The Nevada Association of Counties is calling for repeal of a four-year-old provision in the state’s open meeting law that provides for open evaluations of top appointed officials, like city and county managers and university presidents.
NACO will seek legislation closing evaluations and requiring public bodies to provide written reports on what happened in the closed evaluations.
The idea quickly drew opposition and the state’s largest government, Clark County, distanced itself from the proposal.
The section of the law under fire from NACO was added by the 2005 Nevada Legislature. It’s not clear whether the enactment resulted from a particular incident, but the measure—Senate Bill 267—seems to fit the facts of a dispute in the Nevada Board of Regents in 2003-2004.S.B. 267 was sponsored by Sen. Terry Care, a Clark County Democrat. Besides opening evaluation sessions to the public, it said that a statement made by a public official or a witness in a public meeting “is absolutely privileged and does not impose liability for defamation or constitute a ground for recovery in any civil action,” allowed members of the public to receive copies of supporting materials used by members of the public body, and allowed public employees who were the subject of closed meetings on their competence to decide whether to open those meetings to public.
In a closed Dec. 4, 2003, meeting of the Nevada Board of Regents, community college president Ron Remington was fired as president and demoted to the classroom without a hearing and on the basis of a secret raw investigative dossier that had not been vetted for accuracy and was not released either to the public. Also demoted was Remington aide John Cummings. The two men were not allowed to attend the meeting, were not represented in it, could present no defense and were not told the reasons for their removals. Some regents, notably this year’s northern U.S. House candidate Jill Derby, said that hearing both sides in the dispute would not have changed their minds. The Board of Regents was subsequently investigated for open meeting violations by the Nevada attorney general’s office.
It was at the next legislative session after the Remington/Cummings dispute that the change was made in the open meeting law.
NACO executive director Jeff Fontaine says a principal reason for the effort to repeal that narrow section of the open meeting law is that it inhibits discussion during evaluations of top appointed officials. Some questions, he said, can be awkward.
“I just think it’s human nature where, you know, you’re in a better environment to have that kind of frank discussion without members of the public sitting there and listening to all this. … It’s not an attempt to hide anything, to circumvent anything, because there would be a public reporting of what occurred. The idea is to create an environment that’s conducive to that kind of evaluation.”
A problem for the counties, however, is that at the time the law was first enacted, its sponsor, Sen. Care, made clear that the measure was being passed in in full knowledge that it might create embarrassment or worry: “The emphasis should be on the public’s right to know, not the discomfort of the people employed by the public. … If people just do their jobs right, there will be no problems.”
Since the lawmakers enacted the bill in full expectation that discomfort might result, whether they will reconsider that action because it did is not at all certain.
Fontaine was unable to cite specific cases where officials felt the provision hampered evaluations or interviews, but he was contacting local officials in hope of obtaining some.
“I think they can [cite such cases],” he said. “Whether or not they will, I’d have to check with folks about that.”
Clark County did not join in the call for repeal, according to a statement by the county spokesperson: “NACO’s positions do not always reflect those of the state’s 17 counties. In this case, Clark County respects the intent of existing law and supports conducting performance reviews in full view of the public.” Clark was not represented at the NACO meeting where the proposal was adopted.
The NACO proposal has drawn criticism, the harshest from Las Vegas Review-Journal editor Thomas Mitchell, who published a column headlined “Another openness challenge from the cockroaches.”
Further difficulty facing NACO can be seen in the first news stories about the group’s proposal—it was described not as a change in the law but as a weakening: “County association wants to weaken open meeting law” (Review Journal).
Nevada Press Association executive director Barry Smith said in his more than two years in his job, he has not encountered any instances of the kind of complaints about evaluations that Fontaine describes.
“I don’t know of any particular ones,” Smith said. “I told Jeff that I certainly would be willing to sit down and go over whatever language they want to propose, what they’ve got in mind and so on, because I’ve yet to see a perfect law. But in general the idea that those evaluations should be done in open session is the idea we would support.”
Smith said he also told Fontaine that for every instance that might be cited of problems, he can cite cases “when there weren’t public evaluations, things didn’t go well, that it took too long to find out there were problems.”
While Smith’s organization has not yet provided him with direction on the issue, he expects it to support either retention of the current law or perhaps an amended law that protects open evaluations while accommodating some of the counties’ concerns.
The division between Clark and the other counties may indicate that rural counties are those most concerned. In some of those jurisdictions, where everyone knows everyone, the awkwardness of some open proceedings would have a different character than in Clark.
Strangely, in one section of his “cockroaches” column, Mitchell made what seemed to be an argument in favor of the NACO position. He said that during the latest evaluation of the Clark County manager, some questions about a recent county building inspection problem did not get asked because the meeting was open: “While various commissioners sang her praises and mentioned the degree of difficulty of the job, it might’ve been prudent to ask her how she would assure the taxpayers that the county building inspectors would in the future actually conduct inspections instead of being dismissive of whistle blowers. But since it was in the open, we got to see that no such discomforting questions were raised.”