Editorial: Nevada court rightly upholds public right to know

The Nevada Supreme Court has made it clear that public officials cannot skirt the state public records law by using privately owned electronic devices to conduct the public’s business.

This past week the court unanimously overturned a lower court ruling that rejected a request for records from Lyon County commissioners because those records were not stored on devices owned by the county. The county conceded that public business was indeed conducted using personal phones and email addresses. The county website even lists those phone numbers and email addresses as the commissioners’ contact information.

“The use of private entities in the provision of public services must not deprive members of the public access to inspect and copy books and records relating to the provision of those services,” wrote Justice Michael Cherry, author of the opinion.

The Nevada Public Records Act (NPRA) states that, unless otherwise specifically exempted by law, “all public books and public records of a governmental entity must be open at all times during office hours to inspection by any person, and may be fully copied or an abstract or memorandum may be prepared from those public books and public records.”

Cherry further clarified, “In light of these requirements, (NPRA) cannot be read as limiting public records to those that are physically maintained at a government location or on a government server and are immediately accessible to the public during the business hours of that governmental entity. Such an interpretation would render … (the law) meaningless, as the records of private entities rendering public services would not necessarily be stored at the government office, and providing a time frame for resolving a records request would be unnecessary if records were required to be immediately produced for inspection at that location.”

Barry Smith, executive director of the Nevada Press Association, called the ruling important and substantial.

“If it had gone the other way, it would have created a gaping loophole in the law,” Smith said. “During oral arguments, justices asked the right questions. Essentially, they wondered, ‘How could the open-records law work if public officials could simply avoid it by using their personal devices?’”

Smith noted that John Marshall, the attorney for Lyon County citizens seeking the records, had a good analogy. “He said it would be like an official typing up a county document on his own typewriter at home and storing it in his personal filing cabinet. The principle remains the same. If it was public business, then it was a public document,” Smith explained.

Nevada Policy Research Institute Transparency Director Robert Fellner issued a statement saying, “In finding that public officials cannot hide their activities by simply conducting government business on personal devices, the Court reinforces the mandate within Nevada’s Public Records Law that it ‘be construed liberally to carry out [the] important purpose’ of a transparent and open government.”

In order for the public to properly evaluate the conduct of their elected and appointed officials, they must be able to see, hear and read what those officials are doing, why they are doing it, how they are doing it and for whom.

In this particular case Lyon County commissioners had rejected a zoning request for an industrial development, but later reversed themselves. Citizens filed a public records request seeking access to communications about the zoning matter whether contained on public or private devices.

Cherry’s opinion made it abundantly clear that public business must be transparent, writing, “We conclude that the NPRA does not categorically exempt public records maintained on private devices or servers from disclosure. To withhold a public record from disclosure, the government entity must present, with particularity, the grounds on which a given public record is exempt.”

We applaud the court for again upholding the public’s right to know.

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.

Editorial: Nevada’s own sex scandal needs a full airing

The year 2017 will go down as the year sexual harassment claims erupted — from Hollywood to D.C., from Harvey Weinstein to Kevin Spacey, from senate candidate Roy Moore to Sen. Al Franken.

Lest we forget, this year Nevada had its own sex scandal, but, unlike the others, this one was buried in secrecy and the accused allowed to resign and slink away.

State Sen. Mark Manendo, a Las Vegas Democrat, resigned in July after the taxpayers shelled out $67,125.12 to a law firm to investigate allegations of multiple incidents of inappropriate behavior toward female staffers and lobbyists over a number of years.

Former state Sen. Mark Manendo

Senate Majority Leader Aaron Ford, a Las Vegas Democrat now running for Nevada attorney general, hired the law firm during the legislative session earlier this year after learning of complaints.

The law firm — after interviewing 58 people, including Manendo — reported in July that Manendo violated the Legislature’s anti-harassment policy on 14 occasions during the 2017 session alone. It also said Manendo tried to interfere with the investigation by trying to get an accuser to recant and attempting to learn the names of other accusers.

In his resignation letter to Gov. Brian Sandoval, Manendo made no mention of the allegations against him. He wrote, “I am grateful for the support, trust, and confidence bestowed upon me over the years by my constituents and colleagues. As my senate term comes to an end, I feel now is the time to step aside and look for new opportunities to serve others.”

When Manendo resigned, the state Senate Democrats put out a press release saying, “Such behavior is not tolerable in any context, let alone by an elected member of the Nevada Senate. It is in the best interests of the institutions of the State Senate and the Nevada Legislature that Senator Manendo resigns from office.”

But the statement also declared, “In order to maintain the privacy and confidentiality promised to the victims and witnesses who spoke to the independent investigator, the investigative report will not be made public.”

Did the Democratic senators purposefully hide the severity of the misdeeds of one of their own that had been going on unaddressed for years?

After news media outlets filed requests for access to the investigative report under the state Public Records Law — which states that, unless exempted by statute, all public records are available for public scrutiny — the Legislative Counsel Bureau (LCB) issued a 37-page document denying those requests.

The LCB explained, strangely enough, “The Public Records Law cannot be applied to the requested materials because the Legislature and its Houses, committees, agencies, caucuses, members, officers and staff do not come within the statutory definition of ‘governmental entity’ as that term is used in the Public Records Law.” The Legislature is not a government entity?

Barry Smith, executive director of the Nevada Press Association, commented to the Las Vegas newspaper at the time, “Their lawyers have built a case for protecting legislators from public scrutiny on the argument that it’s not in the public interest and the Legislature is not a governmental entity. That’s ridiculous. It’s the kind of double-talk used by people to justify all kinds of nonsense.”

Concealing a government-contracted and taxpayer-funded report on the behavior of an elected official is tantamount to obstruction of justice. How are the citizens ever to be able to evaluate the seriousness of the allegations or even whether the the allegations might have risen to the level of warranting criminal prosecution?

How high or low is the bar set for future lawmakers and legislative staffers and lobbyists?

We believe the public deserves a full accounting and that someone running for attorney general should join us in demanding that accountability.

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.

Bill would protect some student journalists

Some legislation just shouldn’t be necessary, but common sense is so rare.

This past week the Senate Committee on Education forwarded to the full Senate Senate Bill 420, which is being described as the Nevada version of New Voices legislation, which requires schools to draft policies to protect student journalists and student publications from censorship and punishment for publication, according to the Nevada Press Association.

The bill adds this language to the law: “The board of trustees of each school district, the governing body of each charter school and the governing body of each university school for profoundly gifted pupils shall adopt a written policy for pupil publications which: (a) Establishes reasonable provisions governing the time, place and manner for the distribution of pupil publications; and (b) Protects the right of expression described in subsection 1 for pupils working on pupil publications as journalists in their determination of the news, opinions, feature content, advertising content and other content of pupil publications.”

I wrote about a student censorship effort that took place in 2010, when a choir teacher at the Churchill County High School sued a student journalist at the school’s student newspaper for writing an article — that was actually printed in the Lahontan Valley News, the community newspaper — saying parents were upset that the teacher withheld certain students’ audition tapes from a state musical competition. The case was thrown out with the judge citing the state’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute in effect at the time.

Barry Smith, executive director of the Nevada Press Association, said at the time, “Anti-SLAPP statutes are important to protect free speech, because sometimes people sue just to silence their critics.”

Efforts to repeal the anti-SLAPP law have been unsuccessful so far.

But the law of the land for students is found in Hazelwood School District v. Kuhlmeier, in which the U.S. Supreme Court held in 1988: “A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”

Former Fallon student Lauren Draper, who penned the choir teacher story, testified for SB420.

“Less than six months from graduating Churchill County High School, I found myself terrified,” she told legislators, according to NPA’s account. “After I sought and reported the truth about choir students’ audition tapes  being withheld from a statewide competition, I found myself frightened and confused about whether I had made the right decision in writing the article. I followed the code of ethics and made no libelous claims, yet I felt guilty and ashamed of reporting the truth. I was shamed by teachers I had respected and was called a ‘zealous child’ by the co-chair of the Churchill County Educators Association.”

Since Hazelwood schools have too often used censorship to protect administrators from being embarrassed by student journalists rather than protecting the “educational mission.”

 

Attorneys gone wild! Bill would eviscerate Nevada’s strong anti-SLAPP law

In 2013 the Nevada Legislature passed a strong anti-SLAPP law that was called the gold standard of such laws.

SLAPP stands for Strategic Lawsuit Against Public Participation and is generally defined as vexatious litigation solely designed to squelch free speech under the burden of expensive, tedious and lengthy court wrangling.

But Senate Bill 444 seeks to pull its teeth.

The bill was proffered by Wynn Resorts, whose owner has filed a few defamation suits over the years. It has already passed out of the Senate Judiciary Committee and the full Senate unanimously.

I wrote about the anti-SLAPP law in 2010, when a choir teacher at the Churchill County High School sued a student journalist at the school’s student newspaper for writing an article saying parents were upset that she withheld certain students’ audition tapes from a state musical competition. The case was thrown out with the judge citing the anti-SLAPP statute in effect at the time.

Today Review-Journal columnist John L. Smith and capital bureau reporter Sean Whaley both wrote about the SB444, scooping their former editor who filed his newspaper column on this bill over the week and which will be printed this week and a version posted here.

Mitchell Langberg, a Wynn attorney, testified in favor of the bill on April 6. There was no opposition. Langberg said the 2013 version of the law was too broad and too limiting on plaintiffs, such as his client, who lost a defamation case in California because of its anti-SLAPP law, though Wynn did win a defamation suit against the producer of the “Girls Gone Wild” videos.

Wynn also lost a 2001 defamation suit against columnist Smith, but Smith was not awarded costs and attorney fees, which are to be awarded under the current anti-SLAPP law.

SB444 eviscerates the level of proof a plaintiff must show to have the anti-SLAPP motion dismissed. Currently a plaintiff must show “clear and convincing evidence” of a probability prevailing in the suit. SB444 reduces this to “prima facie evidence,” which means the allegations are presumed to be true until proven false, completely shifting the burden of proof.

Marc Randazza, who helped draft the 2013 anti-SLAPP update, calls SB444 “a paragon of sleaze. It starts off with preamble statements that make it seem like it is there to protect freedom of expression, but once you read it, you realize that whoever drafted this must have done so with the clear intent of destroying the Anti-SLAPP law.”

Whaley quoted Barry Smith, executive director of the Nevada Press Association, as saying, “Anti-SLAPP statutes are important to protect free speech, because sometimes people sue just to silence their critics. After 2013, Nevada had one of the strongest anti-SLAPP laws in the country. SB444 would weaken it substantially.”

He quoted his newspaper’s in-house attorney, Mark Hinueber, as saying, “SB 444 seems to be a solution in search of a problem that doesn’t exist. The current statute, as amended in the last legislative session, balances competing interests and should not be altered.”

SB444 is scheduled to be heard by the Assembly Judiciary Committee Friday morning. Perhaps there will be opposition this time.

Look for my column on this topic later in the week.

Here is Langberg’s testimony: