Judge rules Remington had no right to attend meeting

Thursday, April 8, 2004 | 9:44 a.m.

Community College of Southern Nevada President Ron Remington and lobbyist John Cummings had no legal right to attend closed Board of Regents personnel sessions considering their alleged misconduct, District Judge Jackie Glass ruled Wednesday.

Both Remington and Cummings were also properly informed under state statute that they would be discussed in closed session and should have known administrative action could be taken against them, Glass said.

Both were demoted to faculty positions in split votes after the sessions held Nov. 17 and 20. They challenged the demotions and sought a temporary restraining order preventing the demotions from going into effect. Glass in December refused those requests.

Glass on Wednesday affirmed both of those rulings after the attorney general's office asked her to reconsider them. The attorney general's office has issued an opinion that the Board of Regents violated the state's open-meeting law by not allowing Remington and Cummings into the closed hearing and by not providing them proper notice.

Frank Cremen, Cummings' attorney, and Kathy England, Remington's attorney, have appealed the Dec. 10 rulings to the Nevada Supreme Court.

After hearing lengthy arguments, Glass stood by her original decision that the board did not violate the open-meeting law in those two instances.

"I've ruled, that's it. I'm not reconsidering," Glass said.

The rulings do not affect several other allegations by the plaintiffs that regents violated the open-meeting law by deliberating, forming consensus and voting during closed sessions.

The attorney general's office in January said the Board of Regents violated the open-meeting law several times in the November closed sessions. In that opinion and subsequent complaint against the board, one of the issues the attorney general's office asked the court to rule on was whether the board violated the open-meeting law by not allowing Remington and Cummings to attend the closed personnel sessions.

In the motion for reconsideration, Victoria Thimmesch Oldenburg, senior deputy attorney general, argues that the Legislature and the law "contemplated and intended that persons who are at risk of a public body taking administrative action against them have the fundamental right to confront the public body that is considering administrative action against them."

Moreover, Oldenburg argues that the law would not permit a public body to discriminate by allowing some individuals into a closed session but not others who are similarly situated. In this case, regents voted in closed session to allow university system Chancellor Jane Nichols to stay and respond to allegations concerning her conduct but did not allow Remington or Cummings the same option.

Glass ruled that, in her reading of the law, there is no such requirement.

The attorney general's office and other plaintiffs also contend that state statute requires regents to specifically inform people that administrative action may be taken against them, and a general notice that they will be discussed, as in the case of Remington and Cummings, is insufficient.

Glass again disagreed, ruling the notice that a person's conduct will be discussed is sufficient.

"A reasonable and objective person would assume that such notice brought with it notification that some form of action regarding one's employment status might occur," Glass said in a Dec. 30 written order. "Nothing by statute requires such notice to have the actual wording 'administrative action may take place.' "

Glass said in Wednesday's hearing and has said in past hearings that the issues of whether the board deliberated, formed consensus or voted during the meeting are what concern her, and that the lawsuits should move forward on those merits.

Walter Ayers, attorney for the university system, reiterated the system's position Wednesday that the attorney general's opinion strays from past opinions on the open-meeting law that allowed public bodies to deliberate in closed session as long as the decision was voted on in open session. Ayers also argued that it was inappropriate for the attorney general to have issued an opinion when there was already litigation pending.

Oldenburg and Assistant Solicitor General Richard Linstrom said they plan to bring those issues before Glass for summary judgment at a later date.