Did Henderson violate the Open Meeting Law in winnowing its list of city attorney candidates?

Tuesday, Nov. 15, 2011 | 9:48 p.m.

Henderson officials are defending their use of closed sessions to interview candidates for city attorney, claiming the counsel position does not fall under the provisions of the Open Meeting Law. But the attorney general's office, while not referring to the city's handling of the issue, quoted the part of the law that prohibits closing "the discussion of the appointment of any person to public office or as a member of a public body."

As I reported earlier today in my email newsletter, RalstonFlash.com, the Henderson City Council twice recessed a public meeting to interview city attorney candidates before winnowing them to two -- Josh Reid, one of the senator's sons, and Christine Guerci-Nyhus, the interim city attorney.

I asked the attorney general's office if this complied with the Open Meeting Law -- generally recessing a public meeting to conduct such interview for an appointment -- and spokeswoman Jennifer Lopez told me:

"Your question does not have a simple answer because we would need to know the specific set of facts. However, in general it is understood that under the open meeting law all actions of public bodies "be taken openly and that their deliberations be conducted openly" unless there is an exemption or exception to the contrary. NRS 241.010.

"Additionally, pursuant to NRS 241.030(4)(e) the open meeting law does not "permit a closed meeting for the discussion of the appointment of any person to public office or as a member of a public body."

Do those interviews constitute a "discussion of the appointment"?

Henderson spokesman Bud Cranor said that is the key part of the statute the council considered and that it came up a year ago when evaluating the city attorney -- perhaps not analogous. Cranor told me via email that legal advice at the time found:

“In reviewing this specific issue, please note that 'public officer' is not defined by statute for Open Meeting Law purposes. The Office of the Attorney General has opined that a 'public officer' is a person who

"1. Is appointed to a position created by law;

"2. Whose duties are specifically set forth in law; and

"3. Who is responsible by law for the direction, supervision and control of their agency. OMLO 1975-193."

So, Cranor added, "While the position of City Attorney is created by law - City Charter section 3.060, the City Attorney is defined to be the legal officer of the City and is required to perform such duties as are assigned by counsel; the City Attorney is not responsible for the direction, supervision or control of the City.

"In University and Community College System of Nevada v. DR Partners, 117 Nev. 195 (2001), the president of CSN was found not to be a 'public officer' for open meeting law purposes because the president was wholly subordinate and responsible to the Board of Regents. The Henderson City Attorney by Charter serves as an advisor to the Council but does not possess any power apart from the powers granted to her by Council. The Henderson City Attorney, in effect, has no sovereign powers of [his or]her own – they are simply the main advisor to the sovereign - the City Council and its Chief Executive Officer - the City Manager.

"Subsequent to the DR Partners opinion, the Nevada Legislature enacted NRS 241.031 which specifies individuals who may not be discussed in closed session - including a City Manager. Notably, while the language used in that statute is 'including, without limitation' - a City Attorney or similar position such as County Counsel or General Counsel for the University System is not listed.

"So the Henderson City Attorney - while being the appointed legal officer for the City is not an 'appointed public officer' for OML [open meeting law] purposes because [he or]she has no sovereign power and is not responsible for the direction, control or supervision of the City."

This would seem to be a very thin reed, and perhaps a way to circumvent the intent of the law.

But unless someone files a complaint, we may never know.