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Open vs. closed: what the rules say

Late-breaking news tonight that the Assembly Select Committee on the Assembly (what a truly awful committee name), which has been looking into whether Assemblyman Steven Brooks should be allowed to continue to serve in office, will close significant portions of its meeting tomorrow night and, most importantly, will not release its special counsel’s investigative report. The Las Vegas Sun’s Anjeanette Damon broke the story via Twitter tonight.

We learned last week, when the Select Committee posted its agenda, that at least a portion of the meeting would be closed to the public. Some attention has been paid to the fact that the Nevada Constitution allows committees to hold closed meetings “to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.” Nev. Const. art. 4, § 15. Unfortunately, little attention has been paid to the Assembly’s Standing Rules.

This post will first discuss the origin of the constitutional language at issue. Then, it will turn to whether the Select Committee may close any portion of its hearing regarding Assemblyman Brooks. Finally, I will briefly discuss whether the Select Committee, the Assembly, or the LCB can withhold the independent special counsel’s report. In summary, there is a lack of clear authority for the Select Committee to close its meetings. That is a defect that is easily cured by the Assembly, simply by amending, suspending, or adopting new rules. Additionally, the investigative report is likely protected from compelled disclosure under the Public Records Act.

Not always open

As originally drafted in 1864, the Nevada Constitution simply mandated that “The doors of each House shall be kept open during its session.” Nev. Const. art. 4, § 15 (1864). By its plain meaning, the requirement did not apply to committee hearings. Not until 1988 did the Nevada Supreme Court confirm this view, rejecting a challenge by media corporation Sarkes Tarzian (owner of KTVN in Reno). The Court rejected a challenge to an Assembly resolution suspending Standing Rule No. 11 (more on today’s version in a bit) and providing for the confidential review of documents produced under subpoena. The Court wrote

The trial court correctly observed that the above constitutional provision does not mention the committees of either house and concluded that had “the Framers intended to prohibit closed sessions of committees, they would have said so. Additionally, as the trial court pointed out, the constitutional debates also fail to indicate any constitutional intent to open all committee meetings as were “the doors of each House … during its session,” that is, during a meeting of the entire body of the house.

Sarkes Tarzian, Inc. v. Legislature, 765 P.2d 1142 (Nev. 1988) (per curiam). Thus, the Court refused to force the Legislature to hold open committee meetings.

Not often to be closed

Recognizing that perceived secrecy was a danger to the legitimacy of the legislative process, the Legislature in 1991 and 1993 proposed an amendment to the Constitution to provide that committee meetings must be open to the public, except in very limited circumstances. See Compiled Legislative History on S. J. Res. No. 71991 & 1993 Leg. The voters approved the amendment in 1994. The relevant language now states

The doors of each House shall be kept open during its session…. The meetings of all legislative committees must be open to the public, except meetings held to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.

Nev. Const. art. 4, § 15. Similar language regarding when a meeting may be closed appears in the Open Meeting Law. See NRS 241.030. That is the source of the language for the constitutional amendment. S. Journal, 66th Leg., Reg. Sess., at 495 (remarks of Sen. Adler) (“t[he] language is out of the state’s current open meeting law”). Notably, public bodies subject to the OML cannot close their meetings to consider the character, alleged misconduct, professional competence, or physical or mental health of a person when a member of the public body is under consideration. See NRS 241.031. But, lucky for the Legislature, it has exempted itself from the OML. NRS 241.015(3) (“‘Public body’ does not include the Legislature of the State of Nevada.”).

Notice that the language does not require closed meetings when a committee considers the character, etc., of a person, but merely allows the committee that option.

What about Rule 11?

Fitting for the Assembly’s trials and tribulations throughout the whole Brooks debacle, the Assembly has adopted a standing rule that by its very plain language directly conflicts with closing portions of the Select Committee’s meeting tomorrow night. Rule 11 of the Assembly Standing Rules provides, in its entirety,

All meetings of the Assembly and its committees must be open to the public.

Not a lot of wiggle room there. What’s more is another Assembly rule does reserve the power to close certain committee meetings, but only with respect to the Select Committee on Ethics. Rule 23, which provides for a Select Committee on Ethics, allows closed meetings.

8. All proceedings held to consider the character, alleged misconduct, professional competence or physical or mental health of any person by the Committee on matters of ethics or conflicts of interest are confidential unless a Legislator:

(a) Against whom a complaint is brought requests a public hearing;
(b) Discloses the content of an opinion of the Committee at any time after his or her hearing; or
(c) Discloses the content of an advisory opinion issued to him or her by the Committee.

Thus, reading these two rules together, the Assembly has determined the only committee allowed to close its meetings is the Select Committee on Ethics. And it doesn’t take a genius to know that the Select Committee on the Assembly is not the Select Committee on Ethics. Why the Assembly didn’t task the Select Committee on Ethics with investigating Brooks’ conduct, I don’t know, but I did briefly mention this way back in my first post.

Aside from the exceedingly broad power to amend the rules without notice (and by just the chair), nothing in the Select Committee on the Assembly’s rules or in Assembly Resolution 5 authorizes closed meetings. Because Rule 11 is not inconsistent with the Constitution, it is binding on the Assembly and its committees. Committees are also expressly prohibited from adopting inconsistent rules. See Rule 41(3) (“All committees will operate under the rules set forth herein…. Each standing committee may adopt … policies consistent with these rules.”).

Furthermore, Mason’s Manual guides, “Unless the practice of committees to hold closed or secret sessions is clearly established, the committee should secure the definite authority from the legislative body whenever it desires to hold closed sessions.” § 629(2). Just add this to the list of parliamentary goof-ups. Any member of the Assembly could raise a point of order (either in committee or in the Assembly, but in the full Assembly is probably best) against closing the meeting or rise to a question of privileges of the house and offer a resolution to block the Select Committee from meeting in closed session or to confirm that the Committee does have authority to close its hearing.

Secrecy of the investigative report

The last subject for brief consideration here is whether the Select Committee’s special counsel’s report is subject to public disclosure. Nevada’s Public Records Act is a very broad statute, with few exceptions. Generally, “all public books and public records of a governmental entity, the contents of which are not otherwise declared by law to be confidential, must be open at all times … to inspection by any person.” NRS 239.010(1). “Governmental entity” is defined as, among other things,

(a) An elected or appointed officer of this State or of a political subdivision of this State; (b) An institution, board, commission, bureau, council, department, division, authority or other unit of government of this State or of a political subdivision of this State.

NRS 241.005(4). Because the Legislature, the Assembly, and the Select Committee all are a “unit of government of this State,” it seems very difficult to argue that any of those bodies is excluded from the Public Records Act’s scope. Cf. NRS 241.015 (exempting the Legislature from the Open Meeting Law).

However, NRS 218F.150 may provide enough of a shield to disclosure to keep the investigative report out of the hands of the media. That statute provides, among other things, that the officers and employees of the Legislative Counsel Bureau shall not “disclose to any person outside the Legislative Counsel Bureau the nature or content of any matter entrusted to the Legislative Counsel Bureau, and such matter is confidential and privileged and is not subject to subpoena, unless the person entrusting the matter to the Legislative Counsel Bureau requests or consents to the disclosure.” Further, “[t]he nature and content of the work product of the officers and employees of the Legal Division … are confidential and privileged and are not subject to subpoena.”

The question then becomes whether the investigative report prepared by the Select Committee’s special independent counsel qualifies as a “matter entrusted to the Legislative Counsel Bureau” or whether it is the work product of the Legal Division. Given the scope of the engagement agreement between the special counsel and the LCB, I think there’s a strong argument that the special counsel’s work product is protected from disclosure under the Public Records Act by NRS 218F.150. I’m sure the media will cry foul. From a policy standpoint, there are good reasons in favor of and against disclosure of the report. I’ll leave those discussions to others, except to say given the momentousness of possibly being the first House of the Legislature in Nevada’s history to expel a member, the full record should be made public, as is routinely the practice in the U.S. House when the full House considers disciplinary action of that magnitude. But from a purely legal standpoint, there is a good leg to stand on to refuse to disclose the report.

Sure will be interesting to see what happens tomorrow.

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