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Analysis: The politics behind the Q1 ballot question

by bob
Graduation caps

This article originally appeared in ThisIsReno.com.

Ballot Question 1, which would remove the Nevada System of Higher Education’s Board of Regents from the Nevada Constitution, has received broad support. 

Former NSHE officials, the Nevada Farm Bureau, politicians on the left and right, building trades groups, EDAWN, Las Vegas media and the progressive group Battle Born Progress all endorse the effort to alter Nevada’s higher education system.

“Over the decades, the board hasn’t done itself any favors by asserting that it has more power than it actually has while attempting to escape legislative accountability,” the Las Vegas Review-Journal’s editors wrote, advocating for voters to vote yes on Q1. “There’s no reason this panel should be given the protections of a ‘fourth branch of government.’”

Dysfunction within NSHE, Q1 supporters say, is legion with no sign of improvement.

“Nevada Farm Bureau has joined the coalition of leaders in support of Yes on Question 1 because we believe that passage of this ballot question will bring about improved accountability, improved oversight and enhanced transparency for the Nevada System of Higher Education,” said Doug Busselman, Nevada Farm Bureau’s executive vice president. 

The ballot question arose from investigative reporting by Bethany Barnes, then with the Las Vegas Review-Journal, who found NSHE leaders pulling a fast one on legislators.

“Nevada System of Higher Education officials actively worked to undermine the Legislature’s effort to overhaul college and university funding models in recent years, going so far as to present a false document to lawmakers and joking about it afterward, emails obtained by the Las Vegas Review-Journal show,” Barnes reported in 2016

That incident demonstrated to legislators a lack of good faith when dealing with the unwieldy higher-ed system. Legislators were frustrated by a lack of recourse other than to approve NSHE’s budget. Voters elect regents, the legislature approves NSHE’s budget, but the system operates under its own governance structure. 

With its credibility tattered, NSHE has been paying the price ever since the 2016 scandal. Legislators swiftly passed AJR5 — Q1’s precursor legislation — the next session, months after Barnes’ reporting. It quietly passed again — since it’s a constitutional amendment — in the 2019 session, thereby putting Q1 on the November ballot.

Elliot Anderson
Elliot Anderson

Elliot Anderson, a former Las Vegas Democratic assembly member, helped spearhead AJR5 with colleague Senator Joyce Woodhouse.

“I kind of got tired of problems at the system of higher education,” he told This Is Reno, speaking as a past legislator. “I felt the Board of Regents thought that it could not be held accountable by the legislature, and by others outside of the system. I have a basic American precept in mind at this time that all of us need to feel as though we can be held accountable.”

Selective transparency at NSHE

Indeed, in the years since AJR5’s original passage, critics noted continued problems at NSHE.

There’s the regent, Kevin Page, who demanded special favors in 2015 for a relative attending UNLV. That only came to light by reporting in the Las Vegas Sun in 2019. Regents at the time initially refused to comment on Page’s transgressions. A follow-up Sun article said Page was well versed in securing special favors for himself and family members. Regent Rick Trachok later condemned Page’s behavior but allegedly refrained from providing details as to how Page would be disciplined, if at all.

There’s the regent who accused the board chair of unethical and allegedly illegal actions after a failed search for a new chancellor in 2017.

There’s the regents’ in-house attorney, Dean Gould, scolding one of his own bosses, accusing her of “child speak.” Gould then doubled-down with further insults to Regent Lisa Levine after the incident went viral online in August. 

NSHE officials won’t say what happened with Gould; he was mysteriously absent from subsequent meetings. The Nevada Faculty Alliance demanded he be disciplined; instead, it was revealed the regents quietly hired a California attorney — for nearly $10,000 — to provide advice to the regents on how to deal with their own legal counsel’s behavior.

Then there are the faculty groups concerned about NSHE’s lack of accountability. TMCC faculty, feeling snubbed by campus leadership, pleaded with regents and the chancellor for redress after what they said was an autocratic and toxic atmosphere at the community college. 

They didn’t get it, and the only recourse was to take TMCC to court. At least three lawsuits were filed. One case was dismissed, another is pending and one was settled out of court. It got so bad at TMCC, the Nevada Faculty Alliance threatened early this year to censure President Karin Hilgersom

“Due to the toxic, fear-ridden, and deteriorating culture at TMCC we are now seriously considering such a move,” Faculty Alliance representatives wrote in March.

Once the threat was issued, though, some faculty advocates said they were iced out of conversations with NSHE officials. Their threat appears to have gone nowhere, and Hilgersom got a contract extension this year that goes until 2024.

These situations can be caustic and costly. Faculty groups can’t even get NSHE officials to provide information about faculty buyouts, an issue germaine to their own members.

This Is Reno put the latter case to the test. We ordered from NSHE the results of their own policy about employee buyouts passed by the Board of Regents in early 2019. That policy enshrined a mandate for NSHE to produce an annual report of how much each institution was spending to sever ties with employees. Officials had been concerned with costly, confidential settlements with faculty and administrators, and NSHE officials wanted to reduce those expenses.

But a year after passing the new policy mandating an annual report of those expenses, and their rationales, NSHE hadn’t even updated its own handbook of regulations.

“After a quick review of your request, I noticed Title 4, Chapter 3, Section 53 of the Handbook does not exist,” said Zelalem Bogale, an NSHE attorney, when This Is Reno requested a copy of the report in February.

He was reminded the policy was passed a year prior. Then he said it would take a month to compile the information that should have already been produced for the regents, since the issue was slated to be discussed at the next Board of Regents meeting in mid-March.

On March 20, more than a month after the public records order, what NSHE provided was a massively redacted report with scant details. 

NSHE refused to disclose any more information, such as why there were buyouts and what prompted the settlements. 

Another records order placed to NSHE was met with similar obstinance. NSHE’s attorneys — who make many of the major decisions and recommendations for the system and its institutions — redacted all of their communications with one another, citing attorney-client privilege. 

“Greater oversight and accountability of the general counsels at each institution is needed,” said Kent Irvin with the Nevada Faculty Alliance. “Currently, the general counsels report to the presidents which incentivizes them to act as the presidents’ personal attorneys rather than serve the institutions as a whole.”

TMCC’s attorney, John Albrecht, says his emails are privileged communication and therefore exempt from the Nevada Public Records Act.

“So many emails between [my assistant] and me are redacted as attorney work product,” he said. “Also, there are many emails between Joe Reynolds and me. Joe is the NSHE chief general counsel and I am the TMCC attorney. Again, those will be attorney work product.”

Courts are beginning to question attorney-client privilege excuses by hired and in-house attorneys who refuse public records orders by claiming their work is exempt from the Nevada Public Records Act.

“[Washoe District Court] has already ruled that, as a matter of law, the attorney-client privilege only applies to ‘confidential communications made between the client and the client’s lawyer…for the purpose of facilitating the rendition of professional legal services,’” said Robert Fellner of the Nevada Policy Research Institute, commenting on the beleaguered Incline Village General Improvement District, whose then-attorney Jason Guinasso claimed his emails, with titles such as “lunch,” were exempted from public records laws.

Judge Lynne Simons disagreed. She found IVGID and Guinnasso violated the Nevada Public Records Act.

“It is legally insufficient to provide a blanket assertion such as, ‘all requested emails are either privileged or are not considered public records,’” she ruled.

NSHE, like many tax-supported entities, continues to generously redact its records, however, despite the state’s public records laws that mandate openness of public records and warn agencies to withhold information cautiously.

Bogale wrote of the employee settlement report’s massive redactions: 

“The primary legal basis for the substantial redactions is confidential personnel information. See NSHE Code, Title 2, Chapter 5, Section 5.6.2; NAC 284.718(j). Other legal bases include confidential attorney client-privilege, see NRS 49.095, and/or confidential attorney work-product, see Wardleigh v. Second Judicial Dist. Court, 111 Nev. 345, 357, 891 P.2d 1180, 1188 (1995); Hickman v. Taylor, 329 U.S. 495, 510–11 (1947). By providing these records, I believe NSHE has fulfilled your PRR. See NRS 239.0107(1)(c). We will, therefore, close this request.”

Of course, we protested: “As you are aware the [Nevada Public Records Act] and associated case history mandates any redactions or claims to confidentiality must be construed narrowly; NSHE, in this case, has made no effort to do so. I’m kindly asking you to reconsider these redactions. We are confident the reasons for why NSHE expended tens or hundreds of thousands of dollars a year in employee settlements are clear matters of public interest, particularly since NSHE created a policy to examine this very issue.”

Bogale wouldn’t budge. 

“Originally intended to be completely confidential, these reports contain large amounts of confidential personnel information,” he said. “Applying the NPRA in good faith, we provided as much information to you as we could under the law.”

The only recourse to get this information would be to take NSHE to court — an effort that, if funded, likely would have forced NSHE to reveal more than it claimed it had to. 

Until then, taxpayers don’t get to know how their dollars are being spent — because NSHE said so.

Opposition to Q1 

Vocal opponents of Q1 are not easy to find — NSHE itself remains mostly mum on the ballot question — but outgoing Regent Jason Geddes is opposed to it.

Jason Geddes
Jason Geddes

“Make no mistake about it, a vote to pass Question 1 will remove your constitutional right to elect your representative. When the founders of our great state crafted the Nevada Constitution, they included creation of the State University, later to become the Nevada System of Higher Education (NSHE), and put it under the control of an elected Board of Regents to oversee its operations,” he wrote in an opinion to the RGJ.

The phrasing here is misleading. Q1, if enacted, legally alters the constitution to give more power to the Nevada Legislature over NSHE. There’s nothing unconstitutional about that; quite the opposite. 

Legislators could change the structure of the regents, but they may not. Either way, if Q1 passes, the constitutional amendment has been lawfully enacted.

Geddes continued: “Removal of your right to elect your regent to oversee higher education in Nevada is clear in the legislative minutes by comments of the bill’s sponsor, who stated in 2017 that ‘I have proposed a two-piece Nevada higher education reform act’ and in 2019 that it ‘allow(s) more flexibility in considering reform proposals.’ The second piece of legislation was Senate Bill 354 that sought to reconfigure the Board into a hybrid board of five elected and four appointed regents, and reduce the total number to nine. There is also nothing to stop the Legislature from making the Board entirely appointed.”

It’s true Q1 enables the legislature to recraft NSHE’s structure, but it remains to be seen if that will happen. And having appointed regents is not a sky-is-falling scenario either. Many states maintain that governance structure, or a blend of appointed versus elected regents. Functionally, each structure is a mixed bag in efficacy and accountability, but some argue appointed boards of trustees for higher education tend to be more functional.

“Generally, appointed boards, if the governor takes care, tend to be more effective,” Richard Novak, executive director of the Center for Public Trusteeship and Governance at the Association of Governing Boards of Universities and Colleges, said in 2004. “Appointed boards tend to have a broader view of the world.”

Former assembly member Anderson said the current system in Nevada disincentivizes accountability and transparency. He said Q1 is meant to fix that.

“Whatever happens at the legislature has to happen with a lot of buy-in with stakeholders,” Anderson said. “[This is] about making people feel as though they can be held accountable.”

Legislators now only have recourse over NSHE’s budget, he added. “We need to provide additional avenues for accountability…like every other agency in state government.”

Nevertheless, that uncertainty — giving the legislature free reign to reform higher education — rightfully makes some uneasy. Opponents are correct to point out that is problematic, as it could politicize higher education based upon who is in power. 

“It would make the Board a statutory body whose structure, membership, powers, and duties are governed by those existing statutory provisions, subject to any statutory changes made through the legislative process,” the ballot question’s explanation states.

Assemblywoman Teresa Benitez-Thompson gave her reasons for not supporting the bill. 

“I believe the Constitution of Nevada set up a system of checks and balances: The Legislature controls the purse string of the Nevada System of Higher Education, and the citizens of Nevada elect the Regents,” she said. “I believe Nevada’s Legislature and Nevada’s citizens have sufficient ability to impact higher education with two significant pieces of leverage: money and votes.”

Should Q1 pass Nov. 3, the structure of Nevada’s system of higher education will be propelled into the unknown. A Democrat-controlled legislature and a Democratic governor, who has the power to approve whatever changes to NSHE legislators propose next year, could increasingly politicize the system indefinitely. 

Whether NSHE’s never-ending dysfunctions deserve this new reality is now up to voters.

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