Is Our Senators Learning: The Reach of the Open Meeting Law

It's been some time since our last post, which must mean the Senate has not been doing much lately. We did notice one item of interest on the next Phantom Committee agenda, however: "a resolution reiterating the requirement of the ASUN Executive Board to comply with [the] Nevada Open Meeting Law." This got our attention because there is no requirement for the Executive Board to comply with the Open Meeting Law. Hell, there isn't even an "Executive Board."

We need to begin by dealing with two unfounded assumptions on which this agenda item is based. First, there is no Executive Board. There used to be one, but that was under ASUN's previous constitution. There is something called the President's Advisory Cabinet, established under Title VII of the Executive Branch Act of 2007 (ASUN Public Law 75-7; 75 ASUN Stat. 13). Second, there is nothing in ASUN law to require this group to abide by the Open Meeting Law.

With those two assumptions out of the way, we can now look to the Open Meeting Law for guidance. The Open Meeting Law (Chapter 241 of NRS) requires public bodies to conduct their business openly, in view of the public. The OML applies to student governments because the Nevada Legislature has required the Board of Regents to adopt regulations equivalent to the OML for student governments and to provide for their enforcement (NRS 241.038). The Regents have done that, and the policy is codified in the Board of Regents Handbook, Title 4, Chapter 20, Part B, section 3 (link). The Board of Regents policy essentially says that student governments must comply with the OML.

The Open Meeting Law applies only to public bodies. The law defines a public body as "any administrative, advisory, executive or legislative body of the State or a local government which expends or disburses or is supported in whole or in part by tax revenue or which advises or makes recommendations to any entity which expends or disburses or is supported in whole or in part by tax revenue, including, but not limited to, any board, commission, committee, subcommittee or other subsidiary thereof" (NRS 241.015(3)).

The Nevada Attorney General advises us that in order for a body to be a public body, it "administrative, advisory, executive or legislative body of the State or a local government," meaning that it "must (1) owe its existence to and have some relationship with a state or local government, (2) be organized to act in an administrative, advisory, executive or legislative capacity, and (3) must perform a government function" (Open Meeting Law Handbook, link). If any one of the elements are missing, the body is not a public body. Applying these elements to the President's Cabinet, condition 1 is only partly satisfied. Although the Cabinet does owe its existence to the Senate (only because it enacted a law establishing the Cabinet), it does not have any relationship with the Senate. Condition 2 is satisfied because it acts in an advisory capacity. Condition 3 is not satisfied because it is only advising the President, who himself is not a a public body.

The law also requires that the body be collegial in nature, meaning that the members share equal power through their votes. The members of the Cabinet have no collective power; the ASUN President is not bound by its advice. Therefore, under the OML, the President's Cabinet is not required to obey the OML.

However, the language the Regents used in applying the OML to student governments is a little grayer. It says that the OML applies to "[t]he meetings of any multi-member executive or legislative body, committee, subcommittee, commission or subsidiary thereof" (Handbook, Title 4, Chapter 20, Part B, section 3(3)). Even under this broader application, the OML does not seem to apply. The President's Advisory Cabinet is not an executive body. It has no collective decision-making power of its own, it has no collective ability to execute policy, etc. Its members each possess decision-making and executive powers in their own departments, but it is the President in this case who possesses all the power.

This language also suffers from circular reasoning. Assume it says the Cabinet must follow the OML according to the OML's provisions, but the OML, according to its provisions, says it does not. Even if you assume the Cabinet is covered within the term "multi-member executive body," the OML says that it doesn't apply to a body such as the Cabinet.

For those reasons, we believe the Cabinet is not required to obey the OML. Now, that's not to say that the Senate could not pass a law requiring the Cabinet to abide by the OML's provisions, but it would be subject to constitutional challenge in the Judicial Council on the grounds that it violates the separation of powers doctrine, that it prevents the President from receiving candid advice from his department chiefs, and that it abuses the deliberative process privilege enjoyed by executives.

Now, there may be more to this story than we are aware. Perhaps a university attorney has disagreed with our interpretation of the OML and Regents policy. Even if that were the case, it would take a disciplinary action to test that interpretation. Unfortunately, under federal law disciplinary actions cannot be disclosed by the university, so we'd likely never know about it, unless a subject of such an action were to speak out.

But given the fact that this is a nonbinding resolution the Phantom Committee is deliberating, and given the phrasing that it would "reiterate" a requirement that is presumed to already exist, we think this is coming from some senators who are misinformed on the reach of the OML, and whose motivation is probably that they don't like that President Eli Reilly and his cronies are allegedly meeting behind closed doors to share their mutual disdain for Gracie Geremia and discussing how to undermine her every move, starting with elevating Sen. Brandon Bishop's status.