AG's finding creates ethical loophole, opens door to flouting public meeting law

It is not in dispute that polling members of a public body on an issue before a public discussion violates the Open Meeting Law.

The principle is obvious: If you can get a sense beforehand of where members stand on an issue, you are circumventing the public’s right to witness deliberations, however contrived or staged they might be.

That’s why the latest attorney general’s finding -- that the Open Meeting Law was not violated after a poll was clearly taken of Stadium Authority members for their top two choices for open seats -- is so puzzling. The Nevada Independent’s Jackie Valley reported on the questions raised by the actions and then on the attorney general’s rejection of Clark County Commissioner Chris Giunchigliani’s complaint about the nomination process. Giunchigliani had asserted she did not believe any violation was malicious -- and that may well be accurate.

Nonetheless, the consequences of the attorney general’s ruling could and probably will be to give legal cover to a practice -- polling members -- that undermines the principle of open meetings.

Here’s why:

So-called serial communications, whereby members’ preferences are discerned by other members, are barred by the Open Meeting Law. In allowing the Authority to get away with a violation, even if unintended, the attorney general offered a fig leaf that may well end up covering other boards in even stickier circumstances.

Because the pre-meeting polling was conducted by a consultant to the board, Applied Analysis, the opinion says, it “did not constitute serial communications in violation of the Open Meeting Law.”

That conclusion was reached despite a public report of the so-called poll by the Las Vegas Review-Journal and “because it did not involve interactive communications among the board members.” Chief Deputy Attorney General Brett Kandt argued that Applied Analysis essentially was acting as de facto staff to the board in polling members to get nominations for two open positions.

Kandt wrote in the opinion that because the individual interactions with board members by Applied Analysis were not shared with other board members, and were only disclosed in the supporting materials for the meeting (hence the newspaper story), there was no violation. “There is no evidence that the Board engaged in serial communications outside a public meeting….” Kandt wrote.

This finding is, to understate, problematic on so many levels.

In order to conclude that there is “no evidence” of serial communications, did Kandt interview each board member to find out whether he or she talked to another member about his or her preferences? Did Kandt ask members whether Applied Analysis told any board members what their colleagues’ preferences were?

We don’t know.

What we do know is that these nominations could and should have been done in a public meeting, where a further winnowing could and should have occurred. Instead, the winnowing process began outside of the public view. It matters not who organized and tracked the process. What matters is that it occurred privately.

Consider the precedent this sets: A staff member could now presumably be designated to poll members and set agendas accordingly. Vetting could occur behind the scenes, public disagreements could be averted, consensus could be privately achieved.

I am not naive enough to believe that members of some boards don’t already routinely violate the spirit and perhaps even the letter of the Open Meeting Law by engaging in serial communications on issues. But in this case, the act was acknowledged via a filed document and the attorney general still let them off the hook.

Other bodies are sure to take advantage of this new loophole Kandt has created. This is bad for the public and bad for the already torn ethical fabric of our state.