Sunday, June 14, 2009
Is Our Senators Learning: Retreats and the Open Meeting Law
This certainly has to be a broken record to our readers, but the Senate and other public bodies that attended this past weekend's retreat at Lake Tahoe broke the Open Meeting Law when they held their retreat. This post is in response to a couple of comments we received to this post. One reader asked whether holding the retreat without posting agendas creates a problem under the OML. Another reader defended the practice, stating that "[n]o meetings were held, Senate or otherwise, so no violation in NOML. The 'retreat' was used to teach those new to ASUN about ASUN, set amazing goals, and learn how to better serve you the students."
This post will examine whether the Open Meeting Law applies to retreats at which members of a public body will gather.
Executive Summary
The Open Meeting Law applies to retreats because a retreat is a meeting for the purpose of the OML. Keep reading to find out why the OML applies to retreats.
It is unquestionable that the OML applies to the Senate and other public bodies of the ASUN (Clubs Commission, etc.). The specific question is whether a retreat, in this particular case at the 4-H camp at Lake Tahoe, at which a quorum of the members of a public body will meet must comply with the provisions of the Open Meeting Law (Chapter 241 of NRS).
By its terms, the Open Meeting Law states that "all meetings of public bodies must be open and public, and all persons must be permitted to attend any meeting of these public bodies" (NRS 241.020(1)). Several definitions operate to define the scope of the law's coverage (NRS 241.015); they are applicable here.
First, the term "meeting" must be defined. The law states that persons must be allowed to attend "any meeting" of a public body. "Meeting" is defined as "[t]he gathering of members of a public body at which a quorum is present to deliberate toward a decision or to take action on any matter over which the public body has supervision, control, jurisdiction or advisory power" (NRS 241.015(2)(a)(1)). "Quorum" is defined as a majority of the members of a public body (NRS 241.015(4). (For the Senate, ASUN Constitution states it is two-thirds of the members of the Senate, but that is a requirement in addition to the OML. The OML is implicated when only a majority is present, regardless of the fact that the Senate cannot act under the ASUN Constitution unless two-thirds of the members are present.)
It is without dispute that a majority of the Senate's members attended the retreat. (EDIT: It appears that the retreat was more sparsely attended than assumed (See Gracie Geremia's comment below. This claim should be viewed taking the new information into account. However, as a matter of situations, this post is still valid.) The threshold question of whether enough members were present to trigger the OML is therefore answered in the affirmative. We next turn to determine whether a "meeting" occurred for the purposes of the law.
Remember, "meeting" is defined as:
We have already answered that there was a gathering of a quorum of the Senate. The questions becomes whether the Senate deliberated toward a decision or took action on "any matter over which [the Senate] has supervision, control, jurisdiction or advisory power."
According to this commenter, "[t]he 'retreat' was used...to set amazing goals...." The aggrandizing language aside, it appears that some action was taken at the retreat, as goal setting would qualify as an action. (The collective experience of the members of this blog corroborates this comment. Past ASUN officials agree that deliberation occurs during these retreats. Just to be sure, let's look at how "action" is defined in the OML."Action" means:
(NRS 241.015(1)). Setting goals certainly appears to qualify as "a decision made by a majority of the members" of the Senate or as "a commitment or promise made by a majority of the members" of the Senate. If a goal is not a commitment to take some sort of future action, I don't know what is.
(a) A decision made by a majority of the members present during a meeting of a public body;
(b) A commitment or promise made by a majority of the members present during a meeting of a public body;
(c) If a public body may have a member who is not an elected official, an affirmative vote taken by a majority of the members present during a meeting of the public body...
But keep in mind, the OML does not require that action be taken to trigger its provisions; to deliberate toward a decision on some item over which the Senate has control or advisory power is sufficient to implicate the provisions of the law. For example, even if the Senate did not take action to set goals but merely discussed them, the OML would still apply.
We have satisfied all of the factors to determine whether the OML applies. None of the exceptions to the law apply either. (I have omitted discussing the stated exceptions for the sake of brevity but will gladly comment on them if raised by commenters.) The fact that this meeting was styled as a retreat is irrelevant. It doesn't matter what you call the meeting, because, as the saying goes, if it looks like a duck and quacks like a duck, it's a duck. Same thing with meeting vs. retreat.
Accordingly, the remainder of the OML law applies to this situation. Notice of the meeting must be given, agendas prepared and posted, minutes taken, public comment allowed, etc.
Don't agree with my analysis? Fine, don't take my word for it, take the Nevada Attorney General's word. The Attorney General has specifically opined about retreats and concluded that the OML does apply and that agendas for retreats must be drafted with particular attention to satisfying the clear and complete agenda requirement (Open Meeting Law Opinion No. 99-02).
The general rule is whenever a quorum of a public body is going to gather to deliberate on matters the body has control over or an interest in, the meeting must be held in compliance with the Open Meeting Law. The rules don't change just because you don't call it a "meeting."
Posts
I neglected to mention that the Office of the Attorney General has specifically mentioned retreats in its manual on the Open Meeting Law (link). Given the wealth of information and assistance published to assist public bodies in complying with the OML, it would appear there is little (if not no) excuse for failing to comply with the law.
ReplyDeleteFYI. Senate did not have quorum at the retreat. Let's not make assumptions. Simply send an e-mail and ask for the count if you're worried.
ReplyDelete-Gracie Geremia
Gracie,
ReplyDeleteWould that be the constitutional quorum or the OML quorum? It matters.
Lupus,
ReplyDeleteAt times, we had only 10 present (so that would be both). Some of the time, we had 12 present. This retreat has been happening for many years. Why is this suddenly an issue? I find your claim questionable. However, I will not comment on this any longer. Have an issue, you're welcome to talk to the judicial council, again.
The "well, we've been doing it like this before, so it must be okay" defense is not valid. In fact, this isn't "suddenly an issue," as this point has been raised in the past by former senators and constituents.
ReplyDelete"Talk to the judicial council" who will delay the hearings again and again until the cases are never heard.
ReplyDeletehm.
I dont understand how goal setting equates to taking action...
ReplyDeleteYou of all people know that there is a process to be followed for allegations against senators or ASUN officials. In the federal system cases may take months or years to be processed, since we should be imitating and are accountable in the same way as the national government, delays in the judicial process should be expected. Remember, in the words of VLEG there is a process for a reason and we wouldn't want to make any mistakes by speeding the process up.
ReplyDeleteGracie...stop responding. If they have complaints, they can file cases with the judicial council. By responding, you are likely to unknowingly incriminate yourself. I understand that you take these attacks personally and want to resolve any issues raised by them, but don’t forget that this site only represents a small portion of the constituency—if they are even students. I think you are doing an excellent job! Keep up the good work.
Action is defined very broadly under the Open Meeting Law. The core definition of action is "[a] decision made by a majority of the members present during a meeting of a public body" or "[a] commitment or promise made by a majority of the members present during a meeting of a public body." Remember, meeting is defined simply as the gathering of a majority of the members of a public body.
ReplyDeleteAssuming the goals were collectively set by the senators (with the conditions triggering the OML being satisfied) and not simply announcement of individual goals that the body took no stance on, goal setting qualifies as an action. Since these goals are being called the Senate's goals, I would reasonably assume that the Senate set them.
The fact of the matter is the established practice under the OML is for public bodies to notice retreats and treat them as public meetings (see example agendas for Washoe County School Board here, Washoe County Commission here, and the Nevada Board of Regents here).
As for the judicial aspect of all of this, yes, a process must play out. However, can the process reasonably be called fair when the clock is run out so parties to cases lose standing? While it is a function of student government to emulate other governments in their structures and practices, had these cases been filed in the real world, injunctions would've issued to maintain the status quo. The fact that cases take time is a function of the much more complex judicial system in the real world. The same analysis does not hold true with ASUN.
Lupus, nice try, but you make no sense. You are finding flaws to find flaws. And you are twisting OML to justfiy it.
ReplyDeleteThese were just broad goals set by the senators who were at the retreat. Also, there was no quorum so there is no problem.
Idiocy is defined as extreme mental retardation, which this post if suffering from.
I think it's pretty funny that you (Anonymous) are defending the Senate by saying not enough showed. That tells me not enough cared. Your right in that it makes the OML issue moot, but it has much broader implications. It means not even a majority of Senators could go and spend a weekend in Tahoe on ASUN's dime, but they were planning on meeting over the entire summer? Hmmm.
ReplyDeleteI do agree with you that Gracie should leave this site alone. The more she speaks the more it just makes things worse.
I agree with anon #2. Thats really sad that no one hardly showed up. Gracie, you're doing a good job. And yeah...pretty sure not one person on this blog is a current student. As for the OML violation...I see your claims but in the numerous years that ASUN has done a retreat no one has brought issue against for violations. While I understand the "well just because you did it before doesn't make it ok" stuff, I can also see that the retreat does no harm...individual goals are set and they do some teambuilding stuff. big deal.
ReplyDeleteI must've missed the part about harm being an element in establishing an open meeting law violation.
ReplyDeleteHmm so anon 2, you also must be a contributor to this blog. Because the senate is cleared of the oml violation and yet there is STILL something wrong with the picture. anon 1 said because there was no quorum there was no violation. S/He then explained why goal setting/team building didnt constitute taking action. anon 1 didnt SAY it was a good thing that few of the senators came. anon 1 simply said no oml law was violated.
ReplyDeleteidiot.
Since when was the senate "cleared" of anything? I'm pretty sure even the Sagebrush would post something on their website if that happen.
ReplyDeleteAnd I didn't say he/she said it was a good thing, I simply was making another observation.
BTW, I'm not a contributor to this blog, but it sounds like you were a member of the 76th session because you seem to have the IQ of Forrest Gump, JENNNNNNNNNNYYYYYYYYYY....
RAAAAAWWWWWWWWRRRRRRRRRRRR
ReplyDeleteahahahaha, the sagebrush didnt say anything because THERE WAS NOTHING TO SAY!
ReplyDeleteGet over yourselves VLEG.