By Matt Ward
Nye County’s district attorney accused the Pahrump town board and its attorney of violating the state’s open meeting law when it made its decision to sue the county last month.
In a motion filed Tuesday in District Court, DA Brian Kunzi urged the court to dismiss the town’s lawsuit because the town, he alleges, failed to properly notice the public of its intentions on meeting agendas prior to filing its lawsuit.
Failure to comply with the open meetings law nullifies any claim for relief made on behalf of the town, the motion states.
Two agenda items, both appearing on the town’s July 24 and Aug. 14 agendas, purportedly “noticed” the public that the town board was going to both meet in closed session to receive advice on “potential or existing litigation“ as well as discuss or take action on that advice in public afterward.
News of the town’s lawsuit, however, didn’t surface until last week when the Pahrump Valley Times randomly inquired about any recent litigation naming the county.
The town filed its lawsuit on Aug. 13. The town’s complaint alleges that county commissioners failed to follow state law on July 3 when they approved a November ballot question that gives Pahrump voters the choice to return the town board to advisory board status. The town’s complaint suggests commissioners violated the law by not putting on the record their belief that an advisory town board is the best form of government for Pahrump — commissioners opted not to debate the substance of the ballot question but instead debated whether to put it before voters or not.
Kunzi disagrees with the town attorney’s interpretation of the statute governing that aspect of a county commission’s authority.
Regardless, it’s a moot point, Kunzi says, because the town broke the open meeting law when it first considered its lawsuit.
“The action taken by the town attorney to initiate this litigation without first having this matter properly noticed on an agenda of the town board voids the actions and warrants dismissal. This blatant and willful disregard of the requirements of the Nevada Open Meeting Law cannot and should not be condoned,” the county’s motion to dismiss states.
The town’s contract counsel, Bret Meich, with Reno law firm Armstrong Teasdale, disputes Kunzi’s characterization of the town’s actions leading up to the lawsuit. He says he discussed the litigation with board members during closed session and then board members voted to move forward in public right afterward. He says the town didn’t go out of its way to communicate its intent to anyone for fear of tipping off county officials.
“The board was advised of the potential litigation, given the option to pursue the legal issue or not to pursue the legal issue and then the non-meeting closed session was adjourned and we entered into open session. The town board made a motion to approve the recommendation of the town attorney to proceed. No specifics were set forth in the agenda item for the specific purpose of not giving a heads up to anyone before the pleadings were prepared,” Meich said.
Town Board Chair Vicky Parker said she couldn’t comment on the matter because it was pending before the court, but did agree that it would be a correct assumption that town board members would approve by public vote any effort to enter into litigation with any person or entity before such litigation was filed.
“The district attorney is trying to use the Open Meeting Law, which is not suitable in this case, to delay consideration of the substance of our complaint,” Meich said. “We would have preferred to work with the county to achieve an expedited resolution of the substance of the complaint. Unfortunately, the district attorney has chosen to delay the consideration of the substance of the complaint, instead filing a baseless allegation that the town board did not vote to initiate the lawsuit, which it did.”
Kunzi’s motion suggests the town’s actions were meant to take advantage of the election’s timing.
“The rules of procedure and the applicable open meeting law requirements as applied to this case are of the most basic and simple nature, thus calling into question whether failing to comply signifies a deliberate attempt to circumvent the proper process. These basic deficiencies and the actions taken in the prosecution of this matter lead the County to believe there was a design to force a hurried resolution of this question under the pressures of time created by the upcoming election,” the county’s motion reads.
The district attorney also complains in his motion that the wrong party is named as a plaintiff — the Town of Pahrump is named when the DA suggests the Pahrump Town Board is the proper party. Kunzi also takes further exception with the town’s meeting agendas, calling into question the vague language used to describe pending board actions.
“A most startling observation of the agendas posted by the Town, that are presumably being approved by the town attorney, is the action item suggesting the town board can go into closed session to discuss litigation matters with the town attorney and then return back to the meeting to take action on an item that has not been more clearly and completely described on the agenda,” the motion reads. “This method of running a meeting demonstrates a most cavalier attitude about the importance of complying with the open meeting law.”
Meich says town board members may revisit the subject in order to undercut Kunzi’s argument.
“The town board may, I’ll leave it up to the town board, but the town board may re-agendize at the next meeting the same issue just to get it off, to prevent the county from further pursuing this baseless allegation. It’s perfectly possible that we will have an agenda item with more specific language on the item itself for the board’s consideration at the next meeting. But again, we don’t think that is required under the law. It is just to avoid having this fight,” Meich said.
Regardless, the town attorney said he hopes to file a response to Kunzi’s motion in court in the next several days or so. A hearing date in front of a judge has not been set.