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Part 1 Nevada Open Meeting Law for Board/Commission Members by BPrXg93i

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                            Part 1
                Nevada
          Open Meeting Law for
       Board/Commission Members
                      Nathan Edwards
                   Deputy District Attorney
            Washoe County District Attorney’s Office


Open Meeting Law Training       slide 1           March 29, 2011
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                          Open Meeting Law

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

     • Must every meeting be agendized?




Open Meeting Law Training         slide 2        March 29, 2011
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                            Sunshine 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.


Open Meeting Law Training           slide 3          March 29, 2011
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                   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

Open Meeting Law Training             slide 4                 March 29, 2011
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                          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.



Open Meeting Law Training          slide 5        March 29, 2011
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                            Meeting (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.


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                            Exceptions
    • 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


Open Meeting Law Training               slide 7                   March 29, 2011
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           What Constitutes a 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


Open Meeting Law Training          slide 8             March 29, 2011
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            What Constitutes an 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




Open Meeting Law Training    slide 9           March 29, 2011
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                            Action (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




Open Meeting Law Training            slide 10           March 29, 2011
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                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



Open Meeting Law Training                slide 11                March 29, 2011
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                            Notice (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



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                            Notice (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


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                          Other 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


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                             Exceptions

     • 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


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                            Emergency 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




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                            Other 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

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                            Public 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

Open Meeting Law Training          slide 18            March 29, 2011
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                          Disruptive 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


Open Meeting Law Training          slide 19     March 29, 2011
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              Minutes and Public Access
    • 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


Open Meeting Law Training            slide 20               March 29, 2011
Citizen Advisory Boards




                            Minutes (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




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           Recorded and/or Audiotaped

     • 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



Open Meeting Law Training      slide 22            March 29, 2011
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        What Happens if Law 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


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                            Violation (continued)

     Misdemeanor
          – Member attending a meeting where action is taken in
            violation of law (with knowledge of violation)
          – Wrongful exclusion of person from meeting




Open Meeting Law Training              slide 24         March 29, 2011
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                   Other Meeting Matters

     • Correction of Minutes
     • Preparation of Agenda




Open Meeting Law Training      slide 25    March 29, 2011
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                            Part 2
                         Nevada
                  Ethics in Government

                      Nathan Edwards
                   Deputy District Attorney
            Washoe County District Attorney’s Office


Open Meeting Law Training       slide 26          March 29, 2011
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                          NRS Chapter 281A
       •   What is the ethics code?
       •   Where is it found?
       •   To whom does it apply?
       •   What does it require?




Open Meeting Law Training         slide 27   March 29, 2011
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                  What is the ethics code?


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




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        Where is the ethics code found?

     • NRS Chapter 281A




Open Meeting Law Training   slide 29   March 29, 2011
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                  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

Open Meeting Law Training          slide 30              March 29, 2011
Citizen Advisory Boards




                            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




Open Meeting Law Training          slide 31              March 29, 2011
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What does the code of ethics require?
     Code of ethical standards
     • 281A.400 - 480




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                            281A.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

Open Meeting Law Training       slide 33            March 29, 2011
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                            281A.400 (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
Open Meeting Law Training             slide 34            March 29, 2011
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                            281A.410
     • Limits ability to counsel or represent persons
       before agency that employs officer/employee




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                                281A.420
                          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
Open Meeting Law Training            slide 36            March 29, 2011
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                       281A.420
             Conflicts of Interest! (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

Open Meeting Law Training          slide 37              March 29, 2011
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                            281A.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




Open Meeting Law Training       slide 38           March 29, 2011
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                          Other 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!

Open Meeting Law Training           slide 39              March 29, 2011
Citizen Advisory Boards




                            Final Comments

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


Open Meeting Law Training          slide 40           March 29, 2011
Citizen Advisory Boards




                            Who to Contact
    • Your board/commission’s legal counsel
    • Bob Webb
         – 328-3623; bwebb@washoecounty.us
    • Sheri Ingley
         – 328-3612; singley@washoecounty.us
    • Nathan Edwards
         – 337-5700; nedwards@da.washoecounty.us




Open Meeting Law Training            slide 41      March 29, 2011
Citizen Advisory Boards




                            Questions???

                                and

                            Certificates


Open Meeting Law Training         slide 42   March 29, 2011

								
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