Nevada Dental Board Commits Open Meeting Law Violations

On August 18, 2016, the Budget and Finance Committee for the Nevada State Board of Dental Examiners’ (“NSBDE”) held a public meeting.1 At the beginning of the meeting, two dental licensees, Adrian Ruiz, DDS, and Albert Ruezga, DDS, made public statements to the NSBDE Committee. Dr. Ruiz requested the NSBDE to provide their licensees with a breakdown of “legal expenses” for its fiscal year 2016-2017 that listed $270,000 for “Hunt, Drizin, and AG.” Yet, the Dental Board had paid its outside counsel, John Hunt, Esq., $278,000 in 2015. Ruiz correctly stated that these figures not only made no sense, but that they were “in direct conflict with the [Legislative Counsel Bureau (”LCB”)] audit recommendation to reduce the use of outside counsel to 20%.” Next, Dr. Ruezga spoke and requested “the Budget & Finance Committee abide by the recommendations provided by the LCB Audit in that it reimburses all identified licenses the full amounts they were overcharged” for NSBDE “investigations/monitoring costs.”3 In Ruezga’s case, the NSBDE overcharged him $1,757.00. Following their comments, the NSBDE’s attorney, John Hunt, made a public comment of his own. Hunt requested the past Stipulation Agreements for these two dental licensees, who dared to show up at the public meeting to share their concerns with the NSBDE, be “entered into the record as public comment for the record so the public may see these documents.” Hunt’s comment included numerous alleged violations committed by Dr. Ruiz and thus, as a member of the NSBDE’s Public Body, discussed the character of Ruiz in violation of Nevada’s Open Meeting Law (“OML”).4

Later, during the meeting Dr. Ruiz asked if he could speak after Agenda Item 3(i) had been discussed and Hunt told him, “No, you cannot.” However, the NSBDE’s Agenda clearly stated ““[P]ublic comment is welcomed by the Board, but will be heard only when that item is reached and will be limited to five minutes per person.”5 While such public comment on an Agenda item is “at the discretion of the Chair,” Hunt inappropriately acted as Chair when, in fact, he is a member of the public body but not a member of the NSBDE. Such action was another violation of Nevada’s Open Meeting Law.6 During the meeting, Hunt allegedly used his phone in an apparent attempt to intimidate licensees by recording them and their conversation in violation of a Nevada Criminal Statute.7 This resulted in a complaint being filed against the NSBDE with the Attorney General’s Office by Erika Smith, DDS, for an Open Meeting Law violation. Two other complaints were filed against the NSBDE by Dr. Ruezga and Dr. Ruiz, respectively, for the other Open Meeting Law Violations, all of which occurred because of the actions of NSBDE’s attorney.

After stating the nature of the complaint, each licensee requested the Attorney General’s (“AG”) Office consider such actions as: (1) reprimanding the NSBDE publicly; (2) requiring an apology from NSBDE for publicly slandering its licensees; (3) striking public comments made by NSBDE’s attorney “on the record”; (4) voiding the actions taken by NSBDE during its August 18th meeting; (5) fining NSBDE Committee Members $500 each; (6) charging NSBDE Committee Members with misdemeanors; (6) charging NSBDE’s attorney with a felony; and (7) Imposing a $2000 liquidated damages fine against NSBDE’s attorney.6 Moreover, the licensees noted in their complaints that although the NSBDE’s attorney, John Hunt, Esq., is not a Governor-appointed member of the NSBDE, his is a “public employee,” which is defined as: “any person who performs public duties under the direction and control of a public officer for compensation paid by the State….”9 Consequently, as Hunt’s employer, the NSBDE, is responsible for the acts of its employees.10 This means that, as Hunt’s collective employer, all public members of the NSBDE are jointly and severally liable for the actions their attorney under Nevada Law.11

Nevertheless, when these dental licensees sought redress from the OML Division of the AG’s Office for the wrongs committed against them by the NSBDE the AG attorneys found the NSBDE had done nothing wrong. The AG’s nonjudgment of the NSBDE’s obvious violations makes a mockery of Nevada’s Open Meeting Laws. A Governor-appointed body should not be allowed to permit its public employees to behave in an irresponsible manner without accountability for their lack of supervision. This should be especially true for an attorney who is ostensibly held to a higher standard by his profession whereby his conduct is prohibited from including “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”12

James Madison once wrote, “a popular government, without popular information, or the means of acquiring it, is but a prologue to a Farce, or a Tragedy, or, perhaps, both.”13 Most everyone likes the idea of transparent government. Except for the government. Nowhere is this more evident than with the NSBDE. A republican government depends on openness. Discouraging licensees from sharing their concerns during public comment by allowing NSBDE’s attorney to publicly slander and libel them “for the record” is reprehensible. The NSBDE should be encouraging licensees to participate in the public process, not intimidating them from showing up for fear of retribution. Therefore, if the NSBDE refuses to regulate itself by controlling the acts of its employees, and the AG refuses to hold the NSBDE accountable for its failure to act as employer, then it will be up to the Legislature to decide what changes in the law must be made in order to prevent violations from being inflicted upon other Nevada citizens and licensees at future NSBDE meetings.

by Daniel F. Royal, DO, HMD, JD
Turtle Healing Band Clinic, Las Vegas, Nevada