citizen advisory boards open meeting law training slide 1 march 29, 2011 part 1 nevada open meeting...

Citizen Advisory Boards

Open Meeting Law Training slide 1 March 29, 2011

Part 1Part 1Nevada Nevada

Open Meeting Law forOpen Meeting Law forBoard/Commission Board/Commission

MembersMembersNathan Edwards

Deputy District AttorneyWashoe County District Attorney’s

Office



Open Meeting LawOpen Meeting Law

• Is it worth it? Must local governments give public notice before deciding a matter?

• Must every meeting be agendized?



Sunshine LawSunshine Law

The “People’s Business,” conducted by public bodies, shall be open to the public. Thus, the Open Meeting Law applies to all meetings of a public body at which deliberation takes place and/or action is taken….

NRS 241.010, et. seq.



What is a Public Body?What is a Public Body?

• Any administrative, advisory, executive or legislative body of the State or a local government which expends or disburses or is supported in whole or in part by tax revenue or which advises or makes recommendations to any entity that expends or disburses or is supported in whole or in part by tax revenue

• CABs and some other boards and commissions have advisory power

• Other boards and commissions have decision-making authority

• Legislature and Judiciary exempted



What is a Meeting?What is a Meeting?

Gathering of members of a public body in which a quorum is present to deliberate toward a decision or to take action on any matter over which the public body has supervision, control, jurisdiction or advisory power.



Meeting Meeting (continued)(continued)

A series of gatherings of members of a public body at which:

–Less than a quorum is present at any individual gathering;

–The members attending the individual gatherings collectively constitute a quorum; and

–The series of gatherings was held with the specific intent to avoid the provisions of the law.



ExceptionsExceptions• Social Functions

– If members do not deliberate toward a decision, or– take action on any matter over which the public

body to which they belong has control, supervision, jurisdiction or advisory power

• Attorney-Client Communication– To receive information from the public body’s

attorney, and – to deliberate on potential or existing litigation on a

matter over which the body has control, supervision, jurisdiction or advisory power



What Constitutes a What Constitutes a Quorum?Quorum?

A simple majority of the constituent membership of a public body unless another proportion is established by law

– Elected body requires majority of full membership for affirmative action

– Appointed body requires majority of quorum for any action



What Constitutes an What Constitutes an Action?Action?

• A decision made by a majority of members present during a meeting of a public body

• A commitment or promise made by a majority of members of a public body during a meeting



Action Action (continued)(continued)

Serial Decision-making Constitutes a Violation– Requires a majority of the members– Applies to Communications in Writing,

i.e., Letters and E-mails– Includes Discussions by and among

Members about a Matter to be Heard



What Constitutes Notice?What Constitutes Notice?

Written notice, to include:– Time, place and location of meeting– List of locations where notice has been

posted– An agenda, to include:

• Clear and complete statement of topics scheduled to be considered during meeting

• Indication of those items on which action may be taken

• A public comment period



Notice Notice (continued)(continued)

• Notice to be posted at principal office of public body or building at which meeting is to be held

• Not less than three additional separate and prominent places within jurisdiction

• Not later than 9 a.m. of third working day prior to meeting



Notice Notice (Continued)(Continued)

• Delivered to the postal service used by the public body not later than 9 a.m. of the third working day prior to the meeting

• If agreed by requestor, delivered by e-mail not later than 9 a.m. of the third working day prior to the meeting

• Supplemental posting on website, if available



Other RequirementsOther Requirements

• Public body must make available, upon request, and at no charge:– A copy of the agenda– A copy of any proposed ordinance or

regulation to be discussed at meeting– Any other supporting material provided

to public body

• May provide by electronic mail



ExceptionsExceptions

• Confidential documents• Materials not yet provided to

members

Caveat: Unless confidential by law or subject to an attorney-client privilege, materials must be available to public at time provided to members



Emergency ItemsEmergency Items

Emergency means – as stated on the record– An unforeseen circumstance which

requires immediate action and includes, but is not limited to,• Disasters• Impairment of health or safety• Loss of money or grant opportunity



Other IssuesOther Issues

• Time of Meeting and Time Certains• Cancellations• No Quorum• Accommodations for Disabled• Closed Meetings• Special notice when taking property or

administrative action against a person



Public CommentPublic Comment• Must be on agenda, but placement up to

public body• Not limited to only one public comment

period• May not circumscribe content of speech

on public comment except:– Comments may be required to be directed

to board as a whole – no personal attacks– Comments may be limited to matters not on

the agenda as long as comment will be allowed at time of agenda item



Disruptive BehaviorDisruptive Behavior

• Public body may adopt rules governing public comment and input on agenda items

• Rules may not be based upon content of a person’s speech/comment

• Warning appropriate• Removal not a violation



Minutes and Public Minutes and Public AccessAccess• Minutes must include, at minimum:

– Date, time and place of meeting– Members present and those absent– Substance of matters discussed or

decided and record of any vote

– Substance of comments of member of general public, if requested, and copy of written materials, if any.

– Any other matter if requested by member of public body



Minutes Minutes (continued)(continued)

• To be available for inspection within 30 days of meeting (even if in draft form)

• Maintained for 5 years; to be archived• Available to subject of closed session upon

request or if confidentiality waived



Recorded and/or Recorded and/or AudiotapedAudiotaped

• The meeting may be recorded or audio-taped by third party - as long as not disruptive of meeting

• Tape must be retained for at least 1 year• Tape must be made available to public –

at any time following meeting



What Happens if Law What Happens if Law Violated?Violated?• Attorney General may bring action to:

– Have action declared void (60 days)– Obtain injunctive relief to require

compliance with law (120 days)– Bring a criminal action (6 months)

• Civil action may be maintained by other than Attorney General



Violation Violation (continued)(continued)

Misdemeanor– Member attending a meeting where action

is taken in violation of law (with knowledge of violation)

– Wrongful exclusion of person from meeting



Other Meeting MattersOther Meeting Matters

• Correction of Minutes• Preparation of Agenda



Part 2Part 2Nevada Nevada

Ethics in GovernmentEthics in Government

Nathan EdwardsDeputy District Attorney

Washoe County District Attorney’s Office



NRS Chapter 281ANRS Chapter 281A

• What is the ethics code?• Where is it found?• To whom does it apply?• What does it require?



What is the ethics code?What is the ethics code?

• Series of rules governing the conduct of certain public officers and employees



Where is the ethics code Where is the ethics code found?found?

• NRS Chapter 281A



To whom does it apply?To whom does it apply?

• Public employees, 281A.150: any person who performs public duties under the direction and control of a public officer for compensation paid by the state or any county, city or other political subdivision

• Public officers, 281A.160: person elected or appointed to a position which:– Is established by law (constitution, statute,

ordinance, charter)– Involves the exercise of public power, trust,

or duty



Excluded!Excluded!• Justices, judges or other officers of the

court system• Members of advisory boards,

commissions, or other bodies• Members of special districts whose duties

do not include formulation of a budget or authorization of expenditure of funds

• County health officers appointed 439.290



What does the code of What does the code of ethics require? ethics require?

Code of ethical standardsCode of ethical standards• 281A.400 - 480



281A.400281A.400• No gifts that would tend to influence improperly• No use of position to get unwarranted privileges • No negotiation by employee or officer of contract

between government agency and employee’s or officer’s business

• No payment from private source for performance of duties

• No use of confidential information obtained thru position to benefit personal interests

• No suppression of government info that would tend to be unfavorable to employee

• No attempts to benefit personal interests thru use of subordinate



281A.400 281A.400 (continued)(continued)

• No seeking of employment or contracts thru use of government job

• With exception of certain rules for legislators, no use of government time, property, equipment for personal/financial interest– Exception for appropriate de minimis use

pursuant to policy with nominal cost (reimbursement required)

– Exception for use of mailing lists, computer data, other info available to the public

– Exception for use of phone or other means of communication if no special charge for use



281A.410281A.410• Limits ability to counsel or represent

persons before agency that employs officer/employee



281A.420281A.420Conflicts of Interest!Conflicts of Interest!

• Very important section for public bodies• If at the time a matter is called a member

has a conflict of interest, it must be disclosed• Conflicts include commitments in private

capacity to interests of others in the matter, pecuniary interest in the matter, receipt of gift or loan in connection with a matter

• Although not written, best to err on the side of caution and make disclosures

• Once disclosure is made, next question is whether recusal is necessary



281A.420281A.420Conflicts of Interest! Conflicts of Interest!

(continued)(continued)• Recusal generally disfavored because of importance of public officials carrying out their duties

• Recusal nonetheless necessary “only in clear cases where the independence of judgment of a reasonable person in the public officer’s situation would be materially affected” by the conflict (NRS 281A.420(4))

• With certain exceptions, effect of recusal is reduction of necessary quorum and number of votes to carry an item



281A.430281A.430

• Rules restricting and, in most cases prohibiting, government folks from entering contracts in their private capacities with the government agency or entity that employees them



Other ProvisionsOther Provisions• 281A.500 requires public officers to file form

with ethics commission acknowledging review of ethical standards

• 281A.510 prohibits employees from accepting “honorariums,” meaning payment of money or value to government folks for appearance or speech in official capacity over and above what they’re already paid to do the job

• Other provisions. Sigh! There are even more provisions, but we’ve covered the “basics.” If in doubt, best to seek legal advice before acting or participating in a transaction!



Final CommentsFinal Comments

Drowning under the open meeting law? Questions about ethics laws? Let your staff or counsel be your oars: knowledge, experience, advice.



Who to ContactWho to Contact• Your board/commission’s legal counsel• Bob Webb

– 328-3623; [email protected]

• Sheri Ingley– 328-3612; [email protected]

• Nathan Edwards– 337-5700; [email protected]



Questions???

and

Certificates

citizen advisory boards open meeting law training slide 1 march 29, 2011 part 1 nevada open meeting...

Documents

meeting slide

action slide

advisory power slide

nevada open meeting

available slide

meeting indication

public comment period

public notice