NPRI comments on Nevada Supreme Court hearing its Open Meeting Law complaint
Today, the Nevada Supreme Court heard NPRI's appeal in our case to defend Nevada's Open Meeting Law. No word yet on when the Court will issue its decision, but here's our reaction to today's hearing.
NPRI comments on Nevada Supreme Court hearing its Open Meeting Law complaint
LAS VEGAS - The Nevada Supreme Court has just concluded a prehearing conference - essentially oral arguments - on an appeal filed by NPRI's Center for Justice and Constitutional Litigation. The appeal is part of NPRI's efforts to defend Nevada's Open Meeting Law, and the Supreme Court will decide whether the lower court erred in failing to grant a preliminary injunction and by whom the case will be heard.
After the prehearing conference, Joseph Becker, chief legal officer and director of CJCL, issued the following statement:
Unless Nevada's Open Meeting Law is defended in cases such as this, it will become a dead letter, twisted and ignored by government officials who dislike following the law and taking public comment before making their decisions.The appeal stems from a case filed by NPRI and Karen Gray in the Eighth Judicial District Court on Aug. 3, 2012, alleging that the Clark County Regional Debt Management Commission violated Nevada's Open Meeting Law (NRS Chapter 241) at a June 7 meeting, when it approved the Clark County School District's $669 million property-tax increase for the fall ballot without seeking comment from the public before proceeding to vote.
This case is about protecting openness in government and citizen participation, which is why we appreciate the Nevada Supreme Court's willingness to hear our appeal on an expedited basis.
Nevada's high court has traditionally been a stalwart defender of transparency and openness in government. We urge the Court to protect the ability of citizens to offer public comment before a vote by affirming that the chairperson must verbally offer a time for public comment, instead of forcing citizens to guess when it is their time to speak.
Nevada's Open Meeting Law, at NRS 241.020(2)(c)(3), requires that public comment must be taken "before the public body takes action on the item." Another provision in the chapter, NRS 241.036, states that: "The action of any public body taken in violation of any provision of this chapter is void."
The Supreme Court has not announced when it will issue its ruling, but given the case's implications for the fall ballot, a ruling is expected promptly.
Read more:
Supreme Court Order Resolving Motion, Directing Expedited Transmission of District Court Record, and Setting Prehearing Conference in Nevada Policy Research Institute, et al. v. CCSD, et al. is available at: http://justice.npri.org/assets/cases/2012/08/order-resolving-motion.pdf.
CJCL's Emergency Petition for Writ of Mandamus in Nevada Policy Research Institute, et al. v. CCSD, et al. is available at: http://justice.npri.org/assets/cases/2012/08/writ-motion-to-strike.pdf.
Complete Writ Exhibits in Nevada Policy Research Institute, et al. v. CCSD, et al. are available at: http://justice.npri.org/assets/cases/2012/08/complete-writ-exhibits.pdf.
NPRI President Andy Matthews describes the arguments and implications of this case: http://www.lvrj.com/opinion/law-requires-a-clear-call-for-public-comments-168303806.html.
CJCL's Open Meeting Law Violation Complaint in Nevada Policy Research Institute, et al. v. CCSD, et al. is available at: http://www.npri.org/docLib/20120807_Nevada_Policy_Research_Institute_v._Clark_County_School_District.pdf.
Read moreSubsidies corrode
Every week, NPRI President Andy Matthews writes a column for NPRI's week-in-review email. If you are not getting our emails, which contain our latest commentaries and news stories, you can sign up here to receive them. Just enter your email in the box on the top right.
For today's week-in-review email, Andy looks at the importance of rejecting subsidies.
As I'm talking to friends and supporters of NPRI, I often note that the Institute neither seeks nor accepts any funding from government.
This is a good thing for several reasons, including a rather obvious one: Since NPRI's mission includes a commitment to holding government accountable, our efforts would inevitably be compromised if we were financially dependent on that same government.
But I think there's an even better reason for us to refuse government funding: Subsidies corrode.
That NPRI is funded solely by those who choose to support us means that we have to work constantly to earn your support. This keeps us sharp and focused, and forces us to consistently demonstrate an efficiency and effectiveness in how we operate.
I wouldn't have it any other way.
Would it be nice to know, going into each year, that there's a big pot of government money coming our way? Maybe, in a sense. But the risk that we'd grow complacent, knowing that we'd still have that easy money to fall back on, would be far too high a price to pay.
Evidence of the deleterious effects of government subsidies is all around us. I wrote recently about the enormous sum of federal dollars that has been thrown at the renewable-energy industry in the name of "economic investment," and the pathetic results we've seen in terms of actual job creation. But while these subsides have proven to be a bad bet for taxpayers - not to mention an injustice brought upon those green-energy companies' competitors - they're also ultimately harmful to their recipients. The Solyndras of the world would have a far better chance of success if they were actually forced to develop a business model that is responsive to market forces, rather than one that is reliant upon political connections and government freebies.
Geoff Lawrence, NPRI's deputy policy director, came at this idea from another angle this week, penning an incisive commentary about the way Nevada funds its system of higher education. Among Geoff's points is that the direct subsidization of the state's educational institutions - in lieu of a more student-centric approach to higher-ed funding - makes those institutions less responsive to the needs of students. It's no wonder that fewer than half of the system's students even graduate.
And, to cite a very recent example, the Obama administration's decision to weaken the work requirements of the 1996 welfare-reform bill provides yet another reminder of how government handouts, by undermining the concepts of personal responsibility and work ethic, hurt the very people they are intended to help.
But consider how the principle applies closer to home. Nevada's students headed back to school this week, and if you're a parent, your hope is not only that your child will receive good grades this year, but that he or she will learn something as well.
Imagine your 12 year-old daughter coming home on the first day of school, and reporting that her teacher has told her that at the end of the school year, she'll automatically get 20 points added to her grade. Your child would likely be thrilled - but you'd be horrified, and rightly so. That's because, while the higher grade might look good on paper, you'd fear that this "grade subsidy" would tempt her to goof off and put forward less effort. And in the long run, she'd be harmed by this significantly, because the goal is to learn, and have that learning be reflected by a high grade. The goal is not the grade itself.
It's a simple concept, but one that nonetheless manages to elude so many of our politicians. If I may offer one of my favorite lines on this subject: "If we take the route of the permanent handout, the American character will itself be impoverished."
It's rare these days, I know, for anyone to quote Richard Nixon approvingly. But in this instance, he was right on the money.
Take care, and have a great Labor Day weekend.
Andy Matthews
NPRI President
Remember, if you'd like to receive the latest from NPRI, sign-up for our emails here. Enter your email address in the box on the top right.
Update: Changed the intro text to reflect Andy's letter.
Obama: I didn't do a good enough job selling the stimulus
For someone whose main claim to fame is being a first-rate public speaker, President Obama sure blames messaging an awful lot for his policy failures.
The president says he also wants to do a better job of explaining to the public how his policies will help the economy grow. Obama claims he didn't do a good enough job selling Americans on the stimulus plan and the auto company bailout because he was so focused on acting to fix the economy. (Emphasis added)And what a fix it was. When you can spend $787 billion for 8.3 percent unemployment when your own analysis shows doing nothing would have lead to 6 percent unemployment, you have to do it.
The problem with the stimulus isn't that President Obama hasn't talked about it enough - it's that the stimulus was and is an epic failure and no amount of sweet talk, even from the President, can disguise the fact that it failed. Miserably.
Reid: I can't refute NPRI's findings, so please ignore them
This op-ed by Sen. Majority Leader Harry Reid claiming to offer "the truth about clean energy" came out last week, and it's hilarious.
Here's his reaction to the Nevada Journal investigation that revealed that over $1.3 billion from the federal government has led to only 288 permanent jobs in Nevada.
Despite the evidence, there are many - such as Romney - who do not believe Nevada and our nation's clean energy success. That's why I wasn't surprised to read the Aug. 5 Review-Journal editorial, "Green summit: And never is heard a discouraging word." The Review-Journal cited a flawed study by a Nevada conservative think tank about the economic benefits to renewable energy development.Yes, why would anyone want to know that a few years after federal taxpayers shell out $1.3 billion for green-energy projects there will only be 288 jobs left? That's only $4.6 million a job. At that rate, it'd only take $753.2 billion to get every unemployed person in Nevada a permanent job. That's definitely a plan in Nevada's best interest.
This editorial and the study do not serve Nevada's best interests.
Since he can't refute Nevada Journal's research, Sen. Reid returns to his hollow talking points.
Earlier I discussed the enormous economic benefits Nevada has seen as a result of clean energy projects, but they are worth repeating. Clean energy projects in our state have resulted in nearly 3,500 permanent and construction jobs and $248 million in tax revenue.Nevada's already learned what's happened when you base an economy on construction workers building houses for construction workers. A bubble. Followed by the inevitable crash. Or maybe Sen. Reid missed that living at the Ritz-Carlton in Washington D.C.
The reason to focus on permanent jobs is because they're permanent. The government's great at creating economic bubbles, but that's not a path to long-term prosperity.
As for that ballyhooed tax revenue, as Thomas Mitchell writes, "For the taxpayer that is like taking money out of one pocket and putting it in another."
Reid continues:
Skeptics often criticize the number of permanent jobs from clean energy projects as evidence that they do not warrant the investment. The problem with this argument is that they simply discount the value of the construction jobs as if they do not matter. No one applies the same standard to road, bridge or water construction projects because everyone understands their value to the community at large and their relationship to economic growth.Exactly. Everyone understands the value of a road and a bridge. They add value to a community.
We don't (or as the stimulus showed, shouldn't) build roads to create jobs. We build roads because we need roads.
In contrast, the theme of Sen. Reid's 2010 Clean Energy Summit was "Investing in American Jobs." Sen. Reid and others specifically sold green-energy subsidies as job creators, which, as Nevada Journal's investigation reveals, they aren't.
Since green-energy subsidies creates only a handful of permanent jobs, what's the "value to the community at large" of energy that's up to four times as expensive as coal or natural gas and also (for wind and solar) requires backup power for "intermittency issues"?
Bueller? Bueller? Bueller?
CA pension reform and the lessons for NV
State policymakers across the nation have had their eye on Sacramento this week as California Governor Jerry Brown has tried to usher public employee pension reform through that state's legislature. Brown has been pushing for significant changes to the state's pension system, which is underfunded by at least $150 billion.(The $150 billion figure is the unfunded liability valuation calculated by the actuarial method and published in the system's official financial reports. However, nearly all economists agree that this accounting method is problematic and does not accurately reflect total system liabilities because it does not account for the pricing of risk among the system's assets. A more accurate accounting method reveals that public pensions in California are underfunded by at least $398 billion.)
Under the new compromise, Brown agreed to drop that demand, however, citing the difficulty of negotiating pension reforms with a Democrat-controlled legislature and the government unions that fund their campaigns. (Brown is a Democrat himself.)
The key points of the compromised reform package are as follows:
1. An annual cap on pension payments for new employees at $110,100, or $132,120 for workers who do not qualify for Social Security.While the reform package is a step in the right direction, it's only a baby step. The changes only apply to new hires going forward and not to workers already participating in the system. That means that it will essentially have no bearing on the liabilities already accrued by the system. The Utah-style hybrid plan was the centerpiece that allowed the package to offer relief to the state's fiscal hole and, without it, Sacramento's finances will really be no better next week than they were last week.2. New employees must match taxpayers' initial contributions into their retirement accounts. This provision, however, will be subject to collective bargaining, which means that union bosses can mount campaigns designed to sway city councils into covering the employee share with city tax dollars.
3. The minimum retirement age for new hires will increase from 55 to 67, reflecting longer lifespans. For public safety workers the minimum retirement age will increase from 50 to 57.
4. Controls will be introduced to limit the practice of "spiking." (Nevada lawmakers enacted similar provisions in 2009 after Senate Republicans demanded the change in order to agree to a $780 million tax-hike package.)
5. The purchasing of "air time" will be eliminated.
6. Government workers will become ineligible to collect pensions if they are convicted of a work-related felony. (It might surprise most people to know that this isn't already the case in most states--including Nevada.)
Still, the obstacles to achieving even modest reform are becoming clear as government union bosses have reacted vociferously to the announcement that any reform might become law. Union bosses have vowed to fight the reforms, either through referendum, through the courts, or both.
The executive director of the state teacher union has said that the reform package would force government workers to "retire in poverty." Once taxpayers learn that $132,120 per year plus full health benefits is considered poverty, they're likely to all claim poverty and petition Sacramento to make government unions finance retirement packages for them!
My favorite comment, though, comes from Paula Ready, spokeswoman for the San Bernadino Public Employees' Association, who says the reforms are "not responsible." Meanwhile, the City of San Bernadino filed for bankruptcy earlier this month precisely because it could not keep pace with the mounting pension obligations foisted upon it by Ready's union. So even modest reform is "not responsible?" How ironic.
These stories only foreshadow the fight that lies before Nevadans along the road to pension reform. However, it's telling that even in California and Illinois state policymakers have been forced to address the pension underfunding issue because they simply cannot deliver quality services and keep up with rapidly mounting pension liabilities at the same time. Nevada, likewise, must address its impending pension apocolypse if it is to meet the budget challenges that lie before it in future years.
It's not a political imperative. It's simply a math issue.
The Nevada Supreme Court will hear appeal of NPRI's Open Meeting Law violation complaint
We're going to the Nevada Supreme Court, and the high court has agreed to hear NPRI's appeal next week. Here are all the details.
Nevada Supreme Court to hear NPRI's appeal of complaint on Open Meeting Law violation
CARSON CITY - The Nevada Supreme Court will hear, on an expedited basis, an appeal filed by NPRI's Center for Justice and Constitutional Litigation. The appeal challenges a lower court decision issued last week and seeks to uphold the state's Open Meeting Law.
The prehearing conference - essentially oral argument - before the entire Supreme Court will be held on Wednesday, Sept. 5, 2012, at 11:30 a.m. on the 17th floor of the Las Vegas Regional Justice Center.
"Because Nevada's Supreme Court has a strong tradition of preserving transparency and openness in government, it is heartening to see the Court respond swiftly to our appeal and emergency motions," said Andy Matthews, president of NPRI.
"Despite a heavy caseload, the Court issued its written order within hours of receiving our motion to appeal. This is highly unusual and demonstrates that the Court takes this case seriously and wants to ensure it receives a timely review, given its implications for printing ballots for this fall's election."
The appeal stems from the case which NPRI and Karen Gray filed in the Eighth Judicial District Court on Aug. 3, 2012, alleging that the Clark County Regional Debt Management Commission violated Nevada's Open Meeting Law (NRS Chapter 241) at a June 7 meeting, when it approved the Clark County School District's $669 million property-tax increase for the fall ballot without allowing for any public comment before its vote.
While Gray, an employee of NPRI, was in attendance and prepared to discuss the matter, the commission ignored state law and did not offer members of the public the opportunity to comment before the commission took its vote. Audio of that meeting is available at http://www.npri.org/audioLib/20120813_DMC_2012-06-07.MP3.
Nevada's Open Meeting Law, at NRS 241.020(2)(c)(3), requires that public comment must be taken "before the public body takes action on the item." Another provision in the chapter, NRS 241.036, states that: "The action of any public body taken in violation of any provision of this chapter is void."
Judge Valorie J. Vega did not rule on the merits of an Open Meeting Law violation complaint filed by CJCL, but rather on the questions of whether to grant a preliminary injunction and by whom the case will be heard. The Supreme Court will now decide both questions.
"While this appeal has implications for this fall's ballot, the case is simply about defending Nevada's Open Meeting Law and making sure the Clark County Regional Debt Management Commission follows the law," said Jacob Hafter, attorney for NPRI and Karen Gray.
"Without constant oversight, government officials tend to seek ways to weaken or ignore laws that give citizens access and input to the lawmaking process. This case is about preserving that openness in government.
"Under the Open Meeting Law, the chair of the meeting has an obligation to verbally offer a public-comment period before taking a vote. This allows citizens to give their input before a decision is made and before commissioners are gathering their things to leave. The chair did not offer that opportunity in this case, and when that happens, the law is perfectly clear - the action of any public body taken in violation of Nevada's Open Meeting Law is void."
Hafter, noting that the Supreme Court has decided to review disputed facts in the case, called on the Court to weigh in on the side of the public.
It would be a dangerous precedent, he observed, were the high court to rule that the burden of proof was on citizens instead of government officials in a case such as this.
Matthews and Joseph Becker, NPRI's chief legal officer and director of CJCL, will have media availability immediately after the hearing, which will be held on Wednesday, Sept. 5, 2012, at 11:30 a.m. on the 17th floor of the Las Vegas Regional Justice Center.
Read more:
- Supreme Court Order Resolving Motion, Directing Expedited Transmission of District Court Record, and Setting Prehearing Conference in Nevada Policy Research Institute, et al. v. CCSD, et al. is available at: http://justice.npri.org/assets/cases/2012/08/order-resolving-motion.pdf.
- CJCL's Emergency Petition for Writ of Mandamus in Nevada Policy Research Institute, et al. v. CCSD, et al. is available at: http://justice.npri.org/assets/cases/2012/08/complete-writ-exhibits.pdf.
- Complete Writ Exhibits in Nevada Policy Research Institute, et al. v. CCSD, et al. are available at: http://justice.npri.org/assets/cases/2012/08/complete-writ-exhibits.pdf.
- NPRI President Andy Matthews describes the arguments and implications of this case: http://www.writeonnevada.com/2012/08/why-npri-is-defending-nevadas-open.html.
- CJCL's Open Meeting Law Violation Complaint in Nevada Policy Research Institute, et al. v. CCSD, et al. is available at: http://www.npri.org/docLib/20120807_Nevada_Policy_Research_Institute_v._Clark_County_School_District.pdf.
CCEA union boss: Obamacare is driving up our health insurance costs
Who says Obamacare is driving up the cost of insurance? It's not just the Heritage Foundation, Forbes and the American Enterprise Institute.
As the Las Vegas Sun reports, the union boss who runs the Clark County Education Association's Teachers Health Trust also blames Obamacare for increasing costs.
However, with an increase in health care costs, driven in part by the passage of the Affordable Care Act, the Teachers Health Trust no longer can dip into its reserve funds to subsidize rising costs, trust CEO Peter Alpert said. (Emphasis added)Remember this the next time someone tries to claim the Affordable Care Act made health insurance more affordable.
Even union bosses are now admitting that the "Affordable" Care Act is making insurance more expensive.
Update (August 28, 2012): Fixed a grammar error.
"I want to be a crony when I grow up."
A brief, entertaining video for your viewing pleasure:
Why NPRI is defending Nevada's Open Meeting Law
Every week, NPRI President Andy Matthews writes a column for NPRI's week-in-review email. If you are not getting our emails, which contain our latest commentaries and news stories, you can sign up here to receive them. Just enter your email in the box on the top right.
For today's week-in-review email, Andy looks at the importance of defending Nevada's Open Meeting Law.
Because government exists to serve the people - and not the other way around - government and its actions should be transparent and open to citizens.
While you won't find any elected or government officials publicly disagreeing with this statement, some officials do everything they can to avoid the sunlight of transparency and the input of citizens when they think no one's looking.
Those are the stakes in the case brought by NPRI's Center for Justice and Constitutional Litigation against the Clark County School District and the Clark County Regional Debt Management Commission (DMC).
Nevada's Open Meeting Law requires all governmental bodies to take public comment before voting on agenda items - either at the beginning of the meeting or before the item goes to a vote.
On June 7, 2012, the DMC, chaired by Clark County Commissioner Susan Brager, held a public meeting during which it approved a $669 million property-tax-increase proposal to be put on the general-election ballot in November. Karen Gray, an NPRI reporter and Clark County resident and taxpayer, attended that meeting to provide comment and gather information.
After 74 minutes of lively discussion among the commissioners, Brager asked the commissioners, "Any other questions? Do you have something? We don't want anyone to be stifled." She then called for a vote without offering a public-comment period.
This violation was so blatant that Gray went up to Mark Wood, DMC's lawyer, directly after the meeting and told him the DMC didn't provide a chance for public comment before the vote.
Even though this violation of the law was brought to its attention minutes after the meeting - the DMC did nothing to fix it.
The commissioners were content with breaking the law, content to shut out the voices of citizens. Content, at least, until NPRI called them on it and filed an Opening Meeting Law violation complaint earlier this month.
Now the DMC and school district officials are taking action. But instead of acknowledging that they broke the law, they're striking back at NPRI for defending Nevada's Open Meeting Law. And guess who's paying for their team of lawyers? You, the taxpayer.
These government officials are now claiming that Brager turned and made eye contact with Gray when she said, "Any other questions? Do you have something? We don't want anyone to be stifled."
Brager would have had to turn, because unlike a County Commission meeting, the DMC's meeting was held in a small conference room, and Gray was seated directly behind Brager.
Thus we're presented with two possible versions of what took place. One, Brager did not make eye contact with Gray until after the vote was taken, as Gray has stated in a sworn affidavit, and Brager's comments - "Any other questions? Do you have something? We don't want anyone to be stifled." - were addressed to the commissioners, just as one would expect at the end of a lively discussion. In this case, Brager clearly did not offer a chance for public comment, and the DMC broke the law.
Alternatively, let's assume for the sake of argument that Brager did look at Gray and ask, "Any other questions? Do you have something? We don't want anyone to be stifled."
Did that meet the standard for offering public comment?
No, and here's why. It is the obligation of the chair to clearly, verbally, move from one agenda item - discussion among the commissioners - to the next agenda item, public comment. It is not the obligation of an audience member to try to deduce when a wink and a nod, even if at the audience, is an invitation for public comment or whether a committee chair is just looking around.
This idea of obligation is an important one in our system of government. For example, in a criminal case, the prosecutor has the burden of proof - he must prove the defendant is guilty beyond a reasonable doubt.
In a similar way, a committee chair has a legal obligation to verbally open the public-comment period. Just as a criminal defendant doesn't have the burden to prove himself innocent, an audience member at a public meeting shouldn't bear the burden of guessing when public-comment time is available. It is the duty of elected officials to be clear.
And when, as in this civil case, elected officials aren't clear, the law is clear: "The action of any public body taken in violation of any provision of [the Open Meeting Law] is void."
Government exists to serve the people, but far too often, government officials need cases like this one to remind them of that fact.
Until next time,
Andy Matthews
NPRI President
Remember, if you'd like to receive the latest from NPRI, sign-up for our emails here. Enter your email address in the box on the top right.
Obama calls for more education spending - in school district his campaign stiffed on $25,000 bill for four years
While President Obama's quick to call for spending other people's money on public education, his campaign is extremely slow in paying its own bills - even when those bills are to the very public schools he wants to throw more taxpayer dollars at.
Here's what President Obama said today in North Las Vegas at Canyon Springs High School, which is part of the Clark County School District.
Obama focused his Nevada visit on education, warning that student achievement will drop if he doesn't win re-election and continue to pour resources into schools, colleges and universities.But when it came to paying for his 2008 campaign events held in that very school district, the Obama campaign took almost four years to pay its $25,000 tab. As NPRI's Nevada Journal reports:
President Barack Obama [held] a campaign rally at Canyon Springs High School in North Las Vegas [today], his first visit to Southern Nevada since Nevada Journal revealed that his campaign left taxpayers here on the hook for the costs of events at local public schools.For President Obama it's "spend as I say, not as I do." Unbelievable.
Obama's campaign, Obama for America (OFA), left the Clark County School District with nearly $25,000 in unpaid bills from two rallies at Bonanza and Coronado high schools in 2008.
Neither CCSD nor the Obama campaign would confirm for Nevada Journal the campaign's plans to pay for Wednesday's event.
In 2008, CCSD billed the Obama campaign $53,116.12 for the Bonanza and Coronado rallies. Obama for America originally paid $28,484.40 of the bill, but left $24,631.72 unpaid.
That remainder was not paid until June 2012, following multiple Nevada Journal inquiries. The bill was for 500 hours of school police officer overtime, providing extra security for the rallies.
