October 2009

Nevada Open Meeting Nevada Open Meeting LawLaw

Nathan EdwardsNathan Edwards

Deputy District AttorneyDeputy District Attorney

Washoe County District Attorney’s OfficeWashoe County District Attorney’s Office

October 2009

Open Meeting LawOpen Meeting Law

Is it worth it? Must local governments give Is it worth it? Must local governments give public notice before deciding a matter?public notice before deciding a matter?

Must every meeting be agendized? Must every meeting be agendized?

October 2009

SUNSHINE SUNSHINE •• The “People’s Business,” conducted by The “People’s Business,” conducted by

public bodies, shall be open to the public bodies, shall be open to the public. Thus, the Open Meeting Law public. Thus, the Open Meeting Law applies to all applies to all meetingsmeetings of a of a public public bodybody at which deliberation takes place at which deliberation takes place and/or and/or action action isis taken….taken….

NRS 241.010, NRS 241.010, et. seq.et. seq.

October 2009

What Is a Public Body?What Is a Public Body?

Any administrative, advisory, executive or Any administrative, advisory, executive or legislative body of the State or a local legislative body of the State or a local government which expends or disburses government which expends or disburses or is or is supported in whole or in part by tax revenuesupported in whole or in part by tax revenue or or which adviseswhich advises or makes recommendationsor makes recommendations to to any entity that expends or disburses or is any entity that expends or disburses or is supported in whole or in part by tax revenuesupported in whole or in part by tax revenue

CABs have advisory powerCABs have advisory power Legislature and Judiciary ExemptedLegislature and Judiciary Exempted

October 2009

What Is a Meeting?What Is a Meeting?

Gathering of members of a public body in Gathering of members of a public body in which a quorum is present to deliberate which a quorum is present to deliberate toward a decision or to take action on any toward a decision or to take action on any matter over which the public body has matter over which the public body has supervision, control, jurisdiction or supervision, control, jurisdiction or advisory power.advisory power.

October 2009

Meeting (continued)Meeting (continued) A series of gatherings of members of a public A series of gatherings of members of a public

body at whichbody at which Less than a quorum is present at any individual Less than a quorum is present at any individual

gathering;gathering; The members attending the individual gatherings The members attending the individual gatherings

collectively constitute a quorum; collectively constitute a quorum; andand The series of gatherings was held with the specific The series of gatherings was held with the specific

intent to avoid the provisions of the law.intent to avoid the provisions of the law.

October 2009

ExceptionsExceptions

Social Functions Social Functions If members do not deliberate toward a decision or If members do not deliberate toward a decision or

take action on any matter over which the public body take action on any matter over which the public body to which they belong has control, supervision, to which they belong has control, supervision, jurisdiction or advisory powerjurisdiction or advisory power

Attorney-Client CommunicationAttorney-Client Communication To receive information from the public body’s attorney To receive information from the public body’s attorney

and to deliberate on potential or existing litigation on a and to deliberate on potential or existing litigation on a matter over which the body has control, supervision, matter over which the body has control, supervision, jurisdiction or advisory powerjurisdiction or advisory power

October 2009

What Constitutes a Quorum?What Constitutes a Quorum?

A simple majority of the constituent A simple majority of the constituent membership of a public body unless membership of a public body unless another proportion is established by lawanother proportion is established by law Elected body requires majority of full Elected body requires majority of full

membership for affirmative actionmembership for affirmative action Appointed body requires majority of quorum Appointed body requires majority of quorum

for any actionfor any action

October 2009

What Constitutes an Action?What Constitutes an Action?

A decision made by a majority of members A decision made by a majority of members present during a meeting of a public bodypresent during a meeting of a public body

A commitment or promise made by a A commitment or promise made by a majority of members of a public body majority of members of a public body during a meetingduring a meeting

October 2009

Action (continued)Action (continued)

Serial Decision-making Constitutes a Serial Decision-making Constitutes a ViolationViolation Requires a majority of the membersRequires a majority of the members Applies to Communications in Writing, i.e., Applies to Communications in Writing, i.e.,

Letters and E-mailsLetters and E-mails Includes Discussions by and among Members Includes Discussions by and among Members

about a Matter to be Heardabout a Matter to be Heard

October 2009

What Constitutes Notice?What Constitutes Notice? Written notice, to include:Written notice, to include:

Time, place and location of meetingTime, place and location of meeting List of locations where notice has been List of locations where notice has been

postedposted An agenda, to include:An agenda, to include:

• Clear and complete statement of topics scheduled Clear and complete statement of topics scheduled to be considered during meetingto be considered during meeting

• Indication of those items on which action may be Indication of those items on which action may be takentaken

• A public comment periodA public comment period

October 2009

Notice (continued)Notice (continued)

Notice to be posted at principal office of Notice to be posted at principal office of public body or building at which meeting is public body or building at which meeting is to be heldto be held

Not less than three additional separate Not less than three additional separate and prominent places within jurisdictionand prominent places within jurisdiction

Not later than 9 a.m. of third working day Not later than 9 a.m. of third working day prior to meetingprior to meeting

October 2009

Notice (Continued)Notice (Continued)

Delivered to the postal service used by the Delivered to the postal service used by the public body not later than 9 a.m. of the public body not later than 9 a.m. of the third working day prior to the meetingthird working day prior to the meeting

If agreed by requestor, delivered by e-mail If agreed by requestor, delivered by e-mail not later than 9 a.m. of the third working not later than 9 a.m. of the third working day prior to the meetingday prior to the meeting

Supplemental posting on website, if Supplemental posting on website, if availableavailable

October 2009

Other RequirementsOther Requirements Public body must make available, upon Public body must make available, upon

request, and at no charge:request, and at no charge: A copy of the agendaA copy of the agenda A copy of any proposed ordinance or A copy of any proposed ordinance or

regulation to be discussed at meetingregulation to be discussed at meeting Any other supporting material provided to Any other supporting material provided to

public body public body May provide by electronic mailMay provide by electronic mail

October 2009

ExceptionsExceptions

Confidential documentsConfidential documents Materials not yet provided to membersMaterials not yet provided to members

CaveatCaveat: Unless confidential by law or : Unless confidential by law or subject to an attorney-client privilege, subject to an attorney-client privilege, materials must be available to public at materials must be available to public at time provided to memberstime provided to members

October 2009

Emergency ItemsEmergency Items Emergency means – as stated on the Emergency means – as stated on the

recordrecord An unforeseen circumstance which An unforeseen circumstance which

requires immediate action and includes, requires immediate action and includes, but is not limited to,but is not limited to,• Disasters; orDisasters; or• Impairment of health or safetyImpairment of health or safety• Loss of money or grant opportunityLoss of money or grant opportunity

October 2009

Other IssuesOther Issues Time of Meeting and Time CertainsTime of Meeting and Time Certains CancellationsCancellations No QuorumNo Quorum Accommodations for DisabledAccommodations for Disabled Closed MeetingsClosed Meetings Special notice when taking property or Special notice when taking property or

administrative action against a personadministrative action against a person

October 2009

Public CommentPublic Comment Must be on agenda, but placement up to public Must be on agenda, but placement up to public

bodybody Not limited to only one public comment periodNot limited to only one public comment period May not circumscribe content of speech on May not circumscribe content of speech on

public comment except:public comment except: Comments may be required to be directed to board as Comments may be required to be directed to board as

a whole – no personal attacksa whole – no personal attacks Comments may be limited to matters not on the Comments may be limited to matters not on the

agenda as long as comment will be allowed at time of agenda as long as comment will be allowed at time of agenda itemagenda item

October 2009

Disruptive BehaviorDisruptive Behavior

Public body may adopt rules governing Public body may adopt rules governing public comment and input on agenda public comment and input on agenda itemsitems

Rules may not be based upon content of a Rules may not be based upon content of a person’s speech/commentperson’s speech/comment

Warning appropriateWarning appropriate Removal not a violationRemoval not a violation

October 2009

Minutes and Public AccessMinutes and Public Access Minutes must include, at minimum:Minutes must include, at minimum:

Date, time and place of meetingDate, time and place of meeting Members present and those absentMembers present and those absent Substance of matters discussed or decided and Substance of matters discussed or decided and

record of any voterecord of any vote Substance of comments of member of general public, Substance of comments of member of general public,

if requested, and copy of written materials, if any.if requested, and copy of written materials, if any. Any other matter if requested by member of public Any other matter if requested by member of public

bodybody

October 2009

Minutes (continued)Minutes (continued)

To be available for inspection within 30 To be available for inspection within 30 days of meeting (even if in draft form)days of meeting (even if in draft form)

Maintained for 5 years; to be archivedMaintained for 5 years; to be archived Available to subject of closed session Available to subject of closed session

upon request or if confidentiality waivedupon request or if confidentiality waived

October 2009

Recorded and/or AudiotapedRecorded and/or Audiotaped

The meeting may be recorded or audio-The meeting may be recorded or audio-taped by third party - as long as not taped by third party - as long as not disruptive of meetingdisruptive of meeting

Tape must be retained for at least 1 yearTape must be retained for at least 1 year Tape must be made available to public – Tape must be made available to public –

at any time following meetingat any time following meeting

October 2009

What Happens if Law Violated?What Happens if Law Violated? Attorney General may bring action to:Attorney General may bring action to:

Have action declared void (60 days)Have action declared void (60 days) Obtain injunctive relief to require compliance Obtain injunctive relief to require compliance

with law (120 days)with law (120 days) Bring a criminal action (6 months)Bring a criminal action (6 months)

Civil action may be maintained by other Civil action may be maintained by other than Attorney Generalthan Attorney General

October 2009

Violation (continued)Violation (continued)

MisdemeanorMisdemeanor Member attending a meeting where action is Member attending a meeting where action is

taken in violation of law (with knowledge of taken in violation of law (with knowledge of violation)violation)

Wrongful exclusion of person from meetingWrongful exclusion of person from meeting

October 2009

Other Meeting MattersOther Meeting Matters

Correction of MinutesCorrection of Minutes Preparation of AgendaPreparation of Agenda

October 2009

Final CommentsFinal Comments

Drowning under the Drowning under the open meeting law? open meeting law? Let staff or counsel be Let staff or counsel be your oars: knowledge, your oars: knowledge, experience, advice.experience, advice.

October 2009

Who to ContactWho to Contact Bob WebbBob Webb

328-3623; 328-3623; bwebb@washoecounty.usbwebb@washoecounty.us Sheri IngleySheri Ingley

328-3612; 328-3612; singley@washoecounty.ussingley@washoecounty.us Nathan EdwardsNathan Edwards

337-5700; 337-5700; nedwards@da.washoecounty.usnedwards@da.washoecounty.us

October 2009

Questions???Questions???