Dennis Myers: Officials can be charged for obeying lawyer

On March 27, the Nevada attorney general issued an opinion alleging that the mayor and three city council members of Boulder City violated the open meeting law by meeting at the Boulder City Hotel with Huyn Kim, later appointed the city’s finance director.

It should be noted at the outset that the four officials were monumentally boneheaded by gathering in such a fashion and especially in roping Huyn Kim into the awkward situation.

Having said that, however, what fascinates me is what Celia Shortt Goodyear of the Boulder City Review (a sibling publication to the Pahrump Valley Times) reported on April 12: “City Attorney Dave Olsen said that he and City Clerk Lorene Krumm had advised council members before the Sept. 21, 2016, incident that this type of gathering was NOT a meeting, according to the law.” The emphasis is mine.

Boulder City is paying the price of a dispute that occurred in Washoe County in July 2014.

When an anonymous informant told some school district officials that School Superintendent Pedro Martinez did not have the account credentials he claimed, they and some school board members who were meeting at the time on other matters called Martinez in and asked him to clear up the matter.

The school board members were told by their lawyer that they were on firm legal ground in meeting on the matter without an advance agenda.

Martinez responded in what officials later characterized as an unprofessional manner, threatened to bring big-name figures like the governor and an Obama cabinet member against the school district, and stalked off the property. He was apparently under the impression he’d been fired, which he had not, only suspended because of his demeanor and in order to clear up the matter of his credentials.

All heck broke loose in the community, with Nevada first lady Kathleen Sandoval, a local developer, and the Reno Gazette-Journal leading a campaign to whip up anger against the school board. An open meeting complaint was filed.

At the time, the attorney general was Catherine Cortez Masto, who a year earlier had written that “public bodies should be encouraged to rely upon advice of counsel and not be punished for doing so.”

That was an expression of public policy, because the Nevada Open Meeting Manual, issued by the attorney general’s office, reads that “when members of a public body rely on advice of counsel, they should not be held to know that a violation occurred.” The manual specifically says that this advice is something “upon which a member can rely as to whether … the meeting is in violation of the open meeting law.”

Cortez Masto’s staff reportedly urged her to drop the matter with a warning. After all, at least four different school board members told AG office investigators that their lawyer approved the meeting.

Unwilling or afraid to step in front of an angry public bandwagon, Cortez Masto brought charges and won convictions against the school board members, who were fined for following the advice of their attorney. Incredibly, state district judge David Hardy found nothing wrong with this proceeding. Reno Gazette-Journal reporters have expressed delight at the confusion they have brought to state law. Others warned against the hazardous precedent.

Up until then, the state policy had been clear. Now it is far from clear. No official in the state is safe following the advice of his or her counsel, as the Boulder City officials have just learned. After Cortez Masto departed the attorney general’s office, her successor Adam Laxalt, followed her example.

It was deputy attorney general George Taylor who, in accordance with Cortez Masto’s instructions, brought the charges against the Washoe school board members.

In 2013, Taylor wrote in the state bar journal that “public body members may be protected from penalties if the member has sought advice of counsel and acted in accordance with the advice. The Legislature did not enact penalties to discourage participation by individuals on state and local government public bodies. Volunteers and elected officials need not fear civil or criminal charges…”

Well, maybe they do, after all.

Dennis Myers is an award-winning journalist who has reported on Nevada’s capital, government and politics for several decades. He has also served as Nevada’s chief deputy secretary of state.