Regents again face dispute over open-meeting law

Monday, Aug. 16, 2004 | 11:05 a.m.

Interim Chancellor Jim Rogers' attempts to resolve the higher education system's problems with the open-meeting law have led to questions about whether his solution is violating the law.

Faced with a complaint from the attorney general's office that alleges violations of the law, Rogers is trying to get members of the Board of Regents to agree to a settlement in a private conference this morning.

He also has been trying to gain approval of a settlement worth more than $400,000 to end former Community College of Southern Nevada President Ron Remington's lawsuit over Remington's ouster from his position.

Rogers has gathered signatures in private on the Remington proposal and has asked regents to meet this morning in a private video-conference on both.

Rogers told regents in a memo on Friday that he expects them to make some final decisions concerning both settlement proposals this morning.

"I ask that in the conference calls with (attorneys) Tom (Ray), Brooke (Neilsen), and me that you determine how we are going to proceed," Rogers said. "I would like to get these matters resolved before the Board of Regents' meeting on August 19 and 20."

Today's meeting was not publicly noticed or put on an agenda. Lawyers in the attorney general's office said it was not required to be.

But regents are questioning whether they violated the law by signing off on the settlement agreements.

"He can talk to us individually without being in closed session, without it breaking the open-meeting laws, but any action we take or anything that is remotely like some kind of action has to be out in the open," Regent Tom Kirkpatrick said. "I suspect it may break the law."

The private meetings come as the regents have been under fire for actions in a closed meeting that led to the ouster of Remington and former CCSN lobbyist John Cummings, as well as other actions that have been alleged to violate the law.

In a complaint filed earlier this year, the attorney general's office called the regents "serial violators" of the law, although it backed off that term in a settlement agreement.

Nevada statute allows public bodies such as the Board of Regents to meet privately to discuss litigation or potential litigation with their attorneys, and even allows government bodies to "deliberate toward a decision," behind closed doors, Deputy Attorney General Neil Rombardo said.

But the statute does not allow government bodies to take action in these private sessions, Rombardo said. Their attorneys may act on what they perceive to be the consensus, but any votes must be done in a public meeting.

Public bodies are also allowed to receive information privately from staff members, including executive officers such as Rogers, as long as the same exact information is passed along to each member.

What is illegal, Rombardo said, is holding "serial conversations," where a staff member talks to one board member and then passes that conversation onto another board member, or when board members discuss with each other what they have been told by a staff member.

Rombardo said he could not comment on whether Rogers strayed over the line in his private conversations with regents without first investigating the facts, but Rombardo said it did raise a potential issue.

"I'm a firm believer in the open-meeting law," Regent Bret Whipple, a criminal defense lawyer, said. "These meetings raise an issue, but the chancellor was in charge."

Kirkpatrick and Whipple said they would rather discuss the proposed settlement in a public meeting.

"I just think it's much safer," Kirkpatrick said.

Regent Howard Rosenberg similarly said he was confused over whether regents could sign a settlement agreement outside of a public meeting, but that he too was trusting the chancellor.

Rogers, who is also an attorney, said this morning's meeting was just for information, and that there would be no vote or other action taken. If regents decide they want to take a formal vote, that will be done in a public meeting, Rogers said.

"We are going to talk this morning about the two issues, because they are really intertwined," Rogers said. "We cannot settle the attorney general's case unless we settle the Remington case."

Rogers would not discuss the previous settlement with Cummings in which regents did sign a settlement agreement in private.

"The really important issue is to get this behind us one way or another," Rogers said.

Neilsen, one of the board's attorneys, said that because meetings that discuss litigation are exempted from the open-meeting law, regents may vote or take action in private.

"I've never heard of a ruling that says you have to go into open-meeting to take action," Neilsen said.

There is also no board policy requiring regents to take formal action on any lawsuit, Neilsen said, as the board is rarely directly involved in most of the suits brought against them or institutions in the University and Community College System of Nevada.

The Board of Regents has been asked to sign off on these particular suits only because they are the result of board action, Neilsen said. Only the chancellor's signature and Regents Chairman Stavros Anthony's signature are required on the settlement proposal for Remington and the attorney general's office.

If no board action is required by board policy, that may be a loophole that allows the board to give its approval in private, Rombardo said.

But while Rogers and the regents may be following the letter of the law, they may still be circumventing the intent for openness in government.

"If board action is required to approve the settlement agreements, which it seems like it should be since the Board of Regents was the one sued, then any action should be done in public," Rombardo said.

Kirkpatrick was one of 11 out of 13 regents who privately signed a settlement agreement for Cummings, who regents demoted at the same infamous November meeting as Remington. Kirkpatrick said he signed the contract only because Rogers asked him to to help the higher education system move forward, and he didn't think about the legality of signing at the time.

Kirkpatrick said he has not signed the proposed settlement agreement for Remington, both because he disagrees with the terms and because he thinks the proposed settlement should be discussed in public.

Remington's proposed settlement agreement includes a $200,000 buy out of the president's contract, $125,000 or more in legal fees, the title of president emeritus and a pay out of $10,000 annually for seven years as an honorarium for the title, Kirkpatrick said.