Nebraska Brand Committee votes 3-2 to keep advisory group meetings closed
for The Fence Post
THEDFORD, Neb. – Citing concerns over “proprietary information” and “dampened participation,” the Nebraska Brand Committee voted 3-2 during a special telephone meeting Tuesday, Nov. 16, to keep the proceedings of its producer-led Electronic Identification (EID) advisory group closed to the press and public.
LB 572, a bill introduced by ag committee chairman Steve Halloran of Hastings, and signed into law by Nebraska Gov. Pete Ricketts in May, contains provisions allowing the brand committee to adopt EID as a “nonvisual identifier” for proof of ownership purposes after undergoing a rule-making process. It also contains a provision for so-called “electronic inspection” program. The brand committee is required by LB 572 to deliver a report to the legislature’s ag committee on or before Dec. 1, 2021, regarding the status of implementing its e-inspection program.
On Tuesday, Nov. 2 the Nebraska Brand Committee staff hosted the first round of its EID advisory group meetings. Around 10 producers representing different segments of the cattle industry were invited to participate in the group and offer input on how a potential electronic inspection program ought to be implemented.
The Fence Post correspondent who tried to attend the Nov. 2 advisory group was informed that the meetings were closed to the press. However, the exclusion of the public has generated concerns about transparency, and a committee board member requested a special telephone meeting on Tuesday, Nov. 16, to bring the issue to a recorded vote.
After technical difficulties connecting to Tuesday’s conference call, committee board member Chris Gentry of Hyannis immediately brought the question before the board.
“I don’t know where we are at on this discussion.” Gentry said. “But I think we need to have any of these future meetings open, and I’d make the motion that from here on out we make these advisory meetings open to the public.”
Gentry’s motion was quickly seconded by committee board member and Cherry County rancher Tanya Storer.
VICE CHAIR OPPOSED
In discussion, board Vice Chairman Terry Cone of Burwell spoke first in opposition to opening the advisory group meetings.
“I’ve had some discussions that said, ‘Oh they’re doing secret things in there,’” Cone said. “This is just a working group that was put together. There was some of the participants in it who were bringing information — proprietary information — that they would discuss in that working group that didn’t want it to go out into the public.”
“There was nothing that could be hid in this meeting, there was only two brand committee members there, so there could be no action taken, there could be no motions, there could be nothing done,” Cone said. “And likewise, if there is something done, it has to be approved by the legislature by statute through a vote.”
Cone said the presence of the press or the public would limit the working group’s participants.
“People aren’t going to discuss their proprietary information they have when discussing using EIDs as a form of identification and using that to move cattle around and buy cattle and sell cattle,” Cone said. “When people want to discuss the proprietary information in the way they do it, they aren’t going to discuss that with the public setting there. It’s proprietary.
“I feel like if you go and open it to the public, you’re going to inhibit who is going to participate, and secondly, the committee can’t do anything without a vote, and you’ve only got two members of the brand committee there, it can’t be a vote. And it has to be approved by the legislature*.”
“And I think you kind of inhibit some of the participation by the public if you have every meeting opened up,” Cone said. “I had one guy say ‘you guys are just discussing secret stuff.’ What kind of secret stuff can you discuss? The EID program is a voluntary program anyway, and if you choose not to participate in it, you sure don’t have to.
“The brand committee felt like it is a method to improve the movement of cattle and to create some efficiency,” Cone said. “We’re not trying to hide anything, or do anything in secret. We’re trying to put it together. When there is something put together and we’ve got a program that we think will work, the public will know about it. Everybody’ll know about it. Well go to the press and invite everybody and then we’ll know, and things have to be approved by the legislature anyways.”
“There are no secrets these days, anyway, with all the communication we have, and the committee wasn’t inclined to do anything,” Cone said. “I don’t think we need to have everything open to the public. We’re going to have some of those producers who have a lot to contribute to it, but they’re not going to come and discuss their programs because they’re not going to want everyone to know about how they’re doing their business.”
GENTRY STOOD HIS GROUND
“I appreciate that opinion, and I appreciate that stance, and I understand it totally,” Gentry said. “But on the other hand, the committee unanimously had decided that this entire process would be 100 percent transparent.
“That’s where I come from and that’s where I continue to stand.”
Cone had a bad connection and asked Gentry to repeat what he said.
“I’m just basing my point of view that 100 percent of the committee had decided that this process — this entire process — would be 100 percent transparent,” Gentry said. “So I will stand on the transparency point of this topic.”
STORER ECHOED GENTRY’S STANCE
“I have only been to three meetings since my appointment, but the EID advisory group has been voted on (by the board) in March, discussed in June and September,” Storer said. “I’ve made it very clear. I believe this is probably one of the biggest responsibilities the brand committee has undertaken, and transparency is an absolute key to this process.”
“The spirit of the advisory group — at least from my point of view and discussions — the point was to take a deep dive and make recommendations to the brand committee for how the rules are developed for executing and carrying out the piece of legislation that became law in May, that we inspect… provide for inspection for proof of ownership for EIDs.”
“If there’s anything proprietary, I don’t know how that would be relevant to developing rules to EID inspection. I don’t see open meetings being an inhibitor,” she said. “You’re right Terry, there are no secrets, so there should be no closed meetings. This is about developing the rules to carry out the law, which is what the brand committee is tasked with doing.”
“So I will adamantly stand as well on keeping this process as open and transparent as possible,” Storer said.
CHAIRMAN WEIGHS IN
“This advisory group was put together to try and bring industry professionals in the state of Nebraska together in a working setting to where they could bounce off ideas and they could tell us what will work and what won’t work as far as setting up our process,” Committee Chairman Adam Sawyer of Basset said. “What we’re doing is really going to be a game changer, because there is very few organizations that are going to be doing what we’re trying to do, let alone try and do it through a state agency brand inspection.”
“We wanted to bring all those people to the table at the beginning to tell us what will work and what won’t work, instead of trying to bring them together at the end,” Sawyer said. “I do know of a few situations where there are a few people involved that some of the information they are sharing is pertinent to their business that they probably don’t want to make public.”
“The other part is that the whole premise behind initially not making these meetings open is that we didn’t want people to get construed — no different than some other different working groups we’ve had — there’s lots of ideas thrown out at the beginning that probably never even get brought forward as paths for the way to go,” Sawyer said. “We didn’t really want to do that until the end until we had a clear path of where we’re going.
“The process was gonna look like that the advisory group was going to kind of come to a consensus at the end of their four or five meetings and bring a recommendation to the brand committee about what to do — in an open meeting — in which it would get voted on by the meeting, and get reported as such to the legislature within the state of Nebraska.”
OPEN MEETINGS ACT QUESTION
Sawyer asked Mark Fahlson, outside legal counsel and special appointed attorney general for the Nebraska Brand Committee, to define why the EID advisory groups do not qualify as having to be subject to the open meetings act.
“It is my opinion, without sharing any privileged legal information, but the fact is as I understand it, (the advisory group) was originally set up to be not two members of the brand committee, but one, so at no point would you have a quorum present. In addition, they were simply gathering information, they weren’t taking any action and had no authority to take any action,” Fahlson said. “It is not unlike sending some staff members off to gather information and reporting back to the brand committee.”
“It’s technically not a public meeting, there’s no action taken and it’s a quorum of the brand committee is not present,” he said. “But again, the committee… it’s up to you if you wish to open up meetings and other meetings as public meetings — it’s a policy decision.
“But under the law, the meeting was not a public meeting.”
NEWEST BOARD MEMBER OFFERS HIS OPINION
The next board member to speak was Duane Gangwish of Lexington. Gangwish is an employee of Darr Feedlot in Cozad, and was appointed by Nebraska Gov. Pete Ricketts in August to fill the board’s cattle feeder seat left vacant after Jay Martindale’s term expired. An amendment made to LB 572 requires future brand committee appointees to be confirmed by the legislature, however, Gangwish was appointed by Ricketts before the law took effect.
“If we look back into the spirit of the law — and I’m not a lawmaker, I’ve never served in the legislature — but clearly at the time that the open meetings act was created, and as it was amended over the years, lawmakers saw the need for smaller groups to be able to work, gather information, discuss ideas, and bring those back to the parent body for consideration,” Gangwish said. “That’s not just in essence —– but in whole — that’s what this working group… subcommittee… whatever moniker you’d like to hang on it — is doing. We’re gathering information from stakeholders throughout the industry — salebarns, veterinary, cow/calf, feedlot, backgrounders — gathering their experiential knowledge — successes and failures — and in the end, will bring a recommendation to the committee may or may not take action, depending on the view of the committee at that time.
“And if action is taken, it will then proceed into rule-making, rules and regulations, where there will be further open meetings and further public input and discussion,” he said. “It’s my view that at this time, that these smaller information gathering discussion ideas… be in such as a platform that is… very open debate, I don’t see the need for them to be… I think it would dampen the input… dampen the ideas… if people… if the whole world is peeking in. That’s my view.”
BOARD MEMBERS DISAGREE ON TRANSPARENCY
Storer offered one more comment before calling the question to a vote.
“Apparently there has been a bit of lack of transparency within our committee,” Storer said. “This sort of ‘path forward’ and these viewpoints of how this advisory committee would operate prior to this have not been discussed as a committee. What has been discussed over and over has been the need for transparency.
“This concept of ‘proprietary information” and this path of how the advisory committee would operate is new to me, I’m hearing this really kind of for the first time today, “ Storer said. “What is not new is the discussion about the need for transparency, and the fact this is, again, one of if not one of the biggest lifts the brand committee has undertaken, and we’ve got to get it right.”
QUESTION CALLED TO A VOTE
With a motion and a second on the floor, Storer and Sawyer called the question.
Chris Gentry had moved to make future EID advisory committee meetings open to the public.
Roll Call: Adam Sawyer: No; Terry Cone: No; Chris Gentry: Yes; Duane Gangwish: No; Tanya Storer: Yes.
The motion failed.
While Sawyer attempted to open the telephone meeting to public comment, Fahlson advised that since the agenda did not list public comment that the board should move to adjourn. Storer made the motion, Cone seconded.
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