Editorial: Government retiree costs must be reined in

The PERS cost creep continues.

According to TransparentNevada, a website maintained by the Nevada Policy Research Institute, the number of former Nevada government employees drawing pensions in excess of $100,000 a year from the Nevada Public Employees’ Retirement System now exceeds 2,150. In 2013, when pension data were first made available the number was 1,000.

To pay for these lucrative pensions, starting in July the regular PERS members — teachers and other government workers — saw the amount of each paycheck that must be paid into the pension account increase from 28 percent to 29.25 percent. Half of that amount comes from the worker and half from the taxpayers. It is all taxpayer money to begin with.

Police and firefighters, who tend to have shorter careers, now must chip in 42.5 percent of their salaries, up from 40.5 percent. Again, half from the employer.

Despite these increases in contributions, PERS still will have a huge unfunded liability — more than $40 billion if you use generally accepted accounting principles.

According to Robert Fellner, NPRI’s policy director, all of the contribution hikes that have occurred over the past decade have gone towards paying down PERS’ debt rather than covering the pension checks for future retirees. “The debt component is now so large that 45 percent of what Nevada teachers will pay to PERS next year will go towards funding other people’s retirement, rather than their own, future benefit,” Fellner wrote earlier this year.

Fellner calculates the cost of funding other people’s retirement checks will cost the average teacher $7,680 this year.

Efforts to reform PERS over the years have gone nowhere. Perhaps because lawmakers themselves are members of the PERS racket.

The Nevada government worker retirement system, unlike anything found in the private sector, is based on a defined-benefit plan, meaning pensions are calculated as a percentage of the highest pay the worker receives at the end of his or her career times the number of years worked.

PERS benefits have ratcheted up over the decades by virtue of incremental benefit increases, collective bargaining gains, earlier retirement age, allowing the purchase of years of service, padding base pay with add-ons such as callback, standby, holiday, shift differential, extra duty, hazard and longevity pay, and simple compound interest.

According to the American Enterprise Institute, the average Nevada public employee pension is $64,000 a year or $1.3 million in average lifetime benefits, the highest in the nation. Meanwhile, the average Social Security annual benefit is $16,000.

It is long past time that the state change this ever more costly pension program from the defined-benefit plan to a defined-contribution plan, similar to the 401(k) plans used by corporations. The worker and the employer each contribute a set amount of the salary and the money is invested until the worker cashes out.

A bill to do this was introduced in the 2013 legislative session. Though it would have applied to future retirees only, the bill garnered no discussion and no vote was ever taken. It died without a whimper.

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: NPRI issues report card on 2019 Legislture

The conservative/libertarian Nevada Policy Research Institute (NPRI) recently published its biennial report card on our state’s legislative session, but, rather than just rate lawmakers on how they voted, this year the report card also delves into issues and lawmaker actions on bills that never even came up for a vote.

For example, the report looks into how and why Assembly Bill 420 — which sought to eliminate in Nevada the practice of civil asset forfeiture by police agencies, often without any criminal conviction of any crime — was buried without even coming up for a vote in the Senate Judiciary Committee. For years Nevada law enforcement agencies have seized cash, cars and homes suspected of being used in the commission of a crime, such as drug dealing. The agencies then kept the proceeds to spend as part of their budget — a practice the Institute for Justice has dubbed “policing for profit.”

An NPRI representative testified in support of AB420 in March, saying the reform would constitute a major victory for due-process and the rights of property owners. The Assembly then passed the bill by a 34-6 margin, drawing broad bipartisan support.

But like a similar bill in the previous session, the reform effort died in the Senate Judiciary Committee, where two of the committee members are Clark County prosecutors, whose budgets benefit from the seizures — Democrats Nicole Cannizzaro and Melanie Scheible.

“As we write this 2019 Report Card, this episode again reminds us of the swampiness and incestuous nature which characterizes Nevada politics,” the report card states. “Unless the state’s constitutional prohibition on dual servants is finally enforced, Nevadans should expect to see plenty more examples of lawmakers putting the concerns of their government employers over those of the very citizens they claim to represent.”

You see, the Nevada Constitution explicitly prohibits the employees of one branch of government from serving as a lawmaker, too. Article 3, Section 1,  reads: “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.”

The provision has been blatantly ignored for years.

The NPRI report card singled out Cannizzaro as the anti-criminal justice reform lawmaker of 2019. Democratic Assemblyman Steve Yeager, a former Clark County public defender who was the architect of AB420, was tagged the pro-criminal justice reform lawmaker of 2019.

The report also addressed a failed effort to increase government transparency — Senate Bill 287 that would have put some teeth into enforcement of the 1911 Nevada Public Records Act by imposing fines on agencies and government employees who wrongly and in bad faith violate the law by withholding public records — and a successful effort in Senate 224 to deny the public access to pertinent information about government pensioners.

SB287 was backed by a coalition dubbed Right to Know Nevada — which included NPRI, the ACLU, the Nevada Press Association, several newspapers and journalists — but it met huge opposition from government lobbyists. In the end the bill was greatly watered down. No government worker would be subjected to a fine and the maximum fine an agency would have to pay was cut from $250,000 to $1,000.

SB224, sponsored by Democratic Sen. Julia Ratti of Sparks, sought to make the names of those receiving taxpayer-funded government pensions secret. Faced with the fact that Democratic Gov. Steve Sisolak has long supported government transparency, the bill eventually was changed to allow the release of the names of pensioners and the amounts paid, but key contextual data was made secret — the retiree’s last employer, years of service credit, retirement date and whether the benefit is a disability or service retirement. The governor signed it into law.

For their efforts NPRI named four state senators pro-transparency lawmakers of 2019 — Democrats David Parks and Melanie Scheible and Republicans Ben Kieckhefer and Ira Hansen. Anti-transparency lawmakers were Ratti and Republican Assemblyman Glen Leavitt.

The report also delves into the issues of collective bargaining for public employees, education and various tax bills. The 48-page report card is posted online at https://www.npri.org/studies/2019-legislative-report-card/

As for how the lawmakers voted, NPRI rated Republican Assemblyman John Ellison of Elko No. 1 with a 92.55 percent score. No Democrat garnered a rating of better than 36 percent.

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.

 

Newspaper column: Lawmakers fail to rein in forfeiture abuse, again

In the past three legislative sessions bills have been pushed to rein in the pernicious practice of civil asset forfeiture, which allows law enforcement agencies to seize cash, houses, cars and other property without a criminal conviction and keep the proceeds — a practice dubbed “policing for profit” by the Institute for Justice (IJ).

In 2015 Nevada lawmakers did pass a bill that, as introduced, would have required proof of a criminal conviction or a plea deal before seizure of cash or property. By the time it was sent to the governor, who signed it, the conviction requirement was dropped. The law does say the seized property or money should be returned if charges are dropped or dismissed after a trial, but too often charges are never filed against anyone.

In 2017, as pointed out by Daniel Honchariw of the Nevada Policy Research Institute (NPRI) in an op-ed in the Las Vegas newspaper, another bill that would have required a criminal conviction or plea deal, as well as directing proceeds go to education rather than the law enforcement agency died in the Senate Judiciary Committee where state Sen. Nicole Cannizzaro was vice chair. Cannizzaro is a deputy district attorney in Clark County.

Honchariw noted that Nevada district attorney offices earned more than $250,000 through civil forfeiture in 2016 alone, and the Las Vegas Metropolitan Police Department pulled in $1.9 million. That police department had awarded Cannizzaro a “Commendation and Certificate of Appreciation.”

In the session just ended, still another bill was introduced to curb civil asset forfeiture abuse. It passed the Assembly on a vote of 34-6, but, you guessed it, it died in Cannizzaro’s committee without a vote.

Such a conflict of interest is precisely why the Nevada Constitution clearly states, “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others …”

It is a provision that has been roundly ignored to the detriment of Nevadans.

This past week the Institute for Justice released a comprehensive study showing that civil asset forfeiture programs do little to actually deter crime. “Fighting Crime or Raising Revenue? Testing Opposing Views of Forfeiture” looks at local crime, drug use and economic data from a variety of federal sources.

The study finds more forfeiture proceeds do not translate into more crimes solved, despite claims that forfeiture gives law enforcement more resources to fight crime.

It also found that “when local economies suffer, forfeiture activity increases, suggesting police make greater use of forfeiture when local budgets are tight. A 1 percentage point increase in local unemployment — a standard proxy for fiscal stress — is associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.”

As IJ points out in an e-mail, Nevada police and prosecutors confiscated $11.8 million worth of property from 2015 to 2018.

One of the chief problems with civil asset forfeiture is the fact the proceedings take place in civil court, where the person whose property is being taken is not entitled to a public defender. An analysis by NPRI found that more than half of all forfeiture cases brought by the Las Vegas police involved property worth less than $1,000, well below the cost of hiring an attorney. The majority of property owners were unable to afford to contest the confiscation in court.

In fact a Humboldt County deputy once taunted a motorist from whom he’d just seized $50,000 in cash by saying, “You can try to get it back but you’re not,” later adding, “You’ll burn it up in attorney fees before we give it back to you.”

Civil asset forfeiture tortures the intent of the Fourth Amendment’s right to be free of unreasonable searches and seizures and the Fifth’s right to due process.

“The Institute for Justice’s new study shows Nevada policymakers can undertake serious and much-needed forfeiture reforms without jeopardizing police effectiveness,” said Lee McGrath, IJ’s senior legislative counsel, in a press release. “This study also confirms what experienced legislators in Nevada have long known — the state’s forfeiture laws encourage the pursuit of revenue over the pursuit of public safety and justice. Next session, the Nevada Legislature should enact comprehensive forfeiture reform and end policing for profit by sending all forfeiture revenue to the School Fund.”

The governor does have the power to call a special session.

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: Public employee pensions now shrouded in secrecy

Gov. Steve Sisolak has signed into law a bill that will make it impossible for the public and even elected officials to act as a watchdogs and catch abuses in the taxpayer-funded Public Employees’ Retirement System (PERS).

Senate Bill 224, sponsored by Democratic Sen. Julia Ratti, declares much of the information about state and local government retirees confidential. Only the names of pensioners and pension amounts would be public records. Such vital information as the last employer, years of service credit, the retirement date and whether the benefit is a disability or retirement benefit are all confidential.

The bill passed both the state Senate and Assembly largely along party lines, with only a handful of Democrats voting in opposition.

Ironically, when Democratic Gov. Sisolak was a Clark County commissioner, he used public records to expose abuse of county firefighter overtime pay and sick leave. According to the Las Vegas newspaper, Sisolak spearheaded reforms that resulted in an 80 percent drop in sick leave among fire department battalion chiefs.

Without the ability to analyze the information made secret by SB224 the public will not be able to tell whether government retirees are drawing excessive pensions.

PERS costs $2 billion a year and the taxpayers are on the hook for $40 billion in unfunded liabilities.

According to an analysis by American Enterprise Institute, the average Nevada public employee pension is $64,000 a year, the highest in the nation, while the average Social Security annual benefit is $16,000. Currently more than 1,500 Nevada public employee pensioners are drawing more than $100,000 a year.

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 court case seeking PERS records, Nevada Policy Research Institute’s (NPRI) 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,” Becker wrote.

During hearings on SB224, NPRI’s policy director, Robert Fellner, noted that a tip to California’s fraud hotline resulted in the system recovering more than $200,000, 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.”

Fellner also noted the importance of disclosing whether PERS payments are for disability or retirement. A Los Angeles television station, using public records, 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.

SB224’s backers argue revealing the names of pensioners might expose them to identity theft and fraud. The Nevada Supreme Court dismissed that claim in a 2013 ruling, 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.”

Now, the secrecy is embedded in law and the public is blindered.

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 water down public school accountability

If your job is to make widgets, your supervisor will evaluate your job performance principally on how well you make widgets and how many.

But if you are a Nevada public school teacher, not so much. There is a bill wending its way through the halls of the Legislature in Carson City that would reduce the importance of the one thing teacher and administrator evaluations should be based on: pupil achievement growth — the only truly objective and measurable criteria.

When the law establishing educator evaluations was first passed in 2011 fully 50 percent of evaluations were based on pupil growth.

At some point it was reduced to 40 percent and now Senate Bill 475 proposes to reduce that to only 20 percent.

The bill would require that “instructional practice,” whatever that means, must account for 60 percent of the evaluation and “professional responsibilities” account for the other 20 percent.

Not that evaluations are all that rigorous already. According to the Nevada Department of Education, in the 2017-2018 school year only 25 out of nearly 20,000 teachers in Nevada were evaluated as “ineffective.” That’s 0.1 percent. Another 1.3 percent were pegged as “developing,” while 80 percent were rated “effective” and only 16.7 percent were rated “highly effective.” The rest were exempt from being evaluated.

The scores varied wildly from county to county. More than half the teachers in Storey and Eureka were rated “highly effective,” while less than 5 percent were awarded that rating in Lander and Pershing. In 12 counties there were no “ineffective” teachers.

SB475 further neuters the ability to weed out under-performing teachers. Existing law allows a school district not to renew the contract of a probationary teacher or certain administrators whose performance is found to be developing or ineffective.

It also requires post-probationary employees who are rated developing or ineffective for two years in a row to serve an additional probationary period.

SB475 would allow the contract cancellation of a probationary employee only if rated ineffective, and it removes the requirement for a post-probationary employee rated as developing to serve an additional probationary period.

As if this weren’t bad enough, Nevada Policy Research Institute policy director Robert Fellner reports that the state teachers union recently voted to seek to have student achievement growth to account for only 10 percent of evaluations.

My how times change. Back in 2011 the Nevada State Education Association lauded the bill that established teacher evaluation criteria and set up an oversight panel called the Teachers and Leaders Council.

In its 2011 Legislative Report Card, the union stated, “This creates a council to develop the new educator evaluation that will be based on a 4-tier structure highly effective, effective, minimally effective, and ineffective.

Another provision in the bill includes that 50% of an educator’s evaluation will be based on student achievement data. NSEA is in complete support of the Teachers & Leaders Council and pushed hard to get this bill passed and signed by the Governor.”

The bill was part of Gov. Brian Sandoval’s push that session to improve education in Nevada, which perennially ranks near the bottom of states for education performance.

Of course the union complained that funding was inadequate then as it does now, even though since 1960 Nevada has nearly tripled inflation-adjusted per pupil education spending from $3,556 to $9,165 in 2015, according to NPRI. During that time college preparedness scores have flatlined.

Fellner argues that such union efforts water down accountability. “This highlights why collective bargaining for teachers is so harmful: it perverts the democratic process such that the union’s interests dictate public policy, rather than student learning and well-being,” he writes, adding that researchers at the University of Texas recently found “unionization has a powerful negative influence on educational outcomes.”

Lawmakers expect as many as half of the bills introduced this session could die for lack of action this week. Let’s hope SB475 is one.

If not we encourage lawmakers to put the children first, as the teacher unions like to say, and nix this bill.

Failing that we encourage Gov. Steve Sisolak to live up to his stated standards of transparency and accountability and veto the bill should it land on his desk.

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.

Newspaper column: State public employee unions will bust the budget

Ramirez cartoon

While Gov. Steve Sisolak has promised no new taxes in his proposed budget for the next two years, he also plans to light the fuse on a huge tax bomb in the future.

In his State of the State speech in Carson City before lawmakers he casually  tossed out that state public employees “should be empowered to bargain collectively in the years ahead.” Since 1969 local government workers in Nevada have been allowed to form unions and collectively bargain for pay and benefits, but   not so state government employees.

Sisolak doubled down during an interview at the Smith Center in Las Vegas with the editor of the news and commentary website The Nevada Independent, saying, state public workers generally are paid less than local government workers and discussion of collective bargaining rights for state workers is long overdue.

Sisolak said, “Our state employees should be treated in a fair and respectful manner. The fact that they haven’t had a raise in 10 years and the fact they don’t have the same working conditions that other jurisdictions had. I’m coming from a county that employees did have collective bargaining … they make a lot more money. … The pay is probably 30 to 40 percent less than any other governmental entity that exists. And to attract good people at those wages is simply not going to happen.”

After editor Jon Ralston pointed out that collective bargaining would cost the state a lot more tax money, the governor responded, “We’re going to invest in our people, Jon. That’s a good thing. I don’t think that’s a downside. We’re going to invest in the people who provide services to Nevada and we’re going to have to find the resources in order to make those accommodations.”

First of all, state workers were given 3 percent cost-of-living pay increases in each of the past two years.

For years local government pay in Nevada has exceeded those in both state government employ and in the private sector, due to collective bargaining. But according to Bureau of Labor Statistics figures for the second quarter of 2018 the average weekly wage for private sector Nevadans was $908, while the local government worker was paid $1,049 and the state public employee averaged $1,097. By the way, the federal employees in Nevada averaged $1,406.

Back on Nevada Day this past year, the researchers at the Nevada Policy Research Institute crunched the Census data for 2017 and found that local government workers in Nevada were the fifth highest paid in the country compared to other local government employees, while Nevada’s private-sector workers ranked a distant 47th compared to private sector workers in other states.

“On a statewide basis, government pay and benefits cost taxpayers roughly $10 billion last year — which was equal to 80 percent of all tax revenue collected by every state and local government agency in Nevada,” noted NPRI policy director Robert Fellner. “Thus, in the event Nevada’s government pay gap continues its upward growth, the resulting tax hikes necessary to sustain such excess may become too great to bear.”

Fellner argued, “Because such outsized pay packages come at the expense of taxpayers who earn much less themselves, elected officials should consider the fairness and sustainability of continually caving in to government unions’ endless demands for even more.”

Imagine what the future will look like if state workers are allowed to form unions and bargain collectively.

Under Nevada’s collective bargaining law, if negotiations come to an impasse, an arbitrator is appointed to settle the dispute and the primary criteria for granting a union’s demands is whether the government entity has the ability to pay what is demanded. That determination is usually in favor of the union.

As we have noted in the past, none other than the icon of progressivism, Franklin D. Roosevelt, pointed out in a 1937 letter the problem with collective bargaining for public employees: “All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people …”

When the people are paid less than their servants, who is the master?

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: Local government unions create huge pay gap

It is good to be a public servant in Nevada, downright lucrative in fact.

The folks at the Nevada Policy Research Institute have crunched the Census data for 2017 and found the median earnings for local government workers in Nevada were 46 percent higher than for those in the private sector — $58,644 for local government workers per year, compared to $40,259 in the private sector. That 46 percent gap is the highest of any state in the nation.

Hawaii and California had the second and third highest gaps.

Nevada local government workers had the fifth highest wages in the country, while private-sector workers came in at a distant 47th.

NPRI is quick to point out that much of the pay disparity is due to differences in experience, education and other factors, but that does not negate the fact the Nevada gap is the highest in the nation. Also, NPRI notes that when Nevada’s local government workers health and retirement benefits and more generous paid leave are factored in the gap with the private sector widens to 57 percent.

For example, both state and local public workers contribute to the Nevada Public Employees’ Retirement System. Currently 28 percent of a worker’s salary is contributed to cover the cost of pensions — half from the taxpayers and half from the employee. The figure for police and fire employees is 40 percent to account for often shorter working careers. But many local government unions have collectively bargained to have the taxpayers pick up all of the PERS contributions, effectively adding a hidden cost not seen in salaries alone.

“On a statewide basis, government pay and benefits cost taxpayers roughly $10 billion last year — which was equal to 80 percent of all tax revenue collected by every state and local government agency in Nevada,” notes NPRI policy director Robert Fellner. “Thus, in the event Nevada’s government pay gap continues its upward growth, the resulting tax hikes necessary to sustain such excess may become too great to bear.”

Fellner argues, “Because such outsized pay packages come at the expense of taxpayers who earn much less themselves, elected officials should consider the fairness and sustainability of continually caving in to government unions’ endless demands for even more.”

Unlike state government employees, local government workers in Nevada are largely covered by union contracts. State government workers generally are paid more than those in the private sector, but less than local government employees.

In past legislative sessions, lawmakers have attempted to allow state government workers to unionize, though they should instead take away the right of local government workers to unionize. The unions hold too strong a sway over local elected officials who must bargain with the unions over wages.

None other than the icon of progressivism, Franklin D. Roosevelt, said in a 1937 letter:  “All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management.”

He went on to add, “The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people …”

Who is the servant and who is the boss?

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.

Nevada high court strengthens access to public records

In a narrow 4-3 decision Thursday the Nevada Supreme Court strengthened the public’s access to records held by government agencies, ruling that the Public Employees’ Retirement System must provide the names and pension amounts of retired public workers.

In 2013 the court ruled that PERS had to provide those records to the Reno Gazette-Journal and it did so, but the following year PERS altered its record keeping process so that names were deleted from the pension data and each record was linked only to confidential Social Security numbers. When the Nevada Policy Research Institute sought the same records in 2014 as was given to the newspaper in 2013, it was denied. PERS cited the court ruling that said it did not have to “create” a record on request.

The majority opinion was penned by Chief Justice Michael Douglas and joined by Justices Michael Cherry, Mark Gibbons and Kristina Pickering. The dissent was penned by Justice Lidia Stiglich and joined by Justices Ron Parraguirre and James Hardesty. Stiglich, who was appointed in 2016, is up for re-election on the November ballot and faces conservative District Court Judge Mathew Harter.

The majority notes that PERS’ contention would contravene the very purpose of the public records law, which is to allow the public to keep an eye on how its government officials behave and spend their money.

The opinion cited a court ruling that found “sorting a pre-existing database of information to make information intelligible does not involve the creation of a new record because … computer records found in a database rather than a file cabinet may require the application of codes or some form of programming to retrieve the information. Sorting a database by a particular data field (e.g., date, category, title) is essentially the application of codes or some form of programming, and thus does not involve creating new records or conducting research — it is just another form of searching that is within the scope of an agency’s duties …”

The majority also cited its own decision in a case called Blackjack Bonding that found “when an agency has a computer program that can readily compile the requested information, the agency is not excused from its duty to produce and disclose that information.”

In a footnote, the majority countered the contention of the dissent, saying, “The dissent argues that the creation of a computer program is not merely drawing information from a database, but rather, improperly requires the agency to conduct research. However, its reasoning ignores the realities of information storage in the digital age. As specifically recognized by the (the aforementioned court ruling), “computer records found in a database rather than a file cabinet may require the application of codes or some form of programming to retrieve the information.”

Another footnote said the majority was not overruling its previous decision about an agency not having to create a record, but clarifying the earlier holding to reflect the realities of the advancements in technology and to further the purpose underlying the public records law.

The court remanded the case to the lower court to determine precisely how the NPRI records request would be handled and what, if any, expenses the agency could charge for the production of the records.

NPRI’s Director Robert Fellner said in a press release about the case: “PERS argued that public records should be defined narrowly to only include existing documents or reports, rather than all forms of recorded information related to governmental affairs. Had the Court accepted this argument, governments across the state could simply hide information they did not wish to be made public by keeping it stored in a computer database. Thankfully, the Court upheld the plain, statutory definition of a public record to include information stored in a computer database.”

 

Newspaper column: This big piggy goes oink, oink, oink

The libertarian-leaning Nevada Policy Research Institute has published this year’s edition of its popular “The Nevada Piggy Book” — a collection of anecdotes illustrating the tendencies of state and local governments to lavishly overspend our money on inefficient and even counterproductive endeavors.

The introduction reaches the dismal conclusion that waste is endemic to government. While you and I watch our spending closely, not so with bureaucracies. “In fact, when agencies blow through their budgets, odds actually increase that politicians, in years to follow, will award them ever larger sums of tax dollars!” NPRI relates.

Take for example the decision by the Nevada Department of Transportation to award a bid of $529,000 to construct federally-approved fencing along a 37-mile stretch of U.S. 95 north of Las Vegas to keep endangered Mojave Desert Tortoises from crossing the highway and too frequently meeting their demise beneath the wheels of speeding vehicles.

But when the project was completed the U.S. Fish and Wildlife Service determined the fencing failed to meet federal standards — which called for the tortoise fencing to be at least two feet above the ground and one foot below. Some sections of the fence were no more than 8 inches above the ground and as little as 4 inches deep.

The 28-page Piggy Book reported, “Nevada taxpayers alone were forced to cover the $736,000 required to remove the existing, inadequate fencing and replace it with new fencing in line with federal regulations.”

But that’s just the beginning of this tale of waste and woe. NPRI relates that a 2017 study by researchers at the University of California, Davis said that “tortoises that haven’t adjusted to the fencing pace along them, and sometimes overheat and die.” So much for saving tortoises from becoming roadkill.

Fencing wasn’t the only problem.

It turns out, according to the Piggy Book, that a series of culverts under the highway — intended to be tortoise passages and costing $320,000 — had faulty drainage that resulted in, you guessed it, more tortoise deaths.

“Like the tortoise fencing, these culverts will also need to be reengineered and replaced,” NPRI recounts. “As of this writing, it is unclear how much all these repairs will cost, but it seems likely that state — not federal — taxpayers will be responsible for paying the bill.”

Then there is the issue of the state shelling out overtime to unionized prison correctional officers. It turns out overtime is not calculated the same way in government as in the private sector where one must work more than 40 hours to earn overtime pay.

For some government workers overtime is calculated using time “paid” instead of time worked. Paid leave — such as vacation or sick days — count toward overtime eligibility. “In other words, even if an employee took vacation time for Monday, Tuesday and Wednesday, they would still be eligible to receive overtime if they ended up working Thursday, Friday and Saturday,” NPRI explains.

For example, corrections officer Jimmy Jones received $117,551 in overtime pay on top of his $56,720 salary in one year, while corrections officer Stewart Boyer was paid $74,560 in overtime on top of his $33,496 base salary.

“In total, 19 state correctional officers received OT pay that exceeded their base salary, while 135 received OT pay that was at least 50 percent of their regular salary,” NPRI’s analysis found.

That’s just two examples.

“The examples in this book might be merely the tip of a government-spending iceberg in Nevada — but they are powerful reminders of how important it is for the public to see what, exactly, government is doing with all those never-ending tax increases,” the Piggy Book concludes. “Many of the very same government agencies that are routinely found to be wasting tax dollars also go to great lengths to keep the public in the dark when it comes to spending.”

NPRI describes itself as a non-partisan, free-market think tank that promotes public-policy ideas consistent with the principles of free enterprise, individual liberty and limited, accountable and constitutional government. If only the people we elect to represent us in Carson City and our local governing bodies would pay attention, we might have a little less waste and get to keep more of our money.

The Nevada Piggy Book can be found online at: https://www.npri.org.

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.

NPRI calls for putting teeth into public records law

“So, sue me,” seems to be the attitude of so many in Nevada government agencies when they are asked to comply with the state’s public records law.

They have no skin in the game. They just hire expensive lawyers at taxpayer expense to fight the request.

Take, for example, Nevada Policy Research Institute’s lawsuit this week over being denied Clark County School District emails relating to a possible termination of a whistleblower who reported possible test falsification. The district claimed the emails contained confidential information and refused to release anything, even though the law clearly states:

“A governmental entity that has legal custody or control of a public book or record shall not deny a request made pursuant to subsection 1 to inspect or copy or receive a copy of a public book or record on the basis that the requested public book or record contains information that is confidential if the governmental entity can redact, delete, conceal or separate the confidential information from the information included in the public book or record that is not otherwise confidential.”

NPRI Policy Director Robert Fellner was quoted in a press release as saying, “Despite state law mandating government agencies to be fully transparent to the people they ostensibly serve, CCSD knows it can violate the law with impunity, secure in the knowledge that none of its officials will ever face any penalty for their deliberate lawbreaking.”

That is why NPRI is calling on the Nevada Legislature to impose penalties on those who defy the law. Makes sense doesn’t it?

The purpose of the public records law is so the voters can hold public officials accountable when they act in a manner not in their best interest.