*1 Appel PAPA, General, DEL FRANKIE SUE lant, v. THE BOARD OF REGENTS OF THE UNI VERSITY COMMUNITY COLLEGE SYSTEM OF Respondent. NEVADA,
No. 28966
April
Lionel, Sawyer & Collins and Doty, Kevin D. Vegas, Las for Amicus Curiae.
OPINION Court, Maupin, By the J.: appeal
This is an from an order summary judgment in an to enforce Open Meeting action Nevada’s Appellant, Law. General, contends that the district judge erred in deter- as a matter of law that mining telephone polling does not consti- However, under tute a circumstances. We agree. we *3 affirm the grounds on other district judge’s decision to dismiss the action.
FACTS Nancy duly Price is a elected member of the Board of Regents (hereinafter Board”) “the for the University and Community (hereinafter System Nevada College of “the University”). On 5, 1992, prior several occasions to April Price made to comments the the press criticizing conduct of her fellow Regents. In these statements, the objected process by she to which the Board selected an external auditor and the processes by which the Nevada, University of the presidents of Vegas, Las and the Thereafter, Community Western Nevada College selected. at least seven Board individually members expressed their con- chairman, cerns about these comments to the Eardley. James Howard, On April Eardley met with Constance Interim Director of Public Information for the University. Eardley asked Howard to draft a response to Price’s comments. Howard then drafted a “media advisory.”
After reviewed the Eardley advisory, media it was dissemi- by nated facsimile all transmission to of the Board members except Price. The draft advisory stated:
The individual of the University members and Community System College of Nevada Board of Regents wish to express their concern and that recent opinion statements to the media unsubstantiated, by Regent Nancy Price are incorrect and potentially the damaging to Board and the University System the the respect members of Board While the a whole. it or her opinions, to his express member of one right beyond go Price’s comments Regent of that some their sense fact, are, accusations of unsubstantiated and opinion important the Board members The wrong doing. feel of in the interests against these statements publicly protest to policy-making and its the Board integrity the
protecting system. education higher Nevada's rote for added.) (Emphasis the draft accompanied written Howard A memorandum draft, advice as seeking and feedback on advisory requesting be pursued. action should course of whether the proposed to Eardley’s purpose two-fold further indicated memorandum Price’s earlier comments some of advisory: protest issuing the Finally, the media. from coverage balanced to seek more and would occur without Board that no release stated memorandum approval. advisory the draft recipients April On Howard, Eardley, either calls to by way telephone responded University calling cards. charged calls were both. These with use of responded disagreed who Regents Some of and, degrees, language varying their names decided not to issue Eardley April On advisory itself.1 advisory. Price these Regent regarding complaint receiving After calls, the General Attorney telephone transmissions facsimile General’s Four counts the instant lawsuit. filed violating with Regents charged complaint “fax” privately by the draft whether to release deciding Law The other two meeting. rather than had conducted a closed that the alleged counts character, professional com- misconduct alleged consider meeting. her notice of giving without of Price petence violations of several sections to establish sought *4 prohibiting relief sought injunctive also 241. She chapter NRS violations, judgment and a those repeating The district court poll. non-public the result voiding favor on these issues. in the Board’s summary judgment granted
DISCUSSION 1993, 241.020(1) meetings that “all provided NRS be permit- all must persons and open public, be bodies must transmission, five Regents who received facsimile 1Of the ten advisory, wanted it responded releasing the one released under in favor of advisory, opposed releasing the two had Eardley’s only, no name one was respond. opinion, and one did not 392 241.020(1) any meeting
ted to attend of these bodies.” NRS “ (amended 1995).2The term ‘[m]eeting’ means the gathering of which public body members at a quorum present is deliberate toward a decision or to make a decision on any matter control, which public body supervision, over has jurisdiction power.”3 241.015(2) Furthermore, (1995).4 advisory NRS “electronic communication . . . not must be used to circumvent letter spirit or chapter order to [NRS discuss or act 241] a matter which upon over body has supervision, control, jurisdiction advisory 241.030(4). powers.” NRS The Attorney General argues that the district court erred in a matter determining as of law that these individual telephone calls and faxes between Regents and/or their employees did not constitute a “meeting” as defined NRS chapter 241. Statutory
1.
Construction
“The construction of a statute is a question of law.” General
Jackson,
1026, 1029,
345,
111
Motors v.
Nev.
900 P.2d
(1995). “Courts must construe statutes ...
give
meaning to all
parts
of their
and language.
. . . The court should read each
sentence,
phrase,
word to render it meaningful within the
context of the
purpose
legislation.” Board of County
Nevada,
739, 744,
102,
Comm’rs v. CMC of
99 Nev.
670 P.2d
(1983) (citations omitted).
“A statute should always be
Motors,
construed to avoid absurd results.” General
393 taken meeting that a could not have place The Board argues “present” not of the members was make quorum because a “in the term means view” or “present” It claims that decision. (1975). Dictionary The Collegiate Webster’sNew 910 “at hand.” “in neither view” nor “at further that was hand” argues Board “at hand” are defined “near time or the words as because (1980). Dictionary Collegiate New 514 How- place.” Webster’s reach, ever, is defined as “within sight the term also “present” Dictionary, Third New International Webster’s 1783 call.” added). (1968) (emphasis General, in a interpreted the term opinion, as follows:
“present” that public body agree the members of a action ... [WJhere by body through predeter- will be taken that the use of public body mined mail the members of the poll procedure, “present” be treated law as to conduct busi- should This warranted in especially ness. conclusion circum- presently such are considered where members stances as mind, in advance be if ready have consented not deliberate and decide business in physically, pri- scrutiny mandated statutorily vate without the circumstances, . . Under these a mail meeting. balloting . statutory would constitute within public body 241.015(1). of NRS purview (1985). Att’y Gen. Op. 85-19 Thus, be logically interpreted the term can differ- “present” understood in capable being ent “Where a statute two ways. reasonably persons, informed the statute is or more senses at at 442. McKay, Nev. P.2d Once ambiguous.” plain meaning rule has no ambiguous, is deemed statute leading rule of construction is to statutory application “[t]he legislature enacting the statute. . . . ascertain intent of literal intent will over the sense of words. . . . prevail This subject may matter and be involved an policy The entire 650-51, at 442-43. aid.” Id. at 730 P.2d interpretive Intent Legislative 2. legislation is set forth at NRS of this 241.010 purpose “[ijn legislature enacting chapter,
which provides exist aid in the that all bodies conduct and declares finds It is the intent of the law that their actions business. of people’s their be conducted deliberations openly be taken openly.” spirit court has held that and policy This behind NRS “[t]he 651,730
chapter open meetings.” McKay, 241 favors 102 Nev. at P.2d intent at 443. of the law that the actions and “[T]he [is] *6 deliberations of be taken openly." bodies Id. An legislative history examination of is also useful to deter- 597, James, mine legislative intent. United States v. 478 U.S. 606 Comm’r, 490, (1986); McKay Cty. see also v. Board of 103 Nev. 124, n.2, (failure (1987) 125 P.2d n.2 adopt a
proposed legislative amendment is evidence intent to con- the trary). chapter NRS 241 was in 1960 adopted and revised dramatically 1977, legislature adopted
in the 1977. the current definition of 241.015(2). the term “meeting.” See NRS In doing so. consid- bills, ered two A.B. and S.B. 333. The legislature specifi- cally considered the issue raised in this in case 1981 and again has, Additionally, Attorney 1995. General either by opinion 1980, 1983, instruction, (see or considered this issue 85- (1985), Att’y 19 Op. supra, Gen. 90 (prohibiting mail polling), 1988, and 1991. (1977) and
a. A.B. 437 S.B. 333 437, The first draft of A.B. submitted on March to define a proposed “meeting” as gathering of members of a public body at which quorum present deliberate toward a decision or to make a decision on matter which the body over has supervision, control, jurisdiction advisory or power. 437, 16, (Nev. 1977). 59th On Leg. A.B. March Deputy General Isaeff Bill testified before the Assembly Gov- ernmental Affairs opined Committee. He that the definition of should include conference calls or communi- cation electronic means. Hearing See on A.B. 437 Before Committee, (Nev. Assembly Governmental Affairs 59th Leg. 1977). Other also witnesses recommended that the committee include electronic means of communication in the definition of a Id. “meeting.” reprint
The 333 proposed first of S.B. to define a “meeting” as gathering “the of a quorum constituent membership means, public body, whether in one place electronic act a matter over which the upon discuss or has body supervision, control, jurisdiction advisory power.” S.B. Leg. 59th (Nev. added). 1977) (emphasis legislature ultimately adopted 241.030(4), current version of prohibiting only the use spirit” chap- to “circumvent communication of electronic ter 241. that enactment agreed, the district court argues, The Board of S.B. rejection A.B.
of the first version of that elec- testimony specifically proposing rejection apparent when used “meetings” be considered communications tronic intent legislature’s decisions demonstrates to make quorum utilized the electronic communications prohibit not to case. enacted argues legislature
241.030(4) hearings raised at the on concerns response that even if the communi- She contends measures. proposed these under NRS “meeting” did not constitute in this case cations 241.015(1), that the Board’s requirement circumvented they violated the spirit made in decisions be 241.030(4). Law. NRS Law Manual Open Meeting b. 1980 *7 a Nevada publishes the General Every years few of and answers consisting questions Law manual Open Meeting “May In 18 stated: a question NRS 241. chapter regarding through telephone the use of a body ‘meeting’ convene a public given The answer was as follows: conference call?” Law to the Meeting appears prohibit Nothing Open business body discussing public a public members of quorum in which a conference call telephone via a telephoni- linked to one another simultaneously members are However, “meeting,” public this is a the . . . cally. since in the to listen on discussions opportunity must have an conference call Although telephone . . . taking place. votes business, conducting public’s method of may be a lawful subterfuge compliance to with never be used as it should intent that the Law and its stated actions Meeting the Open their openly be taken delibera- bodies are to openly. tions conducted (3d 1980). Law Manual 15 ed. Open Meeting Bryan, H.
Richard asked, (vote) body make a decision Question “May public gave poll?” telephone a mail or answer: following intent found at declaration of legislative view of the actions of bodies to the effect that all 241.010 of a decision a mail making openly,
are to be taken appears attendance incon- subject which is not poll The same and intent of the law. spirit with both the sistent poll, true for a it is unless conducted as a tele- conference call accordance with the phone requirements Question supra. noted and Answer No. Id. (1981)
c. A.B. 641 legislature’s In addition to the consideration electronic com- Board Regents requested munication that the consider legislature during legislative A.B. session. proposed That bill allow “make investment between its scheduled regularly meeting by decisions means of a 641,63rd (Nev. 1981). by telephone.” vote A.B. Leg. conducted attorneys One of the Board’s testified before Gov- Assembly ernmental Affairs Committee on 1981. He May stated that the main concern was that “the provision Board’s meet- open . simply law . . these ing prohibits types votes taken being regularly between meetings scheduled attorney general’s clearly says you manual don’t have telephone Hearing votes.” on Committee, Assembly Before the A.B. 641 Governmental Affairs (Nev. Thus, 1981). 63rd Board Leg. appears the was conceding at that that telephonic voting time was violative of attorney Law. Although the Board’s assured the commit- tee that the Board never would use the measure as a license to telephone, over the policy make the committee ultimately voted Thus, indefinitely postpone activity further A.B. on 641. proposal never Regents’ became law. “ held the legislature
This court has ... has had ‘[w]here time to amend an administrative ample agency’s inter- reasonable so, statute, pretation but fails to do such acquiescence ” the interpretation is consistent with legislative indicates intent.’ *8 298, Nevada, 295, Properties v. State 100 Nev. Hughes 680 970, (1984) 972 (quoting Corp. P.2d Summa v. State Gaming 392, 1363, Bd., 390, (1982)); Control 98 Nev. 649 P.2d 1365 see Nevada, 221, v. also Roberts State of 104 Nev. 752 P.2d (1988). The legislature years has had sixteen override interpretation 241.015(1) Attorney General’s of NRS do, 241.030(4) via amendment. This it has failed to notwith- We standing specific opportunity 1981. therefore conclude rejection that the of A.B. is evidence of the legislature’s Attorney intent to General’s preserve interpretation of the law decision, make a voting telephone whether that not, is to act or violates the Open Meeting decision Law. 1983, 1988, Open Meeting
d. and 1991 Law Manuals Attorney In 1988 and in published General, each, law manuals. In open meeting using and answers found in the 1980 questions Open Meeting Law Manual, that it the opinion stated was of that a body may attendance, not, opportunity without the for make a deci- (vote) by Brian telephone poll. McKay, Open Meeting sion Law (4th 1983); McKay, Manual 18 ed. Brian Open Meeting Law (5th 1988); Manual 23-24 ed. Frankie Sue Del Papa, Open (6th 1991). Law Manual 25 Meeting ed. (1995)
e. A.B. 602 session, In the legislative Nevada’s Open Meeting Law (Nev. once before the again legislature. was A.B. 68th Leg. 1995). 241.030(4) A.B. 602 that NRS proposed read as follows: communication or polling, must not be used to
[Electronic the spirit circumvent or letter of this chapter order to upon any discuss or act matter. Although spoke
Id. several witnesses before the committee expressing their concerns about polling impact its on the open meeting requirement, the 1995 did legislature not pass A.B. 602. has legislature rejected language electronic defining com- Further, “meeting.”
munications as a it has refused to specifi- cally prohibit telephonic polling for the purpose of enacting policy or measures within the of the scope public business. This notwithstanding, legislature consistently has maintained that electronic communications shall not be used to circumvent the or letter of 241 in spirit chapter order to discuss or act upon a control, matter over which the public body supervision, has jurisdiction advisory powers. or It has also refused to amend the position General’s that telephone polling circumvents Thus, and letter of the we spirit law. believe that the legisla- ture intended to bodies from prohibit public making decisions via electronic serial communications. Authority
2. Case Commissioners, Stephan County In State ex rel. v. 866 P.2d (Kan. 1994), the Supreme Kansas Court held that county between a quorum calls commissioners for the purpose discussing county business did not constitute “meetings” meaning within the Kansas case, Supreme Act.5 Kansas Court held that the calls decided, Stephan 5When analogous Kansas did not have a statute 241.030(4), “meeting” but defined the term as follows: act, “meeting” any prearranged As used in this gathering means assembly by majority quorum membership body of a *9 because, a in meeting did not constitute legisla- Kansas ture senate bill: rejected following
No chance social or meeting, electronic or writ- ten communication shall be used circumvention of the spirit requirements of this or act. then,
Id. at That court that “[cjlearly, 1026. stated these four alternative opportunities for communication were not contem- within the plated to be term ‘meeting’ K.S.A. 75-4317.” Id. at 1027.
In concluding that the Board’s
actions
this
did
matter
not
constitute a
“meeting,”
district court
heavily
relied
on
Stephan.
Attorney General
argues
Stephan is distin-
decided,
guishable because at the time that
was
case
Kansas did
241.030(4),
not have legislation analogous to NRS
prohibiting
of the “spirit”
circumvention
of the
Law
Meeting
via
case,
electronic
We agree.
communication.
In this
legislature
our
has enacted language almost identical to that rejected
Thus, we
legislature.6
Kansas
Stephan
believe that
inferentially
supports
position
General’s
this matter.
Newspapers
issue in Stockton
v. Members of Redevelop-
(Ct.
1985),
Rptr.
ment
Cal.
Agency,
App.
conversations,
“whether a series of nonpublic telephone
each
between
of the
a
governing body
a member
of
local
agency
its
agreed
of
attorney,
commonly
purpose
for
a collec-
obtaining
promise by
tive commitment or
a
of that
majority
body concern-
business,
ing public
constitutes a
within the
‘meeting’
purview of
summary
the act.” In
of
reversing
grant
judgment for the
authority, the
court
redevelopment
California
stated:
argue
alleged
Defendants
that because the
telephone con-
opposed
serially
versations
conducted
as
to simultane-
ously
“speaker
case of
call
phone” conference
members,
majority of the
the case
among a
falls within the
statutory exception
open meeting requirement
where
less-than-a-quorum
body
is at
one
governing
any
time
. . .
of nonpublic
involved.
series
contacts at which a
[AJ
agency subject to this
purpose
act for the
discussing
the business or
body
affairs
agency.
or
75-4317(a).
K.S.A.
Stephan,
response
Legislature
6In
the Kansas
enacted K.S.A. 75-
4317(a) (1995) which states:
act,
(A)
“meeting"
any
used in
defined.
As
means
assembly,
gathering,
any other
call or
means of interactive
by majority
quorum
membership
body
communication
of a
of a
subject
agency
purpose
discussing
or
for the
to this act
the business
body
agency.
affairs
at
time is
body
lacking
given
quorum
legislative
*10
“planned by
Act if the contacts are
by the Brown
proscribed
a quorum
held with the collective concurrence of
of the
or
business” either
public’s
to
discuss
body
privately
indirectly through
agency
of a nonmember.
directly (Cal. 1982))
Att’y
Gen.
(quoting
Op.
Id. at 565
added).7
“if
Newspapers
The Stockton
court felt that
(emphasis
a legislative body
contact of the members of
face-to-face
of the
‘meeting,’
objective
open meeting
for a
necessary
easily
Act could all too
be evaded.” Id.
requirement of
Brown
Palmdale,
(Cal. 1993),
City
In Roberts v.
The Board
California cases are
direct
Commissioners,
McKay
County
with
v. Board of
conflict
(1987) (hereinafter “Commissioners”),
Nev.
Id. at
policy, Thus, body. a public capacity in its official acted the Board on the position take a chose to the Board quorum as a insofar vote, the Open it violated non-public via a nay, advisory, yea 241.015, 241.010, NRS it violated Specifically, Law.8 Meeting written 241.020, requiring meetings closed prohibiting 241.030(4), the use prohibiting NRS meetings; notice letter of spirit to circumvent communications electronic 241.035, Law; requiring Meeting the Open meetings.9 minutes of its written keep body to asked the district court to establish that provisions the above cited Regents violated Law, injunction prohibiting and for an She also asked that the district court those violations. repeating poll pursuant to NRS 241.036.10 non-public void the result of Because the Board decided not to take with respect action *12 release, our decision on the to issue the 8Although the Board chose not "capable because the issue resolved is of appeal is not moot merits of this Court, See, e.g., Binegar 112 Nev. evading v. District yet review.” repetition 889, (1996). 544, 548, 892 915 P.2d find a violation of asked the district court to General also 9The 241.031, holding meeting public body from a closed prohibiting a misconduct, character, competence, professional or alleged consider the body; public and a member of a health of an elected physical or mental 241.033, body holding any from prohibiting a violation of NRS without written notice to the elected above items consider the member under consideration. character, alleged miscon- consider Price’s Board did not We hold that the duct, physical mental health in this case. competence, or professional Therefore, it 241.031 or 241.033 when violate NRS did not the Board advisory. to release the decided not any public body in taken provides that action of “[t]he 241.036 10NRS chapter void.” any provision this is violation of of 402 release, Thus, inapplicable.
to the NRS 241.036 is press only remedy for Attorney General’s this court to order the enjoin district the Board from engaging court future conduct the Open Meeting that would violate Law. Doran, In Instruction of Broward County Board Public v. (Fla. 1969),
224
2d
cited with
approval
So.
693
City Council
886, 890,
105
Newspapers,
Reno v. Reno
Nev.
784 P.2d
(1989),
stated:
court
well
may
While it is
established that courts
not issue a
blanket order enjoining
upon
violation of a statute
a
showing that the statute has been violated in some particular
(see
City
Moore
respects
Dry
v.
Cleaners &
Laundry,
So.
(Fla. 1949)),
.
they
2d 865
.
.
do possess authority to
already
restrain violations similar to those
committed. See
Interstate Commerce Commission v. Keeshin Motor
(C.C.A.
1943).
In
court
Newspapers,
Reno
examined the propriety of a
permanently
district court’s order
enjoining
city council from
“conducting any
meetings
closed
in the future
for
purpose of
it
selecting
city
officer” after
selected a
manager
Doran,
meeting. Relying
closed
on
this court stated:
The district court had a clear
City
indication
had
Nevada’s Open Meeting
Reno
violated
Law. Coupled
with
stipulation
judgment
Council’s
that would
it
enjoin
violating
Open Meeting
Law in the future
officers,
selection of
this provided sufficient specific-
ity and
for
entering
permanent injunction.
basis
at
Newspapers,
Reno
Nev.
disturbed on
view,
dissent,
impliedly
12The
in our
criticizes the initiation and mainte
First,
proceedings.
obligation
nance of the instant
it is the
of the
course,
This,
Open Meeting
General to enforce the Nevada
Law.
was the
Secondly,
advisory
thrust of this suit.
the Board’s action on the draft media
not,
dissent,
argued
“merely” part
personal
as
of an effort
was
to defend
rather,
stated,
reputations;
attempt,
advisory
dealt with an
action
as the
to
protect
integrity
policy-making
“the
of the Board and its
role for Nevada’s
higher
system.”
education
The dissent wonders at our reliance on the Board’s utilization of Univer-
sity
advisory.
only
in connection with the draft
resources
This is mentioned
felt, obviously
to underscore the fact that the Board members involved
faith,
involved,
good
University policy
that a determination of
was
to wit:
response
public
whether a formal “Board”
to Ms. Price’s
comments was
necessary.
public
The members of the Board of
affected Ms. Price’s
thereto,
every right
respond
group.
statements had
as individuals or as a
It
only
they attempted
respond
capacity
when
in an official
that the
reason,
implicated.
Law was
The members of the Board have no
suggests,
personal
take this decision
the dissent
as a
affront to their
They
dedication as
servants.
know that matters such as these come
with
office.
ascension to
legitimate
The rhetorical excesses of the dissent obscure the
debate over
open meeting legislation
whether a violation of the
has occurred. The
making processes
allegations
corrupted by
that the decision
in this
case
sitting supreme
justice
repay past political
the desires of a
court
debts are
First,
ways.
allegations
patently
flawed in a number of
are
unfair to the
Second,
majority.
any
justices participating
may
other
issues that
have
possible disqualification
previously
have been
existed relative to
resolved.
Third, although
participation
the issues raised
the dissent relative to the
domain,
clearly
party
members of this court are
now the
no
to this
suggested
disqualification
action has
issues exist.
lay
the former
It is our intent to now
to rest
controversies that have
Thus,
plagued
years.
relegate
response
this court over recent
we
our
to the
to this footnote.
dissent
Justice, voluntarily
Young,
recused himself
13The Honorable
Cliff
participation
appeal.
in the decision of this
*14
Young’s
Bar,
my
and
dissent O’Brien v. State
Justice
(1998),
Nev.
Board guilty violating complaint General’s an sought law. open meeting repeating the violations “prohibiting Regents injunction of the law.” the Attorney The trial court dismissed General’s properly law, did not violate the ruling Regents
charges, “ they ‘meeting’ did not conduct a as defined charged, because The trial court further NRS 241.015 Law].” [the various among Regents ruled that communications “involved opinion, personal conflict personal regarding expression not, Regents” objectionably, various and did relate to between which the Board of had jurisdic- matters over The trial dismissal of the General’s com- tion. court’s quickly sound and should have been legally plaint *15 by this unhesitatingly affirmed court. have, court, affirm the trial as it should court Rather than this and Attorney with the cancels out trial court’s sides the defendant clearly-correct rulings, wrongly holding Law,” when, in fact and Regents law, “violated that even Regents nothing being did comes close to this court ruled that there are violation of the law. Not since judicial we that has days year experienced law-making have In political an of blatant influence.1 this dissent- appearance such why I will the trial court’s discuss dismissal of the ing opinion Regents should not have Attorney charges against General’s will an suggest explanation why with and as to tampered been that it way have been decided was. might case The charges against General’s the Regents arose entirely by out of a memorandum sent out Regent Eardley to his refer, course, Lau, 1I to the case of SNEA v. 110 Nev. 877 P.2d court, (1994), by in which majority vote of a which includes Young Rose, 370-day year. and created Justices Absent this court's 370-day “political year." present establishment of a governor would not have been allowed to run for a third term. To overcome the constitutional term, impediment governor’s running to a for a third this court found it necessary days to rule that in Nevada there were "political year." in a "political year” ordinary court-created different from "the and well- day[s]" meaning understood floating day and from and "run[s] to a "political" year within a month." Id. at 877 P.2d A (by at 533. days. adding “floating” days), may five have 370 unconnected, today personal, order for the court rule two-person telephone calls Regents constituted an "official" of the Board of "as public body," leap comparable it had to make a to its Innovative creation of floating days political years. might argued flouting It be that we have here quorums (quorums comprised five by unconnected calls individ- chairman) Regents political meetings (floating ual to the quorums that do note, however, General). approval with not meet I that the term, employ quorums floating political court does not either meetings, up present opinion. shore (other Price). Regents fellow than Regent Regent Eardley sent out the memorandum in question; “guilty” other Regents did nothing say more than receive it and then “no” to the proposals forth in the put memorandum. purpose Eardley stated memorandum was to enlist
“individual members” of the respond Board to to public state- being by ments made Price and Regent to express “their concern opinion” about that Regent Eardley remarks saw as being slanderous, “unsubstantiated, incorrect and potentially damag- memorandum, ing.” With his Regent Eardley sent out a proposed “draft media advisory” which stated his vision of a response that should be made by individual Regents to what was perceived being slanderous public statements being made Regent Price.
Regent Eardley suggested to his colleagues that “some (to response slanders) is needed” the Price and sought each Regent’s “support and endorsement” of his proposed draft media advisory. Regent Eardley made it very clear that he only making suggestions “draft” form and told each Regent that if action, she or he were “not comfortable with this course of convenience,” let please your me know at earliest emphasizing that his “draft” would “not be released” under the name of Regent until individual “approval given.” has been As matters out, turned not Regent approved one of the draft in the form proposed Regent Eardley.
It is possible conjure not an official meeting of the Univer- sity of Nevada Board of out of the described series of individual and negative isolated responses to Regent Eardley’s court, proposed advisory. media As pointed out the trial there *16 calls, were “no conference no physical meetings, the [arid] Regents never reached a consensus about the proposed media most, advisory. Ultimately no action was taken.” At said the trial court, the Regents who received Regent Eardley’s memorandum merely were their “exercising First Amendment to right publicly deny Regent Price’s allegations.” I that it suppose might possible, be in a situation entirely here, different from the one we have for members of a public board to subvert the open meeting law by secretly polling the and, membership thereby, secretly vote on an official decision to board; by be made the but there is like nothing this even remotely Here, involved here. the “guilty” Regents did nothing more than ignore Eardley memorandum or decline to act in their individ- ual capacities sought by the manner Regent Eardley’s draft It be proposal. should clear to all that the defendant Regents did participate any way not in an official meeting of the Board and that, therefore, (as Regents none of the declared in the majority
opinion) law.” open meeting For those who do “violate[d] my I have readily grasp point, upon not elaborated it in the margin.2 which, There is a troubling aspect of this case although not by Regents, raised should pass not unnoticed. Justice Rose “swing vote” in this case. Justice Rose has recently authored a dissenting opinion which he expressed his concern 2To be liable for violations of the Regents Law. here only participated must not "meeting." meeting have in a must have been meeting, say meeting an that is to quorum in which "a present to official any deliberate toward a decision or to take action on matter over which the advisory control, public body supervision, jurisdiction has power." 241.015(2) (my emphasis). Although quite it is clear that the various mem kind, bers of the Board did not meeting any conduct or attend a it is beyond dispute they did not meet in order to "deliberate" any or decide control, "supervision, matter over which the Board had jurisdiction or advisory power." by No official decision or action the Board was ever draft, suggested Eardley mentioned or in the and the Regents individual who certainly received the draft ignore free to disagree memorandum or suspecting with it without that she or he subject would become prosecution to course, court, Attorney General. The trial understood this rather aspect summarily basic of the case when it Attorney dismissed the General's complaint. today’s ruling clearly The mischief of can be if apply seen we were to ruling (namely, negative, that a response individual to another board mem- proposal respond ber’s to to slanders another board member can constitute board) illegal, meeting an official of that to one of the boards that thus, have three members. Two quorum; members of these boards make a today’s under ruling virtually any communication between two members of such a meeting required board would result in a notice and the open meeting other formalities of the example, law. For if one member of a three-member board were to say. you another member and "Do help want to me answer the slanderous statements that our fellow board us?,” making against member is say the contacted member could "yes" not becoming subject prosecution by or "no” without General. (As put majority opinion, quorum when "a of the Board [two] chose to vote," position yea nay, non-public take a . . . via a those two members violators.) become law I close assumption seriously this note in the that no one takes Regents’ General's University contention that the various use of fax and telephone equipment turns these isolated communications into an official Regents. of the Board of give Those Board members who declined to staff, approval Eardley University to the draft were entitled to usé faxes and address, telephones individually, problem only that related not wrongdoing" against "unsubstantiated accusations of individual members of also, necessarily, integrity the Board but related to "the of the Board and its policy making higher system." role for Nevada's education Under the case, every right circumstances of this the chairman had to "utilize Univer- however, otherwise, sity even if we were think resources": mere use of University resources members of the Board of does not a *17 and, make, quite frankly, argument signifi- that it does is of no cance. in in about “tainted votes” cases which decision-makers have State, interest. In O’Brien v. conflicts of Nev. P.2d decision-makers, (1998), Justice Rose condemned two claimed, who, he had “serious conflicts of interest when they party].” voted for successful Id. at 952 P.2d at [the 957. went in say Rose on to the O'Brien case Justice that “[without votes, tainted the result would have been in losing [these] [the word, party’s] favor.” Id.. Justice at Taking Rose his I would that the suggest justice may have serious conflict of interest in that, arguably, case and without present his “tainted” vote it likely that the Regents would not have been declared to be law breakers. Justice Rose in the complained O’Brien case that one of the had, decision-makers in the past, accepted a campaign contribu $10,000.003 parties
tion of from one of the to the dispute. expresses Justices Rose his belief that the contribution was so as to create “an “disproportionate” appearance of impropriety” unfair” “fundamentally to the parties. Id. at J., J., (Rose, Young, P.2d 957 dissenting). justice (the that the by claims result reached the decision-maker Board of Governors) Bar should be invalidated and a new vote taken in which “Board members with conflicts of interest not [such] in it.” participate “fairness,” “impropriety” and “obvious Rose doctrine dissent, interest,” adopts which he the O'Brien can
conflict of way: be summarized very large greatly dispropor- When a “contribution is
1. ., . . then an appearance impropriety tionate should be recognized.” It an “obvious” and “serious conflict of interest”
2. for of such a contribution to cast a “tainted vote” for
recipient he or received the person from whom she contribution. “fundamental 3. Such conflict of interest creates unfairness” decision-making process require so as to invalidation and a new vote in which of the “tainted votes” those “with of interest not participate.” conflicts O’Brien, that a be judge Justice Rose fair and “insistfs] moment, 3Although it is of no real I would note concurring that the is, fact, opinion question makes clear that the "contribution" no more $10,000.00. true, may than It be as justice, claimed the concurring the donor's husband made a contribution and that a man named Waters made contributions; $10,000.00 but the fact remains that Ms. FitzSimmons’ con campaign tribution in a appear state-wide “disproportionate” does not to be Rose, especially claimed Justice when it is contrasted to what some may see as a "contribution” to Justice Rose made General. *18 in a where so participate doing not case would impartial the of thus a conflict present appearance impropriety of case, In I want to present merely the hold Justice interest.” Rose apparent The conflict of interest in this to his own standard. case way in the that much Rose claims it arose in arises Justice O’Brien, namely, receipt the by career-saving “contribu- General, the is an Attorney party tion” from who interested in the I how it denied case. do not see can be that present Justice Rose General, indebted much greatly Attorney is to the more indebted if, say, Attorney be the the than would case General had contrib- $10,000.00 political uted I will it campaign. his leave to the the reader to decide whether facts a following give rise to “dis- Attorney contribution” the General proportionate to Justice Rose. charges, charging formal criminal two “crimes public justice” against sworn out against Justice Rose Vegas Detective David F. Kallas of the Metropolitan Las Police affidavit that “a Warrant Department. charging requested of Rose, suspect, Arrest/Summons be issued for Robert E. on investigation, of criminal charges obstruction of violation of NRS of 199.520 violation NRS 199.540.” Attorney General writing to the in that responded charges formal declaring in jurisdiction 228.175 “establishes criminal the of office Attorney General in the over offenses committed course and employment a state official’s out circum- scope arising of of employment.” related Although Attorney stances to that Gen- expressed eral doubt as to whether Justice some Rose was capacity actually “acting his as a state official” at the time of nonetheless, conduct, General, Attorney alleged criminal decided to the entire case file.” The Attorney General “review[] prosecute; decided not warrant requested of arrest/ issued, summons was never and the ended at that prosecution decision, a Del Attorney Papa’s As result of point. prosecuted.4 Rose was never Justice suggest Attorney prosecute 4 I not General’s decision not to do faith, against charges suggest was made in nor bad do I Justice Rose that, guilty say All I given Rose criminal conduct. do of Justice decision, Attorney may present appearance General's the outcome an impropriety Attorney for Rose to remain in a case in which Justice party. objections sitting General is have no to Justice Rose’s cases in State, Attorney as example, which the General is counsel for the she for was. Hogan concurring opinion. to in case referred have I Justice Rose’s not, Rose, suggested by Hogan My ''forgotten” the as case. dissent Justice text, is, present case as I have made clear in the based on the party distinguished being appeal an in this General’s interested her attorneys merely being party, Hogan. as she was in one of the for a subject being political condemned as a Today’s ruling is involving disqualifying “appearance decision pay-back Justice Rose to remain this case. Whatever impropriety” for in favor ruling be behind the court’s might eleven ten of members of Board of against General and ruling subject criticism based on at least an Regents, such as defined “impropriety” Rose himself appearance Justice in O’Brien. only concern to me that not has the court deep It is a matter of have the open that ten officials “violated declared law,” that threatens to terrorize public it has set a board precedent *19 way in a that will chill legitimate private members future among members of boards. communications suggestion that if Justice respectful I would offer Rose case, disqualify upon refuses to himself from falls him attempt, rehearing, get on out of this case. merely protect not their own names and They should do so violators, they declaration that are law void this court’s but to indignities other board members from kinds of protect It injustice they certainly arguable have suffered. that a totally probably judgment tribunal would affirm the impartial and dismiss the General’s complaint. trial court PHELAN, CAMPBELL, ROBERT LOUIS JAMES ALLEN NICHOLSON, KEITH Petitioners, BRIAN v. DISTRICT COURT OF THE JUDICIAL THE EIGHTH County NEVADA, OF STATE for GATES, LEE HONORABLE A. and THE Clark, Dis- and THE STATE OF Respondents, Judge, trict Party NEVADA, Interest. Real No. CAMPBELL, ROBERT LOUIS PHELAN ALLEN
JAMES NICHOLSON, v. THE Appellants, KEITH and BRIAN Respondent. NEVADA, OF STATE
No. 31560