Nevada Open Meeting Law Summary
The Nevada Open Meeting Law was enacted in 1963. NRS Chapter 241 is generally recognized as the Open Meeting Law. In relevant part, the stated purpose of the Open Meeting Law is "to encourage and facilitate, whenever possible, the fullest public participation in all phases of governmental action." This is accomplished in two ways: First, the Open Meeting Law requires that public bodies take official actions at public meetings; second, all deliberations must be made public.
Because Nevada’s Open Meeting Law does not distinguish between a governmental body and a quasijudicial body or strictly between decision-making and advisory boards, its provisions are relevant to the actions of any entity this is established by statute, ordinance, resolution, or other formal action that has the power to make decisions, spend money, or tax. NRS 241.015(6). Thus, the term "public bodies" includes trade associations, public power authorities, political parties, public or private universities, and even professional associations. These entities tend to characterize themselves as "quasi-public body , " but they are still nonetheless regulated under the Open Meeting Law in terms of how it deliberates and makes decisions.
Another important term to know is "deliberation." Deliberation "means the gathering of a quorum of members of a public body to discuss a matter over which the public body has supervision, control, jurisdiction or advisory power." NRS 241.010. Thus, even a gathering of a quorum of members of a public body outside of official meetings and decision-making can run the risk of violating the Open Meeting Law. Indeed, the Nevada Supreme Court has held that the Open Meeting Law "seeks to prevent ‘collusion’ among public officials." See Broadbent v. State Ethics Com’n, 121 Nev. 189 (2005).
Further, if a quorum of a board communicates with one another outside a meeting, such communications are also regulated by the Open Meeting Law. Specifically, it is unlawful for a member of a public body to meet with one or more members of that body, without holding an open meeting, to render a decision on a matter over which that body has supervision, control, jurisdiction, or advisory power. See NRS 241.020(2)(c).
Provisions of the Open Meeting Law
The most important provisions of Nevada’s Open Meeting Law, set forth in NRS 241.020, are as follows:
• Notice. At least 3 business days prior to the meeting, the public body must give the public written or electronic notification of the time and place of the meeting and the proposed agenda for all matters to be considered (subject to a few limited exceptions). The public body must also forward the notice to any other person that requests notice of specific meetings of a public body or matters within the jurisdiction of the public body.
• Agenda. The agenda must contain certain information, such as an identification of the location of the meeting and the time and place of the meeting, a list and description of matters which the public body will consider, and a statement. For example, a statement that the agenda is available to members of the public through the official main office of the public body and at each sub-office and the name and address of the person from whom a copy of the agenda may be obtained. It also requires a statement encouraging persons to attend and provide comments to the public body. Despite these requirements, a public body is not prohibited from considering an item not on the posted agenda if: (a) The action to be taken must be included on the agenda pursuant to an emergency provision of NRS 241.020(3); or (b) It is a topic of reasonably anticipated discussion among the public body.
• Accessibility. Public bodies must make all written materials available to the public upon request regardless of whether it is on the agenda and even if it was not distributed to the members of the public body. Furthermore, the agenda must be prominently posted at the main office of the public body and any other place determined by the public body, or where it regularly meets, and in seven other places in the jurisdiction of the public body not controlled by the public body.
• Openness. All meetings of the public body are required to be open and public. Meetings of certain subcommittees that have the authority to make recommendations to the public body are also open and public. Among the public bodies excluded from the Open Meeting Law are the Legislature itself, temporary or ad hoc committees, or any board, commission, council or other multicandidate body consisting of persons appointed by the Governor for the purpose of preparing the appointment of members of the Nevada System of Higher Education, the State Personnel Commission, or committees for selecting the chief of staff to the Governor.
Application of the Open Meeting Law
The bodies, boards, commissions, councils, departments, and other organizations that are subject to the Open Meeting Law are very broad and extensive. They include, but are not limited to:
Part I – State Level:
Executive agencies, officers, boards, commissions, bureaus, divisions, and other agencies which administer or carry out the functions of state government. NRS 241.015(4)
Part II – Local Government:
Board of county commissioners, city council, board of trustees of a school district, board of trustees of a community college, board, commission, agency, department, office, entity, authority, institution, political subdivision, or other entity of the State or any county, municipality, school district or other political subdivision of the State; a county hospital formed by a county in this State; an irrigation district, cemetery district, gaming district, or other special district created pursuant to the laws of this State. NRS 241.015(5)
Part III – Multicounty and Other Entities:
Any legal or administrative entity of any type that is bought into existence pursuant to legislative enactment, jointly funded by any two or more governmental entities or created by interlocal agreement pursuant to 277.086 of NRS to perform the functions of government. NRS 241.015(5)
Public Rights Under the Open Meeting Law
As a general rule, all meetings of public bodies must be open to the public, and all persons must be permitted to attend these meetings except as otherwise provided in the statutory sections on closed meetings. Specifically, NRS 241.010 provides that "[e]xcept as otherwise provided by specific statute, all meetings of public bodies must be open." (Emphasis added) This means that closure requires the enactment of a "specific statute." It is important to note that this right of access is not a right of participation; attendance alone suffices. The Nevada Open Meeting Law, in Section 1.2 Legislative Findings and Declaration of Public Policy, states: "The Legislature of the State of Nevada finds that: (a) It is essential in a democratic society that public bodies exist and function within the law and that the public be allowed the fullest public participation in their actions, decision and deliberations." (Emphasis added). In light of the foregoing, it has been held that the Open Meeting Law does not confer upon the public a right of participation at meetings of public bodies. The addition of the word "fullest" above, to "public participation of their actions, decisions and deliberations," aforementioned, supports the conclusion that it guarantees no more than the right to be heard upon the final action only, and it does not guarantee the right to be heard upon any deliberative or preliminary matter which involves the exercise of discretion on the part of the local public body. Therefore, it should be emphasized that "'[t]he goal of the Open Meeting Law is that of promoting the appreciation by public bodies and public officers of their responsibility to the people of this state.’" And "[t]herefore, a court should construe the provisions of the Open Meeting Law broadly." An Open Meeting Law violation is, therefore, defined in the following manner: "In determining whether decision-making body is required to satisfy the Open Meeting Law in its deliberations, court must apply a ‘sense test’ and not simply a ‘form test.’" Essential to ensuring compliance with these rules is the requirement that notices of our meetings be both conspicuously posted, generally upon the site of the regular meeting, and sent to persons requesting notice. If a proposed agenda is prepared, including any materials to be considered, both must be available to the public at the same physical location as the place at which the body will meet and at a website for the body, if any.
Common Violations and Consequences
One of the most common violations of the OML is the "serial" meeting, which involves members of a public body discussing an item of public business among themselves outside of the public meeting, particularly for the purposes of determining how they should vote on that item. Serial meetings are prohibited by the OML, and are frequently prosecuted by the AG’s office.
Other common violations of the OML include:
The penalties for violating the OML can be severe , although the chances of being convicted of a crime under the OML are very slim. Any member of a public body found guilty of a misdemeanor violation of the OML is punishable by a fine of up to $500 or imprisonment in the county jail for not more than six months, or both. An action for declaratory or equitable relief may also be brought against any member of a public body alleged to be in violation of the provisions of the OML.
Amending and Challenging a Meeting
Section 9. Amending and Challenging Meetings
The Nevada Open Meeting Law allows for two categories of remedies for a violation of the OML:
1. A formal petition to amend an agenda that was not posted with proper notice; and
2. A petition for a court order to void an action taken at a meeting which did not comply with the OML.
Legal procedures exist to amend the agenda for a meeting after it has been post if the "person authorized to prepare the agenda" (the public body) believes that it is of an "emergency nature." An emergency is a "matter of public safety or health." The topic needed to be added has to be so controversial or so critical that you would have to act immediately on it before the next meeting. "Emergency" does NOT mean a request that has been pending for weeks or months or something which wasn’t included by mistake or by poor planning. You can file the petition yourself, without the assistance of an attorney, but it has to be done according to the rules of the court. If your agenda is amended under the emergency nature rule, you are entitled to attorney’s fees and costs – meaning the taxpayers of your public body will have to pay them.
If action by your public body is not in compliance with the OML, the person who considers himself or herself wronged in such meeting has to petition the district court for an order "declaring the action of the public body void." Because a court is a serious place, lawyers and non-lawyers alike do not generally think it is a good idea to proceed without experienced counsel. In addition to being costly, no one knows how the judge will proceed. He/she may grant your petition, deny it, and/or order a re-hearing. As noted above, attorney’s fees and costs can be awarded in favor of the party bringing the action.
Recent Developments and Interpretations
Recent updates and legal interpretation of Nevada’s open meeting law which could impact public agency operations and public participation
The most recent amendment to the Nevada OML (2019) allows telephonic attendance at public meetings between members of a public body or public officials and members of the public. When an individual presiding over the meeting presides over the meeting by telephone or other electronic means, the public body must maintain a physical location for the meeting within the boundaries of the State of Nevada which is open to the public. The initial bill analysis states that this law change "requires the physical location of the public meeting to be open to the public, the meeting and agenda need to be posted at the physical location, and comments by the public continue to be required to be taken from persons attending the physical location of the public meeting." The amendment further provides that if "any member of a public body or public official is unable to physically attend a meeting because of a disability, illness or other medical condition." Under these circumstances, the amendment would allow the otherwise absent member or official to participate and vote via telephonic or other electronic means without the requirement of a physical location.
Another revision to Nevada’s OML came in 2015 with the addition of NRS 241.0205. This revision addresses serial communications and technological means of communication between members of a public body to discuss or deliberate public business; and specifies that such serial communication and shared use of technological devices are not violations of Nevada’s OML. Additionally, the 2015 amendment authorizes two-way electronic communication (email, text, etc.) between any two members of a public body.
These amendments have been paired with other legislative changes that require public agencies to transition to the electronic transmittal of their agendas, minutes, and so forth, as noted January 29, 2019 post on the Transition to an All-Digital Agenda.
Helpful Tips
A. Prepare and post clear agendas
Even though any member of the public can sue to challenge a meeting, it is crucial to use clearly written and described agenda items (NRS 241.033). To that end, agenda items should state the category of issues to be covered (such as consent agenda), and particularly for individual items, provide greater specificity as to what the action is (see, e.g., SK Northwest, Inc., op. supra), and the parties involved, if any.
B. Post the agendas properly
It is difficult enough having to defend against a citizen’s lawsuit against your public body; it is quite another if the lawsuit is brought because the public entity failed to post the notice legally required for an extra meeting (NRS 241.020(4)). Posting notices at the meeting site, on the internet, and at the county clerk’s office is required in order to comply with the Open Meeting Law, and no less than five people in attendance at the meeting is required. In addition, the minimum time frame for posting the notice at the clerk’s office is at least two working days prior to the meeting. Since "working day" does not include Saturdays, Sundays or legal holidays (NRS 244.010(1)), you only have [insert number of days between meetings] to prepare meeting notices for posting to the general public.
C. Post the packets
By way of a Legislative Counsel opinion, the Nevada Legislative Counsel Bureau stated that packets prepared prior to the actual meeting are also part of the "public record" of the meeting . (Op. Legal 174 (1989)). Thus, packets must be posted along with the agenda (NRS 241.020(2)). Though the open meeting law does not require the packets themselves to be posted on the internet, the packets, if large, may be bulky and difficult to read after being placed on the internet, thus warranting a disclaimer as to the contents and file size. However, packets required to be posted pursuant to the open meeting law should be available on the internet as well as at public libraries and other usual locations for the public to view.
D. Look out for e-mails
In the past, the Attorney General has gone after public body members who discuss, via e-mail or other means, matters to come before the public body. For example, in 1999, a rural county manager sent out copies of the same letter that was put on the agenda to be discussed at the public meeting. After learning that a majority of the Board members had received the letter prior to the public meeting, the Attorney General issued a public reprimand and fine against both the manager and the Chairman of the Board (Op. Legal 99-22). The Attorney General’s Office concluded that the "town meeting approach" in which the Board sought input from members of the community facilitated by the Chairman constituted a violation of the Open Meeting Law.