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.

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.”

 

 

Editorial: Sanctuary city suit makes political, not legal case

The American Civil Liberties Union of Nevada filed a lawsuit this past week in Carson City attempting to block the voters from having a say on an initiative petition that would amend the state Constitution to prohibit sanctuary cities in Nevada.

ACLU of Nevada Executive Director Tod Story was quoted in a press release as saying, “This pointless, poorly crafted petition would only serve to alienate Nevada’s immigrant communities from local police officers and vital government services, making our communities more vulnerable to crime and overall worse off.”

Frankly, that is a political argument as to whether the voters should reject the amendment, not a legal argument for preventing the voters from voicing their opinions.

The petition filed with the Nevada Secretary of State in October is being advanced by the Prevent Sanctuary Cities Political Action Committee, which is headed up by Republican state Senate leader Michael Roberson.

The description of effect of the initiative reads, “If enacted, this measure will add a new section to the Nevada Constitution that will prohibit the legislature, a county or city from enacting a law or ordinance, or otherwise adopting, enforcing or endorsing a policy which prohibits or discourages cooperation with the enforcement of the immigration laws of the United States. To become effective this measure must be approved by a majority voters in two general elections.”

The press was not able to obtain a reaction from Roberson about the ACLU suit.

To put the measure on the 2018 ballot backers must obtain 112,544 signatures by June. It would need to be approved by a majority in 2018 and 2020 to become law.

The ACLU press release also quoted suit plaintiff Xiomara Rodriguez of the nonprofit Tu Casa Latina, “We know that this policy will endanger immigrant communities. We’ve already seen victims of workplace harassment or domestic violence refuse to call the police because they’re afraid of being torn away from their families. If local police become immigration agents, there’s a very real possibility these communities will face more abuse.”

Former Washoe County Sheriff Michael Haley, also a plaintiff in the suit, was quoted as saying, “We know that compelling local law enforcement to enforce federal immigration law is actually harmful to public safety. Police are less likely to receive valuable information or tips from communities that are terrified of facing possible deportation. It has the potential to increase crime and harm the entire community. Fundamentally this initiative undermines our ability to keep our communities safe.”

Again, political arguments not legal ones. Any other laws the police should ignore in order to endear themselves with certain communities?

During this past legislative session, Democrats tried to push legislation limiting the role of law enforcement in cooperating with immigration enforcement agencies. Roberson fought the efforts and the bill died.

The only legal argument the ACLU makes is that the petition is deceptive or misleading because it fails to provide any information about the effects of enactment. Perhaps that is because any such effort to do so would be wildly speculative and subject to being challenged by the likes of the ACLU no matter what was said.

The courts should shunt this attempt to prevent the voters from deciding this matter. Let the voters decide, one way or the other.

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.

ACLU suit over education savings accounts is a challenge to parental rights

Many of the news stories about the ACLU suing to block implementation of Nevada’s education savings accounts (ESAs), approved by this past Legislature as Senate Bill 302, mention that such accounts were declared unconstitutional in Colorado recently. Like Nevada, Colorado’s state constitution includes a Blaine Amendment prohibiting the use of tax money for secular purposes.

Few bother to mention that Arizona also has a Blaine Amendment in its constitution, but the Arizona Court of Appeals upheld Arizona’s ESAs two years ago.

That court found that ESAs were neutral toward religion by leaving spending decisions to parents, not the state:

The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents. The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs. … The ESA is a system of private choice that does not have the effect of advancing religion. Where ESA funds are spent depends solely upon how parents choose to educate their children.  Eligible school children may choose to remain in public school, attend a religious school, or a nonreligious private school.

Yet the morning Las Vegas newspaper quotes Tod Story, executive director for the ACLU of Nevada, as saying, “The education savings account law passed this last legislative session tears down the wall separating church and state erected in Nevada’s constitution.”

The Nevada Constitution says: “No sectarian instruction shall be imparted or tolerated in any school or University that may be established under this Constitution.” It also says, “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.”

The ACLU lawsuit argues: “The Program establishes a system whereby, instead of enrolling their children in public schools, parents may obtain and use public money to pay for enrollment in private religious institutions. This is exactly what the Nevada Constitution forbids.”

Once it is in the hands of the parents, is it public money?

After the lawsuit was announced, the Institute for Justice (IJ), which advised Nevada lawmakers drafting the ESA law, issued a statement. Senior Attorney Tim Keller said:

We worked closely with the state legislature throughout the drafting process to ensure the program’s constitutionality, and we fully intend to defend it against this baseless and cynical lawsuit. Nevada’s Education Savings Account (ESA) Program was enacted to help parents and children whose needs are not being met in their current public schools, and we will work with them to intervene in this lawsuit and defeat it.

The Supreme Court of the United States, as well as numerous state supreme courts, have already held that educational choice programs, like Nevada’s ESA Program, are constitutional. We expect the same from Nevada courts.

IJ helped Arizona defend its ESA program. Keller noted that, like Arizona’s ESA program, “Nevada’s ESA program does not set aside a single dollar for religious purposes, but instead gives parents a genuine choice as to how to spend the money deposited in their child’s education savings account.”

Patricia Levesque, CEO of the Foundation for Excellence in Education, said of the ACLU suit, “It is ironic that the ACLU pledges itself to ‘defend and preserve the individual rights and liberties guaranteed to every person. … Yet today the ACLU opposes giving every parent in Nevada the right to decide where his or her child goes to school. There is no more fundamental right in this country than trying to create a better life for your child.”

The morning paper also noted that a group calling itself Educate Nevada Now also plans a suit to try to strike the ESA law, but will argue that the law runs counter to a constitutional requirement that the state “sufficiently” fund public schools, a rather nebulous concept.

The claim that the law will strip desperately needed funding from already starving local school budgets is blatantly false. It will relieve those schools of overcrowding and will only cost them a portion of the state’s Distributive School Account. Each school would still get 10 percent of state funding for most students who leave, as well as local and federal funds for students zoned in that school but who do not attend. Schools would actually get more funding per pupil for those who remain in public schools and will not have to build as many new schools.

The law allows the state Treasurer to set up savings accounts for parents who choose to take their children out of public schools. For most the annual account will be equal to 90 percent of the public school per-pupil state funding allotment or a little more than $5,000. Parents earning less than 185 percent of the federal poverty level would get 100 percent of state funding.

The money can be spent on tuition at private schools — even church-operated schools, according to backers — textbooks, transportation, tutoring, testing, curriculum, homeschooling and supplemental materials.

The law goes into effect on Jan. 1, but a qualifying child must have “attended a public school for 100 consecutive school days to enter into an agreement …”

Though opponents of the law say there will be no accountability for the quality of education of those receiving ESAs, the law requires students with ESAs to take standardized examinations in math and English and make the results available to the state Department of Education, which must publish aggregate data on the results.

Republican Attorney General Adam Laxalt is tasked with defending the Nevada law from such court challenge. His office has a general policy of not commenting on pending litigation.

ACLU announces lawsuit against education savings account law. (The R-J is now so cheap the photo credit and the story byline are the same.)