Erich Obermayr: One less hiding place for government officials
April 14, 2018
The Nevada Supreme Court recently handed down an important and far-reaching ruling, reaffirming public access to the workings of our government or, to put it another way, granting us a window on the proverbial sausage factory.
The court unanimously ruled when government officials use personal devices, such as cell phones and email, to conduct public business, then those communications become part of the public record under the Nevada Public Records Act. The ruling stems from a lawsuit brought by the Comstock Residents Association against Lyon County and Comstock Mining, Inc. (CMI) over a master plan amendment and zoning change potentially allowing open pit mining in the town of Silver City. While considering the application, the commissioners communicated among themselves, county staff, and mining company officials and consultants using personal cell phones and email. Comstock residents petitioned the lower court for access to these communications — arguing they could include evidence of conflicts of interest and other possible improprieties. The petition was denied.
In overturning the lower court, Justice Michael Cherry underscored the importance of the Nevada Public Records Act to basic democratic principles. He wrote in furthering these principles, "we begin from a presumption that public records must be disclosed to the public." And in clarifying the true scope of "public records," the court put government officials on notice they can't escape scrutiny simply by switching to their own cell phones or email.
This is a clear win for openness in government, but the Comstock Residents' lawsuit — scheduled for trial on April 23 — shows what the decision means in practice. Comstock Residents allege they were denied due process because two Lyon County commissioners had conflicts of interest, and should have recused themselves. One received an inordinately large — $17,500 — campaign contribution from CMI and its associates, while another had a lucrative, ongoing business relationship with the mining company. It had also become obvious these same two commissioners had abandoned any pretense of fairly weighing the merits of CMI's application. Instead, they were acting in concert with CMI and its consultants to get it approved. Finally, the proposed land-use changes were almost unanimously opposed by the residents of Silver City — the people whose lives and property would be most severely impacted by the commissioners' decision.
None of these factors, taken by themselves, are necessarily wrong. Politicians routinely — albeit preposterously — argue money has no effect on their decision making. County commissioners certainly can advocate for individual businesses, and they invariably make decisions many of their constituents oppose. But when all three come into play at once — to an exaggerated degree — then we have to start asking at what point the appearance of bias or favoritism actually translates into denial of due process. At what point has a commissioner abandoned the public interest in favor of one special interest? Or in favor of their own self-interest? And could we ever figure out how or why this happened? Who knows, but a good place to start looking would be somewhere a commissioner might assume what they said and did would never see the light of day. Fortunately for us, and thanks to the Nevada Supreme Court, there's now one less such hiding place.
Erich Obermayr is a writer and active community member who lives in Silver City.