A lawyer for Douglas County says it was legal for Election Commissioner Dave Phipps to keep the public out of a meeting designed to provide Phipps feedback about changes in polling places.
Nebraska's open records law says all “public bodies,” including advisory committees, must be open to citizens.
But the county's civil attorney, Diane Carlson, said the informal advisory panel formed by Phipps doesn't appear to meet the legal definition of a public body.
Phipps “could make (the meeting) public if he wanted, but I don't think there was any violation,” Carlson said.
Mike Cox, a First Amendment attorney based in Omaha, said Phipps should have let the public attend.
“My gut reaction is if it's public business, it ought to be conducted in public,” Cox said.
Phipps created the committee after he was criticized for closing nearly half of Douglas County's polling places without seeking public comment.
He said he wanted the committee to provide feedback before he reopens some polling places for the November general election. The next meeting is scheduled for Wednesday.
Phipps has said he plans to hold no public forums about polling place changes. He will, however, solicit feedback on his website, he said.
Phipps said he closed the first meeting because he wanted committee members to feel they could “speak freely.”
Nebraskans for Civic Reform, a voting rights group, asked the Attorney General's Office to review Phipps' decision, said Executive Director Adam Morfeld.
The office cited a 1995 legal opinion by then-Attorney General Don Stenberg.
That nonbinding opinion said a similar advisory committee to the Omaha mayor was not a “public body” but rather part of the mayor's management structure.
“We do not believe that the board is subject to the public meetings statutes as they are currently drafted,” Stenberg wrote in that opinion.
Phipps said he consulted Secretary of State John Gale's office, which told him he didn't have to hold the meeting in public.
“They were certain of it,” he said.
According to the Nebraska open records law, a public body includes “all study or advisory committees of the executive department of the state of Nebraska.”
Carlson said she doesn't believe the Election Commission is considered part of the state's executive branch.
Phipps is appointed by the governor. His office budget is set by the county, which is a political subdivision of the state.
Carlson said the situation might be different if the advisory committee were an official body of the county or state, or if it made binding decisions, she said.
Preston Love Jr., who represents north Omaha on the committee, said he plans to ask the committee to vote to open future meetings.
“Where did he (Phipps) get the idea that we couldn't speak freely? Where did that come from?” Love asked. “It didn't come from me.”
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