In their zeal to ensure the financial records of the Nevada Northern Rail Road were in order did three Ely City Councilmen and Ely Mayor John Hickman violate the state’s open meeting law?
According to the minutes of the NNRR board of directors three of the five Ely City Council council men: Dale Derbidge, Bruce Setterstrom, and Marty Westland attended the December 2013 meeting of the NNRR board of directors.
The three councilmen constituted a quorum of the city council and thus their attendance could be construed a violation of the Nevada Open Meeting Law.
In addition to the December meeting the three city councilmen also attended the January 2014 meeting of the NNRR board of directors along with Ely Mayor John Hickman.
According to the Nevada Open Meeting Law any gathering of a quorum of a public body must be publicized with an agenda before the meeting. While exceptions are made for social gatherings the attendance of the Ely elected officials to the NNRR meeting could constitute a violation of the law especially if it was not noticed by the City of Ely and no agenda published before hand.
The Ely City council is currently involved in what can be described as a power struggle with the NNRR.
Officially the dispute is over irregularities in the NNRR audit and the council has run what critics call a full court press for more extended over sight of the Nevada Northern Rail Road operations.
According to both sides last year’s audit of the NNRR revealed a $72,000 loan by NNRR director Mark Bassett to the NNRR comprised of uncompensated business expenses to the railroad.
While it is against general accounting practices for an employee of a company to “loan” money to the same company NNRR supporters claim that the so called red flag raised in the audit is but an excuse in a long grudge match against Bassett and Ely city councilman Marty Westland.
To back their up allegations Bassett and board members released a long list of Westland actions both before and after he was elected to the city council in 2011 where he inserted himself into NNRR operations including setting up a rival corporation, using the NNRR logo, writing up unfounded safety violations, and interfering in a grant application that may have cost the rail road over $10 million.
“I think it is odd that no one said anything about the previous year’s audit that had some of the same issues,” Bassett said. “It was only after the last election where Marty got some of his cronies elected to the council that it comes up.”
In the last city election the self described reform movement took the majority on the Ely City council.
“During the election they complained that the so called Good Ol’ Boy network was using the city council to pursue personal vendettas,” said NNRR board chairman John Gianolli. “Now they are doing it.”
While admitting that he had indeed set up a corporation in 2008 that would seem to be in competition with the NNRR, Westland said that now defunct enterprise existed only to run the northern non-historical part of the rail road.
That plan was abandoned Westland said after plans for two coal fired power plants were quashed by environmentalists and Senator Harry Reid.
While admitting that he used the logo of the NNRR, Westland said that he broke no law since the logo was not copy righted.
What Westland failed to mention that a major feature of his now defunct company was the claim that it would be shipping nuclear waste to the Yucca Mountain repository.
The Yucca Mountain Nuclear Waste Repository as designated by the NWPA Amendments of 1987, was to be a deep geological repository storage facility for spent nuclear reactor fuel and other high level radioactive waste. However it was never opened and in 2010 the Obama administration cut funding to the project.
Westland did add that as a City Councilman he was also a trustee of the Rail Road and as such there should be nothing untoward his involvement.
Trusteeship could also be a defense of his fellow city councilmen and the mayor should a complaint be filed against them for breaking the open meeting law. However there is nothing in the NNRR minutes or the NNRR agenda that indicates a joint meeting between either the city council or the rail road’s board of trustees.
According to Nevada law violations of the Open Meeting law carry civil as well as criminal penalties and can garner the attention of the state’s ethics commission.
While neither the civil or criminal penalties are in any way onerous a finding of violation by the Ethics Commission could carry with it what has been described as a political death sentence.
Depending on how severe the violation the commission could in theory assess fines in the thousands of dollars and remove the offenders from office.
Westland narrowly escaped a previous investigation by the ethics board by the grace of last year’s election when his newly elected political allies voted to de-fund an investigation into what was called a major conflict of interest regarding land sales in Ely.
The councilmen and mayor may have already been warned. In Wednesday’s NNRR meeting just two Ely city councilmen attended and did not sit together.
Fiction writing and supposition must sell more papers. But if this sort of article — with misstatement of the law and is offered as news, I have bought my last Desert Advocate. There are three points of error.
1. The Nevada Open Meeting Law clearly states: a violation requires DELIBERATION, not just watching a meeting. Multiple members amounting to a quorum of a public body can attend any meeting so long as they do not deliberate It is no different than some member(s) attending and others watching the recorded video. It is very unprofessional for this newspaper to assume there was a violation and discuss the appropriate penalty without making it clear that no violation has been found in an investigation that is less than 10 days old.
Deliberation is what makes for a violation:
Per the Mevada Open Meeting Manual, in Del Papa v. Bd. of Regents of University and Community College System of Nevada¸114 Nev. 388, 400, 956 P.2d 770, 778–779 (1988) the Court said: “the constraints of the Open
Meeting Law apply only where a quorum of a public body, in its official capacity as a body, deliberates toward a decision or makes a decision.”
There was no deliberation at the Railroad Management Meeting by members of the City Council.
2. Moreover, it is false to state in this article that “Westland narrowly escaped a previous investigation by the ethics board by the grace of last year’s election when his newly elected political allies voted to de-fund an investigation into what was called a major conflict of interest regarding land sales in Ely.” The ethics board was NEVER involved. Outgoing, disgruntled Council Member Shane Bybee DECLINED to put his concerns before the Nevada Ethics Board, instead taking the unprecedented action to have the city spend money to investigate something that he should have reported to the State — which investigates for free, by the way. His motives were unclear/unclean, and I believe his “report” was made for personal revenge in the month before he left office. (One might ask if Mr. Bybee should have been reported for misuse of office in violation to the Ethics Commission.) It was proper that the Council decided not to spend money on something it did not have authority to do and that was a State responsibility. Oh yeah, ultimately, the State didn’t even bother to investigate it. The only “narrow miss” was the waste of money. Call Bybee’s action what you want: a cheap shot, a red herring, or personal revenge — it had no merit and went nowhere. Fortunately, the costs were limited.
3/ “Officially the dispute is over irregularities in the NNRR audit and the council has run what critics call a full court press for more extended over sight of the Nevada Northern Rail Road operations.” The Audit report, from an independent Utah-based CPA firm wrote the management letter that documented the “irregularities.” While they are not new problems (there were reported in prior audits), even Chairman Gianoli has said the loan practices must stop, and then negotiated a written promissory note for the $70+ thousand owed by the railroad. I think he was jarred into action by practices he would not tolerate in his own banking business. Better late than never, regardless. Its a good thing that both the management board and city council are now more attentive to the peculiar practices.
It is only Railroad Director/Employee Mark Bassett and two railroad supporting businessmen in Ely that have spouted off about impending death of the railroad, employees losing their jobs in March, and Senator Reid taking money away from the Railroad.
The Advocate has one thing rights: This is about addressing audit recommendations, finally. But, I guess that bare fact doesn’t sell papers.
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would your reaction and comment been the same if it had been three of the previous “old boy” councilmen who attended the meetings rather than the “reformers”?
Yes, Howard. I deal in fact, identify opinion when I express it, and seldom engage in harmful speculation. This was really below standards.
I happen to think it is an accurate and well written article. It sure is funny how the word “Fact” is used in Ely. It is a fact that Marty engaged in what is unquestionably suspect activities when it comes to his relationship with the railroad. You also have attacked Mark, unfairly. Your opinion is just that, your opinion. I have not seen any evidence that would justify your righteous indignation.
That last comment is directed at Mike Coster.