Senate bill would make those who wrongly deny public records requests pay for the effrontery

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

Government agencies have been flouting the law for years, refusing to turn over anything that might prove embarrassing to the agency or its bosses. The police refuse to release records. The school districts conduct investigations and refuse to release the results. One coroner refuses to release autopsies. The public employee pension system refuses to release the names and pensions of pensioners. Etc., etc., et forever cetera. They hire lawyers and use taxpayer money to fight and pay the costs of requesters when they lose, then shrug it off and do it all over again.

Now comes Senate Bill 287. It 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 on Friday 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.”



Newspaper column: Do not shroud public employee pensions in secrecy

Some lawmakers in Carson City are pushing a bill that basically declares that it is none of your business how your tax money is spent. Senate Bill 224 would make the names of recipients of pensions through the Public Employees’ Retirement System secret.

The first glimpse at the kinds of duplicity this bill invites is the fact that two of the three chief sponsors of the bill — state Sens. David Parks and Joyce Woodhouse — are currently drawing six-figure pensions from PERS, a fact that would not be known if this bill were already in law.

At a recent hearing on the bill, the third sponsor, state Sen. Julia Ratti, argued that PERS benefits are set aside for the public employees’ future use and asked, “At what point is public servant no longer a public person?”

The answer is: When that person no longer obliges the public to guarantee that pension. Right now the taxpayers are on the hook for $40 billion in unfunded liabilities, when standard accounting practices are used to make the calculation. Never mind that the taxpayers paid half of the pension contributions for that government worker retiree and all of the rather princely salary that public employee used for their half of the contribution.

Perhaps the most egregious argument made in the hearing is that the bill would cut the cost of litigation. It was PERS itself that created that cost by trying to skirt court rulings that stated the names of public pensioners and their pension amounts are public records under the Nevada public records law, which states that its purpose is to foster democratic principles by providing taxpayers with access to public records.

After the state Supreme Court ruled the records were public, PERS changed the way it kept the records, prompting Chief Justice Michael Douglas to suggest PERS had “gone out of its way to violate the spirit of the law.”

The bill’s backers are still arguing that revealing the names of pensioners might expose them to identity theft and fraud. The state Supreme Court dismissed that claim in its 2013 ruling by saying, “Because PERS failed to present evidence to support its position that disclosure of the requested information would actually cause harm to retired employees or even increase the risk of harm, the record indicates that their concerns were merely hypothetical and speculative. Therefore, because the government’s interests in nondisclosure in this instance do not clearly outweigh the public’s presumed right to access, we conclude that the district court did not err in balancing the interests involved in favor of disclosure.”

During a hearing on SB224, Robert Fellner, policy director for the Nevada Policy Research Institute, countered that the publication of public pension information has enabled the public to correct abuses of such systems. A tip to California’s fraud hotline resulted in the system recovering more than $200,000, Fellner noted, causing CalPERS to release a statement praising “the great value of the public’s assistance in CalPERS’ efforts to protect the state pension system from fraud, waste, and abuse.”

In another example, Fellner noted that the importance of disclosing names was highlighted when a Los Angeles television station discovered that a police officer who was drawing a disability pension from one city was working full-time as a police officer for another agency.

“This type of abuse will be impossible to detect if SB224 becomes law and makes secret the names of those drawing tax-funded public pensions,” he testified, adding that 20 states maintain online public pension databases.

The law that set up PERS states: “It is the policy of this State to provide, through the Public Employees’ Retirement System: A reasonable base income to qualified employees who have been employed by a public employer and whose earning capacity has been removed or has been substantially reduced by age or disability.”

Yet in a previous court case NPRI’s attorney Joseph Becker observed that there are retirees in their 40’s collecting six-figure disbursements from PERS, while still earning income from other sources. “Only through the publication of name, pension payout and related data can the public better understand how the system works and the legislative purpose be effectuated,” he wrote.

Lawmakers should reject SB224’s effort to blinder the public. If not, Gov. Steve Sisolak — who once told a newspaper columnist, this one, that public employee contracting should be transparent and that the public employee pension system was overdue for reform — should veto it.

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.

Editorial: Conversion therapy ban violates First Amendment

Gov. Brian Sandoval signed into law this past week a legislatively passed bill that makes it illegal for any psychotherapist in Nevada to provide conversion therapy to anyone under the age of 18.

Senate Bill 201 defines conversion therapy as “any practice or treatment that seeks to change the sexual orientation or gender identity of a person.”

It states this therapy is barred “regardless of the willingness of the person or his or her parent or legal guardian to authorize such therapy.” The bill description justifies this usurpation of individual and parental rights by claiming the practice is ineffective and potentially harmful.

In a statement released to the press, the bill’s chief sponsor, state Sen. David Parks of Las Vegas, said, “Banning conversion therapy makes Nevada a safer place for children who are at a higher risk of anxiety, depression, substance abuse and even suicide.”

But what is therapy? These days it is not torture, electric shock or some emersion in aversion straight out of “A Clockwork Orange.” It is talk. You know, free speech.

Aversion therapy in “A Clockwork Organe”

But SB201 dictates that some speech is permissible while other speech is not. While it prohibits speech that might prompt a person to reconsider his or her sexual orientation or gender identity, it specifically allows support or confirmation for “a person undergoing gender transition …” or provides “acceptance, support and understanding of a person or facilitates a person’s ability to cope, social support and identity exploration and development …”

It is a one-way street. The courts have repeatedly ruled that laws that limit speech based solely on its content violates the First Amendment.

Presumably, if a professional merely talked to a minor about the results of years of research and studies and that talk resulted in a change of attitude about sexual orientation, that would be illegal under the law. Facts matter for naught.

Drs. Paul McHugh and Lawrence Mayer of Johns Hopkins University School of Medicine have written that 80 to 95 percent of all children who express feelings of gender dysphoria abandon those feelings upon maturity and that more than 80 percent of youth claiming to experience same-sex attractions in late childhood and adolescence identified themselves as exclusively heterosexual upon becoming adults. Would telling a minor to let nature take its course violate the law?

A late amendment to the law makes a ham-fisted attempt to protect religious counselors from being punished under the law, but it is so convoluted as to be indecipherable and totally useless. It tries to tiptoe around the Free Exercise Clause of the First Amendment, but instead does a Mexican hat dance.

It states “there is nothing in this bill that regulates or prohibits licensed health care professionals from engaging in expressive speech or religious counseling with such children if the licensed health care professionals: (1) are acting in their pastoral or religious capacity as members of the clergy or as religious counselors; and (2) do not hold themselves out as operating pursuant to their professional licenses when so acting in their pastoral or religious capacity.”

They have to take off their professional licensee hat and put on their clerical hat.

A group called the Alliance Defending Freedom points out the Catch-22 in that.

Nevada law states that it is “unlawful for any person to engage in the practice of marriage and family therapy … unless the person is licensed …” the Alliance points out. “Telling licensed professionals that they can only engage in certain speech and activities if they do so outside of the umbrella of their license exposes them to ethical and legal liability. It places them between a rock and a hard place. If they do the counseling under their license, they violate SB 201; if they do it outside the scope of their license, they violate” another law.

What a tangled web lawmakers weave when they decide they know what’s best for young people, and they and their parents don’t.

The Latin phrase is in loco parentis, meaning “in the place of a parent.” The emphasis should be on the loco. Someone should challenge the constitutionality of this law in court.

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.

State should not interfere with life and death decisions of terminal patients

The founders of this nation were adherents to the concept of natural law, especially as outlined by philosopher John Locke, who stated that all individuals have the right to self-determination over their own lives, liberty and property and no government — whether king or democratic majority — may deny these rights.

Therefore, we suggest that a state law being proposed by state Sen. David Parks — dubbed by some as a “death with dignity” law — not be described as “giving” terminal patients the right to doctor-prescribed life ending medication, sometimes called assisted suicide, but rather as denying the state the power or authority to punish or prosecute anyone for providing such assistance.

Modern medicine has greatly increased the ability to prolong life, but it has also increased the ability to prolong death, too often an agonizing and painful one.

Parks’ bill could clear up Nevada law, which currently does “not condone, authorize or approve mercy-killing, assisted suicide or euthanasia,” though it does “not affect the right of a patient to make decisions regarding use of life-sustaining treatment, so long as the patient is able to do so, or impair or supersede a right or responsibility that any person has to effect the withholding or withdrawal of medical care.”

Such laws have given us the legal term DNR, do not resuscitate, a document too often ignored by medical staff fearful of litigation or prosecution.

Essentially, in too many cases, the law requires a terminal patient to lie in a drug-addled state in an aseptic hospital or hospice room and starve to death — hardly any more humane than stranding grandma on an ice floe in the river — but that person may not choose to terminate his or her own life to avoid those days or weeks that can hardly be called “life.”

We argue the state should have no right to dictate such decisions to any rational individual.

Opponents raise valid concerns about abuse but such a law merely restores natural law rights and does not open the door to street-corner suicide clinics where jilted boyfriends could ask to be hooked up to the suicide machine. Not rational.

State Sen. Parks told the Las Vegas newspaper he was prompted to introduce the bill because “almost everyone whom I’ve talked to has a devastating story to tell regarding a friend or relative who died under unbearable circumstances where this legislation would have provided an alternative to enduring excruciating agony.”

Parks says his bill will be modeled after Oregon’s 1997 Death With Dignity Act.

That law has strict requirements for prescribing lethal medication that must be administered by the patient and prohibits a doctor or other person from administering life-ending drugs. The patient must be 18 or older, a resident of Oregon, capable of making such a decision and diagnosed with a terminal illness that will lead to death within six months.

It requires the patient to make two oral requests 15 days apart and the doctor must believe the patient’s judgment is not impaired. The patient must be informed of alternatives, such as pain medication and hospice care. All lethal prescriptions must be reported to a state agency.

Parks, a Las Vegas Democrat, already has two co-sponsors, state Sens. Tick Segerblom, also a Las Vegas Democrat, and Ben Kieckhefer, a Reno Republican.

Should they have any difficulty pushing the bill through the Legislature in the 2015 session, they should bring it before voters, many of whom have indeed known friends and family members who have endured unnecessary pain and suffering because of government interference in their lives and deaths.

A version of this editorial appears in this week’s The Ely Times and the Mesquite Local News.