By Robert Fellner, Nevada Policy Research Institute and Tod Story, ACLU of Nevada
Sunshine Week is dedicated to celebrating the principles of a transparent and accountable government, which makes it the perfect time to announce the launch of the Nevada Open Government Coalition.
The ideologically diverse Coalition was created to continue the success of our efforts to update the Nevada Public Records Act (NPRA) in 2019, and ensure that governments are transparent with the public as we seek information in the pursuit of accountability. The law aims to “foster democratic principles” by requiring that “all public books and public records of a government entity” are open to the public.
The latest example of a government agency trying to avoid their statutory obligations was highlighted in a state Supreme Court ruling from last month.
The case centered around efforts to obtain the results of an investigation by the Clark County School District into reports of inappropriate behavior by an elected school trustee.
While it’s hard to imagine an example of a document that more clearly falls within the realm of public records — the report about the conduct of an elected official seeking re-election was created by a public agency with public money — the school district nonetheless refused to disclose the report in response to a public records request submitted by the Las Vegas Review-Journal.
The newspaper was forced to sue and thankfully obtained the report just two weeks before the election, but only because it had the resources necessary to file a lawsuit.
One reason the newspaper was willing to take on the significant cost of litigation, however, was because of a provision within the Public Records Act that requires the government to reimburse the legal costs incurred by the requesting party, if a court finds that the government did, in fact, violate the law by withholding public records.
Absent this provision, the NPRA would be far less effective because government agencies could unlawfully withhold documents knowing that few organizations would be willing to pay the tens of thousands of dollars it would cost to force the government to comply.
This was precisely what CCSD argued for in its appeal.
Not content with wasting tax dollars to keep the investigation itself secret, the school district engaged in a lengthy appeal asking the Court to require the newspaper to pay its own legal fees.
The Nevada Supreme Court ultimately rejected the school district’s frivolous and self-serving argument. However, the whole ordeal will still end up consuming more than $125,000 of public money that should have gone instead towards education.
More must be done to ensure compliance with the Public Records Act. The importance of this law and government transparency cannot be overstated.
Using the public records law, the Reno Gazette-Journal recently discovered that Tesla defied a court order and search warrant by refusing to allow federal investigators access to their property. Given the enormous subsidies the state has provided to Tesla, the report is of significant public importance, but would never have seen the light of day if not for the public records law.
The Review-Journal used the law to help uncover numerous scandals and examples of corruption that officials would have preferred remained hidden, including failed oversight by the state Dental Board, improper use of government funds at the Las Vegas Convention Visitors Authority that would ultimately lead to criminal charges, and highly questionable activities at the Nevada DMV, where employees are alleged to have sabotaged a botched $75 million computer upgrade in an attempt to obtain bribes.
Thankfully, many public agencies comply with the law without a court order. But as this latest ruling reminds us, some agencies have no problem squandering significant amounts of tax dollars on frivolous legal efforts in an attempt to keep the public in the dark.
By educating, training, and providing resources on government transparency, the Nevada Open Government Coalition hopes to empower citizens with the knowledge and tools they need to hold public officials accountable.
The Coalition will also advocate for legislative changes designed to discourage the type of noncompliance exemplified in the recent CCSD case, which is sadly far too common.
To that end, the Coalition believes that public officials who violate the NPRA should face a penalty for doing so. This would ensure all Nevadans, taxpayers and public officials alike, are treated fairly under the law, while also providing the accountability needed to ensure Nevadans receive the fully transparent government to which they are entitled.
Robert Fellner is Vice President & Director of Policy of the Nevada Policy Research Institute, an independent organization that promotes free markets and individual freedom in the Silver State. Tod Story is the Executive Director of the ACLU of Nevada, which works to defend and advance the civil liberties and rights of all Nevadans. They are founding board members of the Nevada Open Government Coalition.
A number of Nevada counties have passed Second Amendment sanctuary resolutions in response to state lawmakers passing a “Red Flag” law in 2019 that would allow persons accused of being a potential danger to themselves or others to have their firearms confiscated by order of a judge.
But rather than threatening to flout the law, the better route is the one taken by Elko County commissioners recently and that is to challenge the law in the courts. The commissioners voted to join a lawsuit filed in December by attorneys for NevadansCAN (Citizens Action Network) that argues the “Red Flag” section of Assembly Bill 291, which was passed on a near party-line vote with Democrats in favor and Republicans opposed, is unconstitutional because it violates the right to due process and the right to keep and bear arms — as guaranteed by the Second Amendment of the U.S. Constitution and the Nevada Constitution, which states, “Every citizen has the right to keep and bear arms for security and defense …”
According to the Elko Daily Free Press, at the start of the meeting Elko County Sheriff Aitor Narvaiza declared, “On Jan. 7, 2019, I was elected sheriff of Elko County. I took an oath to protect the constitution of the United States and the constitution of the state of Nevada. I’m here to tell the lawmakers to keep your hands off our guns.”
He was quoted as saying, “Let’s enforce the laws that we have which are reasonable instead of enacting more laws which are unconstitutional. … A great president once said this country cannot be defeated in combat, but it can be defeated within. Right now this country is crumbling, slowly, due to weak-minded politicians and lawmakers who push unconstitutional laws for personal gains and to fill their pockets.”
He received several rounds of applause the newspaper reported.
The litigation appears to have sound legal footing due to a recent unanimous Nevada Supreme Court ruling. The court found that gun ownership is such a fundamental right that it cannot be taken away merely by a judge’s ruling, opining that a person charged with misdemeanor domestic battery is entitled to a trial by jury, because the state Legislature in 2017 enacted a law saying someone convicted of such a crime could have their right to keep and bear arms denied.
The U.S. Supreme Court has held that only those persons charged with a “serious” crime are entitled to a jury trial. The unanimous Nevada opinion written by Justice Lidia Stiglich states the change in state law to prohibit firearms possession by someone convicted of domestic violence effectively increases the “penalty” and makes the crime “serious” rather than “petty.”
“In our opinion, this new penalty — a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions — ‘clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one,’” Stiglich wrote in a case out of Las Vegas.
The NevadansCAN lawsuit declares, “This (“Red Flag”) law makes mincemeat of the due process of law, will endanger law enforcement and the public, and is a tool for stalkers and abusers to disarm innocent victims. Empirical data is available that nearly a third of such orders are improperly issued against innocent people, in states with experience of the operation of such a law.”
Proponents of such laws often cite the Oct. 1, 2017, mass shooting that left 58 country music concert goers dead in Law Vegas as justification, but neither this “Red Flag” law nor the recently enacted tougher background check law would have prevented that tragedy.
AB291 defies the Second Amendment right to bear arms, the Fourth Amendment right to be secure from unreasonable searches and seizures, the Fifth Amendment right to not be deprived of life, liberty, or property without due process of law and the 14th Amendment prohibition against states abridging the privileges and immunities of U.S. citizens.
It must be overturned and litigation is the proper route to do so.
A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, Sparks Tribune and the Lincoln County Record.
WINNEMUCCA – Nevada Republican Party officials, seeking to put 2018 state losses behind them and set a glide path for nominating President Donald Trump for a second term in 2020, re-elected their incumbent chairman and other party leaders Saturday and formally took the party out of holding a presidential caucus to choose its candidate in February.
The Silver State’s GOP thus becomes the latest state party to all but formally endorse the sitting president more than a year before the election, though central committee members stopped short of nominating him outright. That vote, per Republican national committee rules, won’t happen until February, state leaders said Saturday.
But by opting against a caucus, a move favored by the Trump campaign in Nevada and elsewhere, state Republicans do avoid a contest that could sow division and would cost the party money, but whose outcome would not be much in doubt.
Republicans in South Carolina and Kansas voted to forgo their states’ primaries earlier Saturday, and Arizona Republicans were expected to follow suit as well.
“We have an incredible incumbent who’s very strong,” Douglas County’s Amy Tarkanian told fellow delegates as party faithful debated the move. “And I think it would be a slap in his face if we did not pass this.”
The measure was approved on a show of raised hands. Those who spoke against it said skipping the presidential caucus would sharply curtail participation and enthusiasm for other caucus contests, which will continue as normal.
“It is not only about money. It’s also about the individual’s right to go to the (caucus) and cast a vote,” said Clark County delegate Mary Beganyi. “You want to elect Republicans? Engage Republicans.”
Meeting Saturday in Winnemucca, the county seat of strongly-Republican Humboldt County in Northern Nevada, far from Democratic strongholds in the south, party officials also backed the full slate of incumbent leaders, all Trump stalwarts who enjoy the similar backing of the president.
Chairman Michael McDonald, who has served since 2012, easily won a three-way race with 57 percent of the vote, or 205 out of 362 votes cast, beating back opponents who sought to blame him for the party’s losses in 2016 and 2018.
Trump lost the state in 2016, and Republicans suffered steep losses in 2018 up and down the ballot, including races for U.S. Senate, three of four U.S. House races, and the governor and attorney general races. Secretary of State Barbara Cegavske remains the only Republican statewide elected official.
McDonald defeated Mesquite Councilwoman Annie Black, who received 102 votes, and former Clark County GOP chairman Dave McKeon who won 54.
The caucus opt-out had the backing of the chairman and leadership.
“Caucuses are expensive,” McDonald said during a break in the meeting. He noted that county party organizations had their eyes on reversing 2018’s losses in state legislative races and wanted to “focus on and put the resources where they’re needed.”
In Nevada, Democrats hold a 73,000 active registered voter advantage over Republicans on the strength of their 165,000-voter lead in Clark County, where 71 percent of Nevada’s voters reside. Republicans have a registration advantage in the state’s other 16 counties. State active-voter registration is 38 percent Democratic, 33 percent Republican, and 22 percent nonpartisan according to August figures from the secretary of state’s office.
It was a senseless and futile gesture, but our Democratic lawmakers and governor were just the ones to do it.
Despite the fact Nevada voters in 1994 and 1996 amended the state Constitution to declare “an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form,” the 21-member state Senate approved the extension of taxes and fees that were supposed to be curbed with a 13-8 vote, one vote short of the constitutionally mandated two-thirds. Gov. Steve Sisolak signed the tax extensions into law.
The eight Republican senators who voted against the tax extensions and three companies that would have to pay the higher taxes have sued in district court in Carson City, asking the court for a temporary restraining order and a permanent injunction against enactment of the laws.
The Democrats charged ahead with tax and fee extensions after their compliant Legislative Counsel Bureau (LCB), the lawmakers’ lawyers, issued an opinion that a two-thirds vote was not necessary since the taxes were not being “raised” but merely allowed to continue at a rate that was scheduled to be reduced, paying no heed to the fact the bills in question “generate” public revenue. Asked nearly the same question in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary.
When Republicans first threatened to sue, Sisolak confidently stated, “We’ve got legal opinion from LCB that, you know, a simple majority is what’s needed. I’ve been in government for 20 some-odd years, and if you don’t trust your attorneys, you’ve got a problem. So I’m confident that the attorneys gave us a good opinion. We’ll move forward from there.”
After the suit was actually filed, a somewhat less assured Sisolak was quoted by the pressas demurring, “I remain absolutely committed to taking action if necessary following the court’s decision to ensure our schools continue to receive the total amount of funding approved by the Legislature for the … biennium.”
According to the governor’s executive budget at the end of that biennium there is expected to be a rainy day fund balance of $415.2 million, more than enough to cover the $98 million that the extension of the modified business tax rate and the $7 million that the $1 Department of Motor Vehicles technology fee extension are expected to generate.
The modified business tax extension is scheduled to begin being collected on Oct. 1 and the technology fee was set to end on July 1, 2020.
So, what was the point in pushing the constitution-ignoring legislation?
Senate Republican Leader James Settelmeyer said in a statement released to the media after the suit was filed, “We have checks and balances for a reason and eroding the two-thirds requirement is an unprecedented disregard for the constitution and creates a dangerous precedent. While there was ample money to fund education and other vital programs, Sisolak and (Senate Democratic Leader Nicole) Cannizzaro acted recklessly and their behavior created an unnecessary constitutional crisis at the expense of over 23,000 small business in Nevada.”
The lawsuit itself makes abundantly clear the stakes involved here: “This action involves an issue of of significant public and statewide importance as it seeks to uphold and protect the constitutional amendment proposed by citizen ballot initiative adopted and overwhelmingly approved by Nevada voters in 1994 and 1996. As provided in Article 1, Section 2 of the Nevada Constitution, political power is inherent in the people. Government only has power from the consent of the governed, and the residents and citizens of the State of Nevada twice voted strongly in favor of amending the Nevada Constitution to add the two-thirds requirement, and the two-thirds requirement has, at least prior to 2019, been applied consistently to legislative bills extending sunsets by the Nevada Legislature.”
The Republican senators and three companies, of course, are asking for recovery of reasonable attorney fees and costs. So, the taxpayers are likely to get stuck with all the costs from both sides.
The suit further noted that lawmakers “had enough money to fund the State’s budget without the public revenues created, generated or increased as a result of the changes to the payroll tax …”
So the passage with less than two-thirds votes was senseless, and, once the courts correctly rule that a two-thirds vote was constitutionally necessary, it will have been futile.
A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.