Editorial: Bill would strengthen public records law

It is time to put some teeth into Nevada’s public records law.

Even though state law requires that all public records and books, except those specifically exempted as confidential by law, must be open for inspection and copying, government agencies have been flouting the law for years, refusing to turn over anything that might prove embarrassing to the agency or its bosses. Police refuse to release records. School districts and cities conduct investigations of misconduct and refuse to release the results. One coroner refuses to release autopsies, even to a spouse. The public employee pension system refuses to release the names and pensions of pensioners.

And when someone challenges the intransigence in court, the agencies hire lawyers and spend tax dollars to fight letting the taxpayers know what they are doing with our money. When they lose, they shrug it off and do it all over again, because there are no consequences for the agency or the decision makers.

Now comes Senate Bill 287, which would put some skin in the game for the agencies and the people who wrongly deny public records requests.

Should SB287 become law, if a court determines a governmental entity or the person making the decision on behalf of the governmental entity wrongly denies a records request, the requester may be awarded a civil penalty of not less than $1,000 or more than $250,000 per offense from the agency or the responsible party or both.

That part about making the responsible party pay up should grease a few skids.

Perhaps it also should specify that the agency may not reimburse the responsible party for the civil penalty.

A newly formed group called Right to Know Nevada sent out a press release via email recently supporting SB287.

Maggie McLetchie, an attorney who has represented the Las Vegas newspaper in a number of records lawsuits, was quoted as saying, “By ensuring that existing law is actually followed, Senator (David) Parks’ bill would reduce the need for expensive public records litigation, which is a good thing. The goal is to eliminate the need for costly lawsuits and to simply have the government be fully transparent and accountable to the people it serves, which is what state law already requires.”

ACLU of Nevada Executive Director Tod Story said, “While existing law already requires a response within 5 business days, we have experienced vastly different response times, not too mention fees, from governments across the state in response to the identical request. In fact, some agencies simply never responded to our request at all.”

The bill would also limit what an agency could charge for a public record to what it actually costs to produce it, excluding labor cost.

Passage of SB287 might actually put some meaning into the original law’s intended purpose: “The purpose of this chapter is to foster democratic principles by providing members of the public with access to inspect and copy public books and records to the extent permitted by law; The provisions of this chapter must be construed liberally to carry out this important purpose; Any exemption, exception or balancing of interests which limits or restricts access to public books and records by members of the public must be construed narrowly.”

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.

Newspaper column: Bill would shred Read by 3 law

A gaggle of Democrats in Carson City have proffered a bill that would gut Nevada’s Read by 3 law like a fish.

In 2015 lawmakers voted to require schools to have students who have not achieved proficiency in reading by the end of the third grade to be retained in the third grade for another year. It was modeled after a law passed in Florida in 2002 that quickly reduced fourth grade illiteracy.

The Nevada law is scheduled to take effect with the 2019-2020 school year.

When Florida’s law — dubbed Just Read, Florida — was passed the Nation’s Report Card, prepared by the National Assessment of Educational Progress (or lack thereof), showed only 27 percent of Florida fourth graders were proficient in reading, 4 points below the national rate. In 2017, 41 percent of Florida fourth graders were proficient, 4 points above the national rate.

In 2017, only 31 percent of Nevada fourth graders were proficient in reading, 7 points below the national average.

In a 2011 op-ed in The Wall Street Journal, Jeb Bush, who was governor of Florida when the reading bill passed, explained the rationale for the proposition, “While preparing kids for college and careers starts on the first day of kindergarten, the first good indicator of their chances for success may come in fourth grade. That is when students transition from learning to read to reading to learn. A Manhattan Institute study found that students who can’t read and yet are promoted fall further behind over time. Alarmingly, 33% of fourth-graders in America are functionally illiterate …”

Bush boasted that before the reading law was enacted fully half of Florida’s fourth-graders were functionally illiterate, but by 2011 fully 72 percent could read.

Assembly Bill 289 would emasculate Nevada’s law before it has a chance to even attempt to succeed.

First, the bill would require a parent or legal guardian to provide written consent for a pupil to be retained a grade regardless of reading proficiency.

Second, the bill would change the requirement for a pupil to be proficient to merely “performing at a level considered to be within the average range for a pupil enrolled in the same grade in which the pupil is enrolled …”  The law doesn’t state whether that average is for a given class, school, county or statewide. Nor does it contemplate that at any point that “average” might actually be above the reading  proficiency level. Fat chance of that if this bill passes.

In 2017 Democratic lawmakers were unsuccessful in an attempt to repeal the law outright. At the time, Gov. Brain Sandoval, an ardent backer of the original bill, put out a statement saying, “The Read by Grade 3 initiative placed nearly $30 million directly in classrooms in more than 300 schools across Nevada with a clear line of accountability and singular focus on developmental reading. The Governor will not compromise on the goal of ensuring every student in Nevada is reading at grade level by third grade.”

Facing a certain veto, the bill was never brought up for a vote. There is a Democrat in the governor’s mansion now.

Nevada’s State Board of Education this past August announced policies and standards that have already reduced the number of third graders who might be required to repeat third grade due to reading deficiency.

It was estimated at the time that 29 percent of third graders could be eligible for retention, though about half could qualify for what are called “good-cause” exemptions — for those with disabilities, English learners, ones who demonstrate reading proficiency through a portfolio of school work and those who were retained in earlier grades.

The board also adopted an alternative test for those who fail the primary test, and set the cut-off score on that test at a rather law 30th percentile.

“While initial data indicates a significant number of students may be retained in third grade, the good-cause exemptions ensure fairness in this process,” Steve Canavero, superintendent of public instruction, was quoted as saying in a press release at the time. “I can’t emphasize enough, the goal of Read by Grade 3 is not to punish anyone, rather the goal of this program is to enhance a student’s ability to read successfully — thus ensuring success throughout his/her entire academic experience.”

AB287 would greatly reduce the chance of success.

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.

Mueller report is all sound and fury signifying nothing

Pardon me for being a bit obtuse, but what is the point of the special counsel Robert Mueller’s report?

Attorney General William Barr quotes Mueller saying his report “does not exonerate” President Trump. Since when is it the job of a prosecutor to exonerate anyone? Prosecutors charge someone or don’t. Exoneration is up to juries and judges.

First, Barr states “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” Collusion is not a crime. People can combine their efforts to reach a mutually beneficial goal. That is not a crime unless one is breaking anti-trust law. It may be politically unwise, but it is not a crime.

Second, under the obstruction of justice part of the report, Barr states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.” How can Trump obstruct justice if there was no crime to investigate in the first place?

After two years this all they’ve got?

Book review: Book on Las Vegas civil rights leader captures a man and an era

When you put the book down, you know you’ve been introduced to a man of uncompromising principles and watched him grow to his full potential, despite a myriad of obstacles due to racial discrimination, powerful economic forces and petty party politics.

The book is “The Westside Slugger: Joe Neal’s Lifelong Fight for Social Justice” by lifelong Nevada writer John L. Smith, whose Las Vegas Review-Journal columns I edited for two decades.

The biography introduces you to Joe Neal, the first African America to serve in the Nevada state Senate. It traces his rise from impoverished Madison Parish, La., through his three decades in the state Senate until he earned a place in the chamber’s Hall of Fame. 

Practically every page includes the name of some Nevada mover-and-shaker who befriended or exchanged blows with the ever hard-charging Neal — governors, fellow lawmakers, casino executives, fellow civil rights champions, journalists, mobsters, lawmen and family members who rose to make names for themselves in their own right.

It was Nevada state Sen. Cliff Young — a future state Supreme Court justice — who dubbed Neal the Westside Slugger for having ably represented the predominantly black neighborhood near downtown Las Vegas. “You get knocked down, but you always get back up, and you never stop swinging,” Smith quotes Young as saying of Neal.

Smith uses countless such sources as well his own considerable knowledge of the man and the times — both as a journalist and through his parents’ civil rights and union activism — to paint a detailed portrait of the scrappy Neal, who fought for the things in which he believed. 

After the fatal MGM and Hilton hotel fires in the early 1980s, Smith relates that Neal was probably the key leader in pushing legislation to require the state’s hotels and high-rises to retrofit with fire safety equipment that included sprinklers and proper ventilation systems. 

While he is probably best remembered for the civil rights efforts — including backing the Equal Rights Amendment, restoring felons constitutional rights and creating a holiday for Martin Luther King Jr. — he also fought for higher casino industry taxes to support education funding. He led the fight to limit casino development on Lake Tahoe to protect its shores and pristine water. 

Neal also fought against allowing casino owner Steve Wynn to have a sales tax exemption on his millions of dollars worth of fine art, because it cut education funding. He even bucked his own Democratic Party leaders and refused to take a stand against the storage of nuclear waste at Yucca Mountain. He also fought to end the death penalty in Nevada.

As always, Smith has an ear for the quote that fleshes out the premise of the piece — such as the one from Dina Titus, then a state senator and now a congresswoman, at the Hall of Fame ceremony for Neal, when she called him “the greatest orator in the history of the state. His eloquence derives from his academic knowledge, from his vast experience, and from his compassion for those who are about to be affected by the actions that we are about to take. When Joe stands to speak, a hush falls over the room. Everyone, including legislators, staff, the press, the lobbyists in the back, all stop to listen. He speaks from the heart. He fears nothing. He deftly parries any argument, and he does not hesitate to attack those who he believes turn a blind eye to injustice.”

Smith quotes Neal himself as saying, “You fight for the causes you believe in. You get knocked down, but get back up again. And the fight never ends because you’re fighting for the rights of people.”

The book is thoroughly researched and brings readers through those years when Las Vegas was dubbed the Mississippi of the West, when black Strip entertainers could not stay in the hotels in which they performed, through the mobbed-up days, through rough and tumble politics — including two doomed bids by Neal for the governorship of Nevada. It recounts a remarkable legacy in a remarkably readable manner.

Available in bookstores and various sites online.

 

Editorial: BLM cooperating with states on grouse protection

A greater sage grouse male struts for a female. (Pix by Jeannie Stafford for U.S. Fish and Wildlife Service)

This past Friday the Bureau of Land Management released its Record of Decisions on how to protect greater sage grouse across a number of Western states, including Nevada.

The BLM backed off Obama administration plans that would have hampered mining, ranching and oil and gas exploration, saying its goal now is to align BLM plans for managing sage grouse habitat with plans developed by each state.

The areas affected in Nevada include Battle Mountain, Carson City, Elko, Ely and Winnemucca.

“The State of Nevada thanks the Bureau of Land Management for incorporating our concerns and respecting the Greater Sage-Grouse habitat plan developed cooperatively by Nevada state agencies and local stakeholders,” said Nevada Gov. Steve Sisolak in a statement conveyed by the BLM. “In particular, Nevada appreciates the BLM’s commitment to compensatory mitigation as an integral part of the success of Nevada’s habitat management plan. We look forward to working closely with the BLM Nevada Office and the Department of Interior leadership to ensure the revised habitat plans are fully successful.”

Compensatory mitigation would allow developers to pay for methods that reduce impact on sage grouse habitat rather than simply being barred from using the land.

In December, then-Gov. Brian Sandoval, according to The Nevada Independent, issued an executive order telling the state’s Sagebrush Ecosystem Council to require energy and mining companies to offset the impacts of their activities on sage grouse habitat by using a conservation credit system.

The BLM had decided it did not have the authority to make such credit systems mandatory, but the new order supports each state’s plan and authority for compensated mitigation.

Acting Secretary of the Interior David Bernhardt said in a statement, “The plan amendments adopted today show that listening to and working with our neighbors at the state and local levels of government is the key to long-term conservation and to ensuring the viability of local communities across the West.”

Brian Steed, BLM deputy director for Policy and Programs, was quoted as saying,  “Since the very beginning of this effort, all partners have maintained the need to conserve the sage grouse and avoid the need to list the species as threatened or endangered. We also share a commitment to conservation that does not put the West’s communities at risk and which balances between regulation and access. We believe that the better outcomes for the species under these plans will demonstrate the value of coordinating federal and state authority.”

The BLM will monitor grouse populations and maintain “trigger” points that will require action of some sort. The land agency stated that in Nevada the state’s planned responses to triggering will follow the state’s strategy rather than automatically applying pre-determined response measures.

Of course, environmental groups forecast doom and gloom.

“This could drive the greater sage grouse to extinction and forever damage the American West,” said Randi Spivak, public lands director at the Center for Biological Diversity, in a press release. “Trump and former oil lobbyist David Bernhardt are blatantly rigging the system to benefit oil and gas operators. This will spell disaster for the vanishing sage grouse and for hundreds of species that depend on unspoiled public land.”

Lest we forget, early explorers of Nevada in the 1820s and 1830s never mentioned seeing sage grouse — not Jedediah Smith, not John Work, not Zenas Leonard. Nor did Joe Meek, John Bidwell, John Fremont, Charles Preuss, Heinrich Lienhard and James Clyman.

Nor did the first wagon trains in the 1840s. Not until settlers brought in horses, cattle, oxen and sheep, which fertilized the soil and ground the vegetation into the ground, while also improving water sources, did the sage grouse population grow into the millions.

Human activity actually caused the birds to thrive. Fires and lack of predator control have caused the grouse population to dwindle somewhat.

Common sense and cooperation between the federal land agencies and the experts in each state can keep the grouse from returning to a more “natural” population level prior to the arrival of settlers.

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.

Newspaper column: Nevada press shield law protects bloggers

Unlike too many jobs in this country there is no such thing as a licensed journalist, but a Carson City judge has found such in the penumbra of Nevada’s press shield law.

Normally those in the press don’t seek any privilege not accorded any other citizen, but by the very nature of the job — showing up at fires and car crashes, attending public meetings, poking into nooks and crannies of government and society, asking questions and quoting people — there needed to be a means to keep the press independent and not be dragged into court hearings or depositions every other week.

That’s the purpose behind the state press shield law. It prohibits giving the third-degree to the Fourth Estate. Otherwise, there would be considerable disincentive for people to talk to reporters, because reporters could be forced to testify about them or reveal their identities.

Sam Toll

The law says, “No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceeding …”

The devil apparently is in the details.

Earlier this month District Court Judge James Wilson Jr. ordered Sam Toll, creator of The Storey Teller blog, to disclose his sources for a story about Storey County Commissioner and brothel owner Lance Gilman, who is suing Toll for defamation. Toll reported that sources told him the commissioner does not actually live in his district.

Toll wrote in a recent op-ed for the Las Vegas newspaper, “Gilman, one of the wealthiest men in Northern Nevada, insists he lives in a double-wide trailer behind the swimming pool at the Mustang Ranch brothel rather than the home he owns in Washoe Valley. Evidence and interviews I conducted suggest otherwise. In order to be a Storey County commissioner, you must reside in the district you represent.”

The judge concluded Toll is a reporter, but he failed to “provide facts, legal authority, or argument that the Storey Teller is a periodical …” Hair splitting. The law says periodical, which is a journal appearing periodically.

Instead of a press, a blogger uses a computer. It can be argued that Benjamin Franklin’s “Poor Richard’s Almanack” was America’s first blog — self-written, self-printed, self-promoted. Print on paper or print in the ether. It is a distinction without a difference.

The First Amendment guarantee of freedom of the press was extended to radio and television without hesitation.

The judge further concluded Toll is not a reporter for a newspaper and did not join the Nevada Press Association until August 2017 and thus must reveal sources obtained prior to then.

Toll is not a reporter of or for the Press Association. He is a member. It is not a licensing body.

The state Supreme Court has recognized the shield law’s important function for the citizenry.

Justice Myron Leavitt opined in a case in 2000 in which a plaintiff tried to force a Las Vegas newspaper reporter to reveal his sources: “Nevada’s news shield statute serves an important public interest and provides absolute protection against compelled disclosure to ensure that through the press, the public is able to make informed political, social and economic decisions.”

Clark County judges have twice interpreted the shield law differently. In 2014 two judges ruled that the Mesquite Citizen Journal and its reporter, “although an online only news media source,” were protected by the shield law from being forced to reveal communications and records related to a series of stories about the local water district. In 2016 a judge denied demands to review a film maker’s unpublished notes and video interviews with a witness in a criminal case, ruling the press privilege also extended to the film maker.

Despite those rulings, Judge Wilson granted Gilman’s motion to compel Toll to reveal sources of information prior to August 2017 and gave the parties until April 12 for discovery to be completed.

For his part, Toll has said he is willing to be jailed before he will reveal sources. “Integrity is the most precious currency we have as journalists. Without it, the public would not entrust us with the information we need to help protect society from wrongdoers,” Toll wrote.

Let’s hope this current case is appealed and results in a similar outcome to that of the Mesquite Citizen Journal and the film maker.

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.

Opposition to gun background check law grows

“This effort to challenge this law, I don’t take this lightly. When we decide not to enforce that law, that’s an important decision. The way I made that decision was, we know what the goal is of those who want to pass this bill. At some point they want to take our guns. … They don’t just all of a sudden come out and confiscate guns. There are a lot of things that happen first, and this is one of them. And so, do we stand up now, or do we wait and stand up when they come to get the guns?”

— Elko Commissioner Demar Dahl at Wednesday commission meeting

“Now!”

— Shouts from the audience

Apparently there was nary a discouraging word when the Elko County Commission voted unanimously for a resolution declaring the county a Second amendment sanctuary county. Similar sentiments are being expressed by commissioners and sheriffs in other rural counties after lawmakers early in this year’s legislative session passed Senate Bill 143, which requires background checks to be conducted prior to the sale or transfer of any firearm by a private individual to anyone other than an immediate family member. It passed both the state Senate and Assembly without a single Republican vote and Democratic Gov. Steve Sisolak signed the bill immediately.

The Elko resolution concludes, according to the Elko Daily Free Press:

“Now, therefore, be it resolved by the Elko County Board of Commissioners that Elko County is a Sanctuary County for the Second Amendment; and be it further resolved that this Board affirms its support of the duly elected Elko County Sheriff in the exercise of his sound discretion to not enforce any unconstitutional firearms laws against any citizen; and be it further resolved that this Board will not authorize or appropriate any funds or resources for the purpose of enforcing law that infringes on the constitutional right to keep and bear arms.”

The new gun law was an effort to fix the flawed ballot measure narrowly approved by voters in 2016. The backers of the ballot initiative, Question 1, tried to avoid having a fiscal note saying how much the background checks would cost Nevada taxpayers by requiring the checks to be run through an FBI database and not the Central Repository for Nevada Records of Criminal History, which handles all background checks for federally licensed gun dealers in the states. The FBI refused to do the checks and the attorney general declared the law unenforceable and a district court judge agreed.

SB143 requires the state criminal history repository to be used.

Question 1 passed with only 50.45 percent of the voters approving it, failing in every county except Clark. Ninety percent of Eureka County voters rejected it, as did 82 percent in Elko and White Pine, 74 percent in Nye, 88 percent in Lincoln, 76 percent in Mineral and 89 percent in Esmeralda, for example.

At the Elko Commission meeting Elko County Sheriff Aitor Narvaiza was quoted as saying, “It is my intention that Elko County sends a strong message to the people of Nevada. Listen to us and do not infringe on our Second Amendment rights.”

Elko Commissioner Rex Steninger was quoted as saying, “Registration is the first step to confiscation. History is littered with what happens when they take our guns away. I did a little research on this. One source estimated 56 million people were exterminated in the 20th century following gun registration and confiscation.”

Douglas County commissioners passed a similar resolution earlier this month.

A number of county sheriffs have called the law unenforceable.

Elko County Sheriff Aitor Narvaiz addresses the county commission. (Elko Daily Free Press pix)