Analysis: Resolving open meeting law complaints in Nevada can take years — and is taking longer

Editor’s Note: This story is a collaboration between The Nevada Independent and Carson Now.

In May 2021, Tony Stephenson filed an open meeting law complaint against the Lyon County Commission, alleging that the board violated the state’s bedrock open government law by not fully disclosing the legislation it planned to lobby against ahead of commission meetings.

Stephenson, the chair of the county’s Democratic Party, eventually got his answer — the attorney general’s office determined that the commission’s votes to officially oppose bills related to tiny homes and criminal charges for obtaining “ghost guns” being considered in the 2021 Legislature were violations of state law, and required the board to include a notice of the violation on its next agenda.

The problem?

That opinion was published in January 2023 — almost two years after the complaint was filed, and more than 17 months since the end of the 2021 legislative session.

“It's unfortunate, but it's reality,” Stephenson said in an interview. “Because of [the time between complaint and opinion], folks lose faith, and feel that no matter what we do, the odds are stacked against us.”

The long wait times on open meeting law (OML) complaints are playing out across the state.

An analysis by The Nevada Independent and Carson Now found that since 2022, OML complaints filed with the attorney general’s office have, on average, not been fully investigated until 17 months after the alleged violation occurred (complaints must generally be filed within 120 days). And the length of time needed to determine if an OML violation occurred has gotten longer — the office used to wrap up investigations within weeks of receiving a complaint and, as recently as 2018, the investigations lasted an average of five months.

In a statement, Attorney General Aaron Ford said he plans to ask for more resources and personnel to expedite responses to OML complaints in next year’s legislative session.

“I have ongoing discussions with my staff on their needs in relation to their duties, and in doing so it has become clear that we need additional resources to augment our OML complaint and investigation processes,” the statement said. “Though we do need further resources, I remain immensely proud of the work my [deputies] do in relation to alleged OML violations and complaints.”

This analysis sheds more light on Nevada’s OML complaint process — the enforcement mechanism for the state’s set of so-called “sunshine” laws governing access to meetings held by public bodies, including the prior notice of a meeting at least three working days beforehand, the production of meeting minutes, allowing public comment and adherence to the meeting’s agenda. A 2016 legislative research brief on the state’s open meeting laws touted Nevada as having “one of the strongest open meeting laws” in the nation given that it has relatively few exemptions (most notably, the Legislature).

But how the attorney general’s office responds to OML complaints — and how long it should take for complaints to be fully resolved — is a process not explicitly spelled out in state law. For example, the state’s Open Meeting Law Task Force — which meets between legislative sessions to review and make suggestions on changes to the open meeting law — does not address how the office investigates complaints, two former members said in interviews.

The longer wait times stem from an increase in cases and changes in how the office handles OML complaints, Rosalie Bordelove, a chief deputy attorney general and the top lawyer responsible for responding to complaints, said in an interview.

The office used to have one point person responsible for responding to all OML complaints — deputy attorney general George Taylor — which resulted in cases being resolved much quicker, the analysis found. The office eventually decided to include more deputy attorneys general in the process, Bordelove said.

Now, as many as six deputies respond to open meeting law complaints on top of their existing duties, which typically consist of providing legal guidance to state agencies and representing them in lawsuits. Deputies are assigned OML cases based on their availability and whether they have a conflict of interest, Bordelove said.

John Pelissero, a government ethics expert at Santa Clara University, said in an interview that there should be a response process that “reinforces trust in government.”

“I don't think that the public's interest is necessarily served by having these complaint investigations take a year or longer,” Pelissero said. “If the resolution of these complaints will take 18 months, two years, that really doesn't serve the trust that people have in government and likely makes them more suspicious.”

The complaint process

Nevadans who believe there has been a violation of the open meeting law can file a complaint with the attorney general’s office. The complaint must be filed within 120 days of the meeting in question, unless a meeting was “secret” and not known to be happening, in which case complaints must be filed within one year of the meeting's date.

Complaints make their way to Bordelove, who decides whether to investigate the complaint.

If Bordelove calls for an investigation — which is when the complaint, if substantiated, would be a violation — the case is assigned to a deputy attorney general who is trained on how to respond to the complaints. The deputy then requests any information needed from the public body and, depending on the case, may need to speak with witnesses or ask for additional information from the person who filed the complaint. Eventually, the office determines whether a violation has occurred and releases the opinion on its website.

If public officials participated in a meeting while knowing that there was a violation of the law, they are subject to fines ranging from $500 to $2,500, depending on if they have prior offenses. Typically, a finding of wrongdoing only requires that the public body acknowledge the violation on its next agenda.

If the attorney general’s office and/or private citizens want to void an action taken in a meeting believed to have been held in violation of the open meeting law, a lawsuit must be filed within 60 days of the meeting in question.

While complaints can take years to be fully investigated, state officials will determine if they want to file a lawsuit before the 60-day limit runs out, as long as they receive the complaint quickly enough to conduct a preliminary investigation, Bordelove said.

‘They quit paying attention’

Kurt Hildebrand, the editor of The Record Courier newspaper in Gardnerville, has been following (and submitting) open meeting law complaints for nearly 40 years.

However, in recent years, Hildebrand noted a significant decline in the office’s production of timely opinions and a lack of communication on the status of complaints and when they might be resolved, to the extent that he has given up entirely on filing the complaints.

“The fact of the matter is, I quit doing it because they quit paying attention,” he said.

Last year, the Douglas County School Board committed what Hildebrand called a clear example of an OML violation.

Several Douglas County residents filed a lawsuit and complaints with the attorney general’s office last year over concerns that members of the board had for months been corresponding via email since January 2023 to elect current board President Susan Jansen, oust the district’s long-standing legal counsel in order to hire Reno-based attorney Joey Gilbert, fire the superintendent and pass anti-transgender school policies, among other objectives.

Ten open meeting law complaints were filed against the board in 2023. No findings from the attorney general’s office regarding the complaints have been released.

During that same period of time, the board successfully voted Jansen in as president; fired the district’s legal counsel to hire Gilbert; driven away the superintendent as well as a board trustee; and attempted to hire a new superintendent with a lengthy record of mismanagement and criminal charges.

“This was a pretty easy (judgment),” Hildebrand said. “We know for a fact they were communicating off book, outside the public’s eye. The people filing the complaint had done all the legwork for (the attorney general’s office).”

Stephenson, the Lyon County Democrat, also waited almost two years to receive a response on a separate complaint filed against the Lyon County Board of County Commissioners in July 2021.

His complaint centered around a commission agenda item that said a discussion would take place regarding the renaming of a street in Dayton. During the meeting, it was revealed that the suggested name for the street was “Pres. Trump Way,” and was initially approved in a 4-1 vote.

Following public outcry from the community and multiple open meeting law violation complaints filed, the commissioners rolled back the decision at the next meeting, ultimately choosing instead to rename the justice complex in Yerington the Donald J. Trump Justice Complex.

Stephenson said while he was awaiting judgment on the complaint, he initiated contact with the attorney general’s office twice but heard nothing until the office determined in September 2023 that there was no violation. [Editor’s Note: A reporter on this story was among the people who filed this complaint.]

Stephenson said he thinks rural Nevadans have to wait especially long times for their OML complaints to be resolved, though there is not a significant difference between investigation durations for rural versus urban complaints, according to the analysis.

Still, the long wait times between complaints and resolutions undermines the intent of the law, Hildebrand said.

“Our means to turn that flashlight on in those corners is the Nevada Open Meeting Law, and if we can’t use that, then there’s not a thing any of us can do,” Hildebrand said.

— This story is used with permission of The Nevada Independent. Go here for updates to this and other Nevada Independent stories.