Public comment sessions at recent Overton Power District #5 board meetings have been heated. Citizens, mostly from Mesquite, have castigated the board for a lack of transparency, non-compliance with the Nevada Open Meeting Law and ignoring term limits for board members. In a recent interview following the November board meeting, OPD#5 legal counsel Byron Mills explained his view of the board’s responsibility and compliance with the open meeting law and term limits.
“(The) open meeting law (NRS 241) applies to any ‘public body’… 241.015 …defines what public body means, and the open meeting law only applies to public bodies,” Mills said. The two primary requirements that define a public body are that it is created by statutes and be funded wholly or inpart on tax revenue.
“Obviously OPD is created by (NRS) 318.,” Mills added “(NRS) 318 is the General Improvement District statute. That’s what OPD is, a general improvement district. ” But he pointed to the second prong of the definition right out of the statute. “…(the body must) expends or disburses or is supported in whole or in part by tax revenue or which advises or makes recommendations to any entity which expends or disburses or is supported in whole or in part by tax revenue…’ (NRS 241.015.3(a))”
“OPD has no tax revenue. We don’t receive taxes; we don’t accept taxes. Our total income is from services,” he said. Mesquite customers do pay an additional 3-percent fee which OPD collects on behalf of the city.
“We don’t touch it. It goes into its own account,” Mills explained. “We do not receive any of that revenue. That’s not us; that’s Mesquite’s.
“That’s the two prong test to determine if you are subject to the open meeting law,” Mills continued. “One you have to be a government body and two you have to receive tax revenue. So we are not subject to the open meeting law.”
He said although the OPD#5 board is not subject to the law, it has tried to abide by it: posting notices of board meetings and allowing the public to come to board meetings. Mills notes that “Until recently no one has ever come to the board meetings, no one has ever complained … until recently no one’s ever asked for background information. Now we’re changing and that’s fine.”
The second legal question Mills addressed was term limits. He explained that he has advised the board members about term limits since the 2008 Nevada Supreme Court decision that determined term limits were constitutional.
However, he went on to explain his understanding of NRS 318, the general improvement district statutes, and why he felt the board members were not in violation of the law. “How 318 works is … if they put their names in and nobody else puts their names in then… your term continues until the person elected next takes office on January first. (If) no one else takes office because no on runs against you and there is no general election, technically their terms never end.”
The term limit question, however, became moot when the two board members whose terms had extended past the legislative deadline resigned. Craig Anderson’s resignation was effective Oct. 23, 2012, and Dave Anderson’s resignation is effective Jan. 1, 2013. The board accepted their resignations at its Nov. 14 meeting, then appointed Steve Miller of Bunkerville to fill Craig Anderson’s “at-large” seat. The board will appoint a replacement to Dave Anderson’s “dedicated” seat at its January meeting. The new trustee will be selected from a roster of Mesquite residents who have submitted their names for consideration. That meeting will be held at the OPD#5 offices in Mesquite, at 731 Turtleback Road on Jan. 16, 2013, 4 p.m.