City Officials Obstruct Clean Air Petition Initiative

June 5, 2018, Mesquite NV

To: Mesquite Mayor Al Litman Councilman David Ballweg Councilman Rich Green Councilman George Rapson Councilman Geno Withholder Councilman  Brian Wursten.

From: Ballot committee members for the Mesquite Citizens’ Initiative for Clean Indoor Air.

Dear Mayor Litman, Mesquite City Council members Ballweg, Green, Rapson, Withelder, and Wursten,

As ballot committee members for the Mesquite Citizens’ Initiative for Clean Indoor Air, we write now to share our deep concern over recent developments from Mesquite elected city leaders regarding the proposed initiative for a Mesquite Clean Indoor Air Ordinance now circulating to place the measure on the November 2018 ballot. We note the initiative petition is circulating for signatures from Mesquite voters.  We have not submitted the initiative petition to the Mesquite clerk for certification.  Once the clerk has received and certified the petition as having the necessary valid signatures, the proposed ordinance would then be reviewed by the city council for adoption or referral to the November ballot as outlined by Nevada law. There are Nevada statutes that govern and protect the rights of citizens to create laws by initiative.

As you know, the initiative process is a reserved right of direct democracy for the citizens of Nevada and the citizens of Mesquite as provided by the Constitution of our state. As described by Dr. Candace Kant in her overview of the Nevada State Constitution:

Direct Democracy

As a means of providing accountability between elections, the Nevada Constitution also establishes three (3) processes of direct democracy: initiative, referendum, and recall. Nevada’s original Constitution  did  not  provide  for  any  of  these  provisions  (and neither does the federal constitution). Amendments to the Nevada Constitution  enacted  during  the  Progressive  Era  of  the  early twentieth century incorporated these direct democracy processes into its framework. Referendum, recall, and especially the ballot initiative gives Nevadans a direct influence in government and law by   allowing   them   to   completely   bypass   the   legislative   and executive branches.

As we stated in our previous letter to you, we do not take this action of direct democracy lightly. We believed that we had no other choice given the inaction of our local elected officials and stated:

“Based upon the science and related research on the health and economic benefits of a comprehensive clean indoor air policy it is not acceptable to us and the majority of the Mesquite community not to address this serious public health problem. It was made clear that a majority of our representative self-government body refuses to even discuss such an ordinance that will save lives and money in our community by making public indoor spaces smoke-free.

We believe your refusal to take action ignores the health and welfare of Mesquite residents, workers and visitors and the costs to our community of millions of dollars each year. We are now taking this action because inaction is not an option. Every elected representative should act to protect the public health and to protect taxpayers when there is a clear choice such as this situation.”

Now it appears to us that there is a concerted effort by our Mesquite elected officials to “stack the deck” and create an unfair process against this pending citizen initiative via your public actions and comments including discussion at the May 8th city council meeting.  Several community members alerted us to the comments by council members at that meeting, expressing concern on the issue of fairness.

We also question if you are correctly following the procedures outlined for municipal initiatives in Nevada state law.

To us this is simply inappropriate and disappointing since, on multiple occasions, Mesquite elected officials, including the mayor, have encouraged us to use the initiative process.

Among our specific concerns.

City leaders’ calls for business and citizen comments oversteps and doesn’t follow Nevada law.

The City Council voted May 8th to solicit comments from local businesses and citizens regarding “potential financial changes to the taxes and fees paid to the City of Mesquite” if voters approve the Clean Indoor Air Initiative. We believe this action oversteps and doesn’t adhere to Nevada law.

Nevada law governing local initiatives, NRS 295.205, states that “upon receipt of a petition for initiative or referendum placed on file … the city clerk shall consult with the council to determine if the initiative or referendum may have any anticipated financial effect on the local government if the initiative or referendum is approved by voters.”

“Anticipated financial effect on the local government” accounts for costs to city government to implement and enforce the ordinance. NRS 295.205 makes no reference to “changes to taxes and fees” paid to a city. It also doesn’t refer to carrying out a study of potential impacts on local business.

Under Nevada law, NRS 237.090, city governments are required to prepare a business impact statement before adopting an ordinance that may “impose a direct and significant economic burden upon a business.” But the Mesquite City Council has refused to even debate a clean indoor air ordinance, thus relinquishing its right and responsibility to prepare a business impact statement.

We believe the City Council’s action to solicit comments is an attempt to undermine the signature-gathering process and introduce misinformation into the public debate well in advance of the initiative being certified for the ballot. The process appears to only advance the positions of those opposed to the Clean Indoor Air Ordinance.

In the May 8th City Council meeting, several council members, in our view, made biased statements that pre-determine negative impacts on casinos while making no mention of the public health benefits of going smoke-free. The members’ references to potential losses are purely speculative and appear based on statements made by the casino industry.

As examples, Councilman Dave Ballweg said, “potentially the city could lose $2.5 million … the businesses project a drop of 30 to 50 percent in their revenues, at least initially.”

Councilman George Rapson stated “I do believe there will be a financial impact and it won’t be a good one … property tax revenues

to the city will be impacted. Wages and salaries will be impacted if the casinos lay off employees … every business from gas stations to grocery stores will be impacted.”

And Councilman Brian Wursten, referencing his work installing gaming machines at a non- smoking facility, said “I have firsthand experience with this issue. We could also lose residents who move out of the city because of this new law.”

Council members’ bias in deference to the casino industry versus public health benefits is clear. We believe it is incumbent upon our elected officials to act impartially on behalf of all Mesquite citizens and not taint the direct democracy process in this way.

Under the current process, you have established that businesses need only guess at impacts, which adds misunderstanding and misinformation into the public debate. While casinos, for example, may say they will suffer business losses, this is speculative and likely based upon information prepared by the casino industry, the tobacco lobby and other special interests. In contrast, a peer-reviewed U.S. Centers for Disease Control and Prevention study of bar and restaurant revenues after passage of clean indoor air laws in nine states shows no losses, or no changes in revenues after the laws went into effect. This is hard data versus the self-interested speculation of a handful of special interests.  Our government should use hard data- not opinions- and our elected leaders should not advance one point of view over another while utilizing our tax dollars.

To date, the only evidence-based study of financial effects of the Clean Indoor Air Ordinance in Mesquite is the one completed by University of Nevada, Las Vegas researchers, which projects $2.6 million in annual health care savings to city residents if Mesquite adopted a comprehensive smoke-free policy.  This is augmented by reductions of death and disease in our community.

The city’s one-sided approach to studying economic effects, meanwhile, is speculative and invalid and seems designed to influence the initiative process. We respectfully ask that you end this invalid process now and properly complete the requirements of Nevada law.

Further, your efforts also appear to run counter to the Nevada Ethics in Government statute, NRS  281A.520, which states “a public officer or employee shall not request or otherwise cause a governmental entity to incur an expense or make an expenditure to support or oppose a ballot question.”

We question the city’s use of funds and employee time to collect speculative economic impact statements from private business when, as we understand it, its study of fiscal effects should be limited to the city’s own costs for implementing and enforcing the ordinance. And, again, we remind you that the initiative is still in the signature-gathering phase. As we understand it, the limited fiscal impacts are to be studied after petitions are turned in and approved. The city is using funds and other taxpayer-funded resources now to study an issue not yet even approved for the ballot in what we believe is an improper manner.

By overstepping your role in collecting speculative economic impact statements from private business such as the casinos, rather than focusing solely on the cost to the city of implementing and enforcing an ordinance, this effort appears to be designed to taint the process now and to create a bias in advance of a potential November vote.

The citizens of Mesquite desire fair and accurate information on the proposed Mesquite Clean Indoor Air Ordinance at the right time and in the right way through a healthy public process. That time is after the proposed initiative is certified for the ballot in the manner described by Nevada law.  Again, we are asking that you end this process and start over with clear guidance on how to do this in a fair and impartial manner. We welcome a thorough and honest debate on the merits of the ordinance.  We also welcome a thorough discussion on how to comply with Nevada law and the rights of citizens to use direct democracy in a fair and honest manner.

Inappropriate action and bias by a public official: Mayor Litman’s “From

the Mayor” opinion pieces published May 9th and June 4th in the Mesquite Local News.

We believe it was wholly inappropriate for the mayor to use his official title and regular newspaper column to opine on the Clean Indoor Air Ordinance – not just once, but twice in the past several weeks. This is a matter for Mesquite citizens to decide, yet the mayor is taking advantage of his public forum and official title to undermine a citizens’ effort via speculation and misinformation in advance of the initiative being certified for the ballot.

In his May 9th column, Mayor Litman calls the UNLV study flawed based on his own misperceptions of how medical data in such studies are collected. He says the study is guesswork because federal medical privacy rules prevent researchers from collecting the information necessary to determine impacts on medical spending under a smoke-free law. The mayor’s statement is patently false. Researchers do have access to patient data necessary for such studies and the information collected in this study was from Nevada Emergency Department data and Nevada hospital inpatient data. Yet, he is provided a venue to spread such misinformation, under his capacity as a public official.

In the same column, Mayor Litman speculates about potential losses to casinos, without any basis in fact, stating that “you can be assured there will be losses.” And he states, falsely, that the initiative “is probably not legal.”

And in his June 4th piece, Mayor Litman doubles down on his public opposition to the ordinance, which he describes as “the work of zealots.” He states that the ordinance will bring “chaos in our city, not only economically, but also psychologically.”

Mayor Litman, again, spreads misinformation to citizens stating, “secondhand smoke … is not proven to cause health problems.” This is, of course, completely false. Numerous peer-reviewed studies demonstrate the health harms of secondhand smoke exposure. The U.S. Surgeon General has stated that there is no safe level of exposure to secondhand smoke, which – according to the U.S. Centers for Disease Control and Prevention – caused nearly 34,000 heart disease deaths and 7,300 lung cancer deaths each year between 2005 and 2009. Using his status to spread such misinformation is egregiously irresponsible and undermines the citizens’ initiative effort.

In the same column, the mayor again makes entirely speculative claims that the smoke-free ordinance will cause unemployment and “economic losses in the millions.” These claims are made in the absence of any supporting research or data.

Additionally, the mayor’s opinions were made ahead of the city’s own solicitation of comments from Mesquite businesses and citizens about the ordinance and its potential financial effects, pro or con.

The mayor’s columns, in which he uses his elected title and official standing, are blatant attempts to tell Mesquite citizens how to vote. Additionally, they use falsehoods, speculation and misinformation to put the citizens’ initiative effort in a bad light.

The mayor appears to place the financial well-being of local casinos ahead of Mesquite citizens’ public health. The Nevada Code of Ethical Standards for a Public Officer or Employee states that a public officer “shall not use governmental time, property, equipment or other facility to benefit his significant personal or pecuniary interest” and “shall not use his official position to benefit personal pecuniary interests or contracts.”

Also, according to NRS 281A: “Public officers and employees must avoid conflicts of interest between their private interests and public duties.”

A guidance document on NRS 281A provides this advice on “becoming an ethical board”:

• Recognize the value of input from others.
• Release biases to see other viewpoints.
• Respect varying voices.
• Resolve conflict by extending courtesy.
• Review information carefully.
• Reserve judgment until the facts are in.
• Reach decisions in the highest and best interests of the organization and citizens.
• Revisit policies regularly.

In our view, based on your recent actions, the mayor and city council are failing to do all the above.

To help rectify this issue, we ask you to desist from gathering speculative comments regarding impacts of an initiative which is not even yet approved for the ballot. Plans to share these comments at an upcoming council meeting should be removed from the agenda. And the city should revisit statute regarding municipal initiatives to ensure all steps and responsibilities are being followed appropriately.

Finally, we also urge you to communicate responsibly and in a non-biased fashion on this issue, which is for the voters to decide – the council having chosen to not even debate it.

We write this letter not to spur conflict, but to publicly address the bias shown so far by our elected officials.  There is still time to clear up these biases and have a constructive debate on the future health of our city.

Sincerely,

Mesquite Clean Indoor Air Initiative Petition Committee Members

Chris Picior, 917 Diamond Circle, Mesquite, NV 89027

Ann Darlene Tornes, 1075 Lake View Drive, Mesquite, NV 89027

Elizabeth Glavich, 552 Palos Verdes Circle, Mesquite, NV 89024

Marlys Harper, 1104 Mohave Drive, Mesquite, NV 89027

David M. Bangle, 1104 Mohave Drive, Mesquite, NV 89027

CC

Mesquite City Clerk Tracy Beck

Mesquite City Attorney Robert Sweetin

Clark County Registrar of Voters Joe P. Gloria Nevada Secretary of State Barbara K. Cegavske Members of Mesquite Media

Citizens of Mesquite