Understanding Nevada Open Meeting Law and Penalties
This document provides a comprehensive overview of the Nevada Open Meeting Law (OML) tailored for the Nevada Commission on Autism Spectrum Disorders. It covers the relevance of OML, personal and practical overlaps, public participation, understanding roles, ensuring transparency, and related penalties for violations. The content emphasizes the importance of compliance, outlines potential penalties for violations, and highlights the need for transparency in public meetings.
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OPEN MEETING LAW PRIMER Senior Deputy Attorney General Homa S. Woodrum NEVADA COMMISSION ON AUTISM SPECTRUM DISORDERS (ASD) MEETING MAY 31, 2023 Boards and Open Government Division
ROADMAP Relevance of OML & Related Penalties Definitions Openness & Agenda Language Public Comment & Remote Technology Resources Questions Note: As this presentation is tailored to Commission members and abbreviated for time constraints and therefore does not include information that would be applicable to Commission staff, such as posting requirements/timing, contents of minutes, and retention of records or subjects that are not generally applicable to this Commission, such as employment by boards, closed meetings, or the like.
OPEN MEETING LAW OVERLAP: PERSONAL AND PRACTICAL Personal/Entity Participation in Public Processes Public comment Service with a public body Interactions with other public entities Tracking and Researching Regulation OML has procedural overlap with rulemaking Licensing Boards Awareness of When OML Does Not Apply
How would a member of the public. . . . . .be able to attend and participate? . . .be able to understand what took place after the fact? OPEN MEETING LAW PERSPECTIVES How can members of a public body. . . . . .know the scope of their role? . . .ensure transparency?
Action taken in violation of Open Meeting Law is void. A public body may try to correct a violation but there are related steps and considerations (it is still a good idea to try, however). PENALTIES Misdemeanor (NRS 241.040) Each member of the public body who attends the meeting where the violation happens, has knowledge of the violation, and participates in the violation. Wrongful exclusion of individuals from a meeting.
Administrative fine for attendance and knowing participation in a violation not to exceed: $1,000 for a second offense; and $2,500 for a third or subsequent offense. $500 for a first offense; PENALTIES (CONT.) No criminal penalty or administrative fine if the member violates provisions as a result of legal advice provided by an attorney employed or retained by the public body.
OPEN ACTION, OPEN DELIBERATION A public body exists to aid in the conduct of the people s business and the law intends that their actions be taken openly and that their deliberations be conducted openly. See NRS 241.010 Also, regarding records: The purpose of this chapter is to foster democratic principles by providing members of the public with prompt access to inspect, copy, or receive a copy of public books and records to the extent permitted by law. See NRS 239.001
OPEN ACTION, OPEN DELIBERATION A public body exists to aid in the conduct of the people s business and the law intends that their actions be taken openly and that their deliberations be conducted openly. See NRS 241.010 Seems simple enough. . . What is a public body? What is an action? What counts as deliberation? What is a meeting? Could a well-meaning committee member accidentally have a meeting or take an action? How does that affect openness/transparency?
Action: A decision, promise, or vote Deliberation: Considering or reflecting on a subject, including fact exchanges Public Body: Two or more people funded or using tax revenue or appointed through state or local government mechanisms DEFINITIONS Quorum: A simple majority of members unless otherwise specified Meeting: In person, remote, or virtual gathering to deliberate or take action where the Public Body has power
A decision, a promise, or a vote involving a majority of members present (including electronically). See NRS 241.015(1). _________________________________________ ACTION Watch for. . . - Inadvertent action (versus discussion only) -Action in a meeting without quorum or without notice
Collective examination, weighing, and reflection upon reasons for or against an action. This includes discussion and exchange of facts, even if preliminary. See NRS 241.015(2). DELIBERATION _________________________________________ Take advantage of agenda setting options to seek presentations or provision of information.
Administrative, advisory, executive, or legislative state or local government entity with at least two people which spends or distributes or is supported even in part by tax revenue. This includes entities created by state or local law or regulation, a formal resolution, executive order. A board, commission, or committee with at least two people appointed by the Governor (or the Governor s direction) if it has at least two members who are not employees of the executive branch, or which otherwise meets the public body definition, or a public officer under direction from the executive branch if at least two members are not employed by the public officer. PUBLIC BODY A limited purpose association for creation of a rural agricultural residential common interest community.
A subcommittee or working group where two or more persons would fall under one of the other definitions of a public body if: The group is supported by staff members of the public body or PUBLIC BODY (CONT.) The working group is authorized to make a recommendation to the public body for action. See NRS 241.015(4) and NRS 241.016.
Simple majority of membership or another proportion established by law. (For example, some committees require a majority of voting members for quorum.) See NRS 241.015(5). Unless specified in the mechanism (such as a statute) creating the meeting, proxies are not allowed. If a member cannot make a meeting where this is the case, their unavailability may force rescheduling meetings. See NRS 241.025 ____________________________________ Take steps to ensure accidental quorums (such as group e-mail threads) do not occur and endanger the ultimate actions taken. QUORUM
In person or virtual (telephone, email, etc.) gathering of members of a public body with a quorum to take action or deliberate on a subject the public body can cover (supervise, control, advise or have jurisdiction). MEETING See NRS 241.015(3) as amended in 2021 (added by use of a remote technology system defined by NRS 241.015(6) as any system enabling remote participation and includes video and teleconference options).
Any series of such gatherings without a quorum where the cumulative events were taken to avoid open meeting law and the members as grouped between events constitute a quorum. MEETING (CONT.) Social functions are okay if no deliberation or action takes place. Receiving information from the public body s counsel relating to potential or existing litigation related to the public body s function or control. To receive trainings about legal obligations of public bodies.
At least 3 working days notice Posting and sharing notice Public notice requirements Clear and complete statement of topics Public comment Content of notices including OPENNESS Accessibility/space E-mails, texting, and other electronic communication
NOTICE: AGENDAS Clear and complete statement of topics scheduled to be considered List describing items for action with the phrase for possible action next to each agenda item Periods of public comment (both general and agenda related) Notification that items may: Any restrictions on public comment (time, place, or manner no viewpoint restrictions) Be taken out of order Be combined with other agenda items Be removed or delayed for discussion at any time - Amendments to an agenda should be clearly made and follow notice/posting requirements. - An addition has different challenges than a subtraction, though members of the public who make time for a meeting may be frustrated to find a subject is removed.
Can be used to plan for future meetings. Use as a roadmap for current meetings. The agenda as a tool. Public bodies should use committee staff support to share information and avoid the reply all issue. Clear communication and expectations. OPEN ACTION, OPEN DELIBERATION Would a member of the public be able to have notice and involvement in this deliberation or action?
Once before first action item and again before the meeting s end or On all action items before each action along with a general public comment period about general topics within the public body s jurisdiction. PUBLIC COMMENT Time limits (if used) must be on the agenda and content & viewpoint neutral. Accommodation of disabilities (an individual may require additional time to share their comment). See NRS 241.020(3)(d)(7).
Public bodies cannot take action based on public comment unless in relation to an action item on the agenda. If the agenda has action set for inclusion of future agenda items, this may be a good place to incorporate public comment. This can frustrate members of the public as their concerns may be set for future meetings. PUBLIC COMMENT (CONT.) When using remote technology, the public must be able to not only hear and observe but participate during the meeting with live comment or pre-recorded messages. Pre-recorded messages can be a way to ensure those in attendance perceive and review comment contemporaneously with the comment period (versus written comment when an individual can t make the meeting). See NRS 241.020 and NRS 241.023
TRANSPARENCY Transparency matters and the intent to be transparent matters. Be mindful of any bylaws or specific public body statutes. Example: general belief that Robert s Rules of Order are binding on public bodies (this could come from bylaws specific to one body over another). Example: statute creating the body may give a specific framework for their scope. It takes courage to offer input and comment or be under scrutiny for employment consideration. Note: caution about engaging with certain public comment for specific reasons (such as in situations relating to the considerations of character) can result in improper statements from public bodies about not being allowed to discuss comments with the public in any circumstance, which is not accurate.
REMOTE TECHNOLOGY AND PUBLIC PARTICIPATION Public bodies must reasonably ensure the public can participate in the portion of the meeting that pertains to them using the remote technology system. Compliance is sufficient where the individual is provided with a web-based link and telephone number, in case of technical difficulties, that allows them to attend and participate in real time. This does not mean having to provide tech support. If all members of the public body are required to be elected officials, a physical location is required for public attendance/participation. If a member of the public body attends remotely, the chair or their designee must make reasonable efforts to ensure: Members present at the physical location can hear or observe the remote member and Each member of the public body in attendance can participate.
CONSULTATIONS WITH COUNSEL Watch for polling activity. Non-meeting - NRS 241.015(3)(b)(2) excludes from the definition of a meeting with public body counsel, To receive information from the attorney employed or retained by the public body regarding potential or existing litigation involving a matter over which the public body has supervision, control, jurisdiction or advisory power and to deliberate toward a decision on the matter, or both. Note: this does not include action, just deliberation.
OPEN MEETING LAW RESOURCES NRS Chapter 241 The Open Meeting Law Manual includes cites to notable opinions that can help offer examples www.leg.state.nv.us/NRS/NRS-241.html Attorney General s Office Portal The Open Meeting Law Opinions are organized by date ag.nv.gov/About/Governmental_Affairs/OML/ Open Meeting Law Opinions Inquiries to Attorney General s Office Open Meeting Law Enforcement Unit OML Bills in the 82nd Session: AB 52 & AB 219 Open Meeting Law Manual General Complaint Form
QUESTIONS? hwoodrum@ag.nv.gov Thank you!
