of those statutes could be improved.”

Now the group has passed two proposals, killed one recommendation and referred two more for further consideration.

The first recommendation is that the Legislature give the attorney general’s office subpoena power, allowing it to compel public bodies to produce “records and materials” in investigations over alleged violations of Nevada’s open-meeting laws.

Current law requires the attorney general to file legal action against a public body within 60 days to void a public body’s action (i.e., vote) taken in violation of the open-meeting statutes, and within 120 days to seek declaratory and injunctive relief. Thus, public bodies can — and do — manipulate the system to avoid legal action by delays that push the investigations past the statute-of-limitations deadlines.

 “What we’re looking for is the opportunity in the office to move forward with our investigation and still preserve the opportunity to bring a lawsuit without the other party having delayed that opportunity by not giving [the requested information] in a timely manner,” Masto told the task force.

However, records provided to the group by Deputy Attorney General George Taylor show that in 2009, in just five of 39 investigations did a public body take a month or longer to provide a response to the attorney general. On the basis of Taylor’s worksheet, task-force member Scott Doyle calculated that the public-body response time averages 14.4 calendar days.

In 2005, then-AG Brain Sandoval sought subpoena power with Senate Bill 6, but the legislation died in committee. Sandoval’s office, according to legislative testimony, was dealing with repeated instances of public bodies refusing to cooperate in investigations.

Testifying before the Senate Committee on Government Affairs, Deputy Attorney General Neil Rombardo told lawmakers that the AG’s office “twice requested some documents in regard to an alleged violation from a public body [and the] public body has refused to provide the needed documents and twice ignored our requests.” This was not the first instance of such public-body behavior, said Rombardo.

Yet, committee members were still reluctant.

 “This bill makes me nervous,” said Sen. Bill Raggio. “A subpoena is an invasion of privacy, and I am not convinced this rises to the level we need to give this power to the [Office of Attorney General]. There is too much abuse of subpoena power, unless it is in connection with a court or formal hearing.”

This new proposal may also face some of the other objections raised in 2005.

First, the question of checks and balances of power is still a live issue.

In 2005, a member of Masto’s current task force actually opposed what the task force is now proposing. Scott Doyle, the Douglas County district attorney at the time, argued in a letter to the Senate Committee on Government Affairs that nowhere in Nevada law is the AG given unchecked subpoena power:

…[T]he other subpoena powers referenced in the bill’s digest involve administrative programs in which the Attorney General serves as the prosecutor enforcing the administrative program’s regulatory scheme in conjunction with another state officer who has full regulatory responsibility for the programs…None of the programs just cited give subpoena power to the exclusive public prosecutor without the checks and balance of having another officer charged with regulatory responsibility reviewing the propriety of the complaint-handling and enforcement process. (Emphasis added.)

Also likely to be challenged is whether a need exists for subpoena power. For the most part, the records and materials sought by the AG in open-meeting-law investigations are public records and already available to the AG’s office through Nevada’s open-meeting statutes or public-records laws.

Nevada Revised Statute 241.035 already mandates that public-body meeting minutes and audio recordings, whether from open or closed meetings, must be made available to the attorney general. For other records not encompassed in NRS 241.035, the records would be accessible through Nevada’s public-records statutes and the common-law balancing test established in Donrey of Nevada v. Bradshaw. Indeed, the five-day timeline in NRS 239.0107 may help to speed-up responses from public bodies.

Thus, legislators can be expected to ask whether a need exists for subpoena power when records and materials may already be available to the AG.

The second proposal to make it into the legislative package would add a new provision to state law requiring a public body to publically acknowledge, as an agenda item, when the AG has found that the body violated the open-meeting law. It would also have to post the opinion as back-up material.

That proposal arose from a situation where Taylor found such a violation, but the chairman of the public body in violation sat on the findings, never informing the rest of the members of the public body.

“This issue is accountability and transparency of the public bodies,” Masto told the task force. “And so that’s what we’re saying, is that if the public body engaging, is this, and if there was some concern about an open meeting violation, the public at large should be made aware of it. And so, the only way that they are going to be made aware of it, is at least putting it on an agenda — [a] future agenda — to have that acknowledgement there. So the public knows and is aware of what’s occurring.”

While it sounds simple enough to require a public body to post a finding of violation on its agenda, in the AG’s case it is not.

That’s because the Nevada AG’s office has, since 1977, engaged in an “evolving practice” of writing opinions and letters, with findings of facts and conclusions of law that are not authorized in statute. While this practice is widely accepted in Nevada as part of the custom and practices, such rulings may not necessarily be binding on public bodies.

While no member of the task force mentioned the advisory nature of the particular decisions at issue, Mary Ann Miller, legal counsel for both the Clark County Commission and the Clark County school board, raised concerns that a public body could be required to place into the public record an opinion with which it might not agree, and with no opportunity to even note its dissent.

“If the attorney general just issues an opinion, saying here are the facts that we found [and] it is our opinion that it violates the open meeting law, and we admonish you not to do this in the future, for example,” said Miller, “this type of legislation would require that a governing body put it on an agenda and there’s no avenue for that governing body to say we respectfully disagree with that conclusion.”

Typically, when an administrative agency makes findings of facts, there is an opportunity for the other party to appeal. As it stands, there is no avenue of appeal to these quasi-administrative decisions nowadays used by the AG’s office. Thus, indicated Miller, she felt strongly that if a statute gave an explicit mandate to act upon those decisions, then there should be specific statutory authority allowing appeal of those decisions.

 “If we are required by law to take action as a result of an administrative agency, it seems to me that there should be some remedy to review that administrative agency’s action,” said Miller to the other members of the task force.

Rather than create a formal administrative process, the committee settled on suggesting an additional statutory provision: “a public acknowledgement made pursuant to this section is not an admission of wrongdoing for purposes of civil and criminal penalties pursuant to NRS 241.1040 or declaratory and injunctive relief pursuant to NRS 241.037.”

Despite this concession, however, the proposal could still face opposition in the Legislature because it tends to legitimate the attorney general’s unilaterally created practices while denying due-process and appeal opportunities.

Another proposal, to codify the attorney general’s discretionary practice of allowing public bodies to “cure” their open-meeting-law infractions, died in discussion. The proposal tended to confer upon public bodies rights to “cure,” thus undercutting the attorney general’s authority. Because the proposal was confusing and the custom of curing violations was already an accepted practice, the recommendation died for lack of a motion.

The two remaining recommendations, redefining public body to include committees created by single executive authorities and imposing civil fines on public-body members for open-meeting-law infractions, were held over for further review and discussion.