Dewey v. Redevelopment Agency of Reno

• Decision Date: 14 March 2003
• Docket Number: No. 35339.,35339.
• Parties: Jon Severen DEWEY, an Individual; Rosemary B. Digrazia, an Individual; Antoinette Mollett Harsh, an Individual; Nanna R. Rassu, an Individual; the National Trust for Historic Preservation, a Private Non-Profit Organization; and the Truckee Meadows Heritage Trust, a Non-Profit Corporation, Appellants/Cross-Respondents, v. The REDEVELOPMENT AGENCY OF the CITY OF RENO, Nevada, Respondent/Cross-Appellant.
• Court: Nevada Supreme Court

64 P.3d 1070

119 Nev. 87

119 Nev. Adv. Op. 9

Jon Severen DEWEY, an Individual; Rosemary B. Digrazia, an Individual; Antoinette Mollett Harsh, an Individual; Nanna R. Rassu, an Individual; the National Trust for Historic Preservation, a Private Non-Profit Organization; and the Truckee Meadows Heritage Trust, a Non-Profit Corporation, Appellants/Cross-Respondents, v. The REDEVELOPMENT AGENCY OF the CITY OF RENO, Nevada, Respondent/Cross-Appellant.

No. 35339.

Supreme Court of Nevada.

March 14, 2003.

Jeffrey A. Dickerson, Reno, for Appellants/Cross-Respondents National Trust for Historic Preservation and Truckee Meadows Heritage Trust.

K. Sue Trimmer, Reno, for Appellants/Cross-Respondents Dewey, DiGrazia, Harsh and Rassu.

Patricia A. Lynch, City Attorney, and Michael K. Halley and Michael L. Melner, Deputy City Attorneys, Reno; Goldfarb & Lipman and David M. Robinson, Lee C. Rosenthal, and Yoomie L. Ahn, Oakland, California, for Respondent/Cross-Appellant.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM:

This appeal and cross-appeal asks whether private, back-to-back staff briefings attended by less than a quorum of a public body violates Nevada's Open Meeting Law. We conclude that, absent substantial evidence of serial communications to support a finding of action or deliberation towards a decision, private back-to-back briefings of less than a quorum of a public body do not violate the Open Meeting Law. Therefore, we conclude that the district court erred in finding a violation of the Open Meeting Law and reverse the district court's judgment entering a permanent injunction prohibiting future briefings. Because we conclude there was no violation of the Open Meeting Law, we need not address the remainder of the parties' contentions on appeal.

FACTS

The Redevelopment Agency of the City of Reno (Agency)¹ acquired the Mapes Hotel in 1996, and since that time has tried to find developers for the property. The hotel, built in 1947, had been listed on the register for the National Trust for Historic Preservation (NTHP), but was closed for over seventeen years prior to its demolition in January 2000.

On June 28, 1999, the Agency adopted a resolution by which it would accept bids for rehabilitation of the Mapes or, in the alternative, initiate paperwork for possible demolition. The Agency staff assembled a request for proposals (RFP), which was advertised in nine newspapers and sent to more than 580 developers whose names were supplied by NTHP.² The Agency received six responses that met the RFP requirements by the August 13, 1999, deadline for submission of bids. The responses were set for consideration at a public hearing scheduled for September 13, 1999.

On August 31, 1999, two private back-to-back briefings were conducted between members of the Agency staff and members of the Agency board. The purpose of the briefings was to discuss the staff's evaluation of the six RFP responses. The first briefing was attended by the staff and two Agency board members. The second briefing was attended by the staff and three Agency board members. For the purposes of an Agency meeting, a quorum is four or more members.

On September 11, 1999, two days prior to the public meeting, the Reno Gazette-Journal published an article reporting that three of the Agency members and the Reno city mayor intended to vote for demolition.

At the regularly scheduled public meeting on September 13, 1999, the Agency met to review the proposals for redevelopment, and to review the option of demolition and financing for demolition. Agency staff presented the proposals. The meeting lasted approximately six hours and included staff presentations, public testimony, and substantial discussion between the Agency members. At the conclusion of the meeting, the Agency members voted to demolish the Mapes. Preliminary demolition commenced in late November 1999.

On November 10, 1999, appellants filed a verified complaint in the district court seeking declaratory and injunctive relief. Appellants consist of four individual preservationists and two non-profit organizations (National Trust for Historic Preservation and Truckee Meadows Heritage Trust). The defendants below were the Agency and third-party Clauss Construction.³

In the complaint, appellants alleged that the private, back-to-back briefings on August 31, 1999, between the Agency members and their staff violated the Open Meeting Law.⁴ Appellants contended that this violation rendered void the Agency members' decision to demolish the Mapes at the subsequent September 13, 1999, public meeting. Appellants asserted three causes of action.

First, appellants sought an order declaring the actions of the Agency at the September 13, 1999, meeting void because of four alleged Open Meeting Law violations: (a) the Agency members took action on the Mapes issue through polling by the staff during the August 31 briefing; (b) the August 31 private briefings were meetings for the purpose of deliberating toward a consensus; (c) the Agency members publicly announced their decision prior to the public meeting (publication of information in the Reno Gazette-Journal) inferring action had been taken outside of the public hearing; and (d) the public meeting agenda was defective. Second, appellants sought an injunction (a) prohibiting the Agency from conducting future private briefings, and (b) requiring the Agency to reopen the review process and reconsider all proposals previously submitted.

Lastly, appellants sought to void the actions taken by the Agency at the September 13, 1999, meeting because the written agenda for the meeting was defective.

While the Agency did not file an answer to the complaint because trial was conducted before its duty to answer arose under NRCP 12, the district court considered the Agency's responsive pleading to the preliminary injunction motion as its answer. The bench trial was conducted on December 16 and 17, 1999, at which the district court admitted twenty exhibits, heard testimony from seventeen witnesses, and reviewed testimony from five witnesses by deposition.

All of the Agency members testified that the city attorney was not present at the private briefings, nor was a quorum present at either of the briefings. Testimony from the Agency members indicated that this was intentional, and the briefings were conducted with the intent of complying with the Open Meeting Law. The members present at the private briefings testified that their recollections of the briefings were not perfect.⁵ However, they remembered substantial portions of the briefings and testified that they did not provide their opinion or vote on the Mapes issue, nor were they polled as to their opinion or vote. The meeting attendees also indicated that the meetings were not intended to promote a discussion of the issues with the intent of arriving at a decision or course of action. Finally, all of the Agency members stated that they made their final decision regarding demolition of the Mapes at the public meeting on September 13, 1999.

Further, testimony by Agency members and Agency staff indicated that Agency staff did not communicate questions or comments made by the Agency members from the first briefing to those who attended the second briefing. Moreover, no evidence was presented to suggest that Agency members attending the first briefing communicated such information to members attending the second briefing. Additionally, based upon the testimony received at trial, the demolition option was not discussed at the August 31 private briefings because insufficient information was available regarding this option (i.e., no bid information). Councilwoman Sherrie Doyle, during the first briefing, questioned Agency staff members regarding the status of the demolition bid. She was told additional information would be available at the scheduled September 13 meeting. Agency staff indicated that information pertaining to the demolition bids was not available at the time of the private briefings. The focus of the private briefings was the RFP option status and bid rankings.

Additionally, Agency Assistant City Manager Donna Kristaponis testified that the RFP evaluation information, as provided to the advisory boards, was disclosed in a September 2, 1999, Reno Gazette-Journal article. Finally, many of the Agency members or staff gave extensive testimony regarding what took place at the briefings, and two Agency members' notes of their briefings were examined or introduced into evidence.

Appellants presented the testimony of former Councilwoman Judy Herman. Herman's testimony was presented to attempt to establish that staff briefings were routinely used to avoid the Open Meeting Law, inferring that the Mapes briefings were also used for this purpose. Herman testified that the city manager during this case, Charles McNeely, was also the Reno city manager during her tenure with the city council. Herman indicated that it was McNeely's customary practice to conduct private back-to-back briefings between staff members and less than a quorum of city council members for the purpose of discussing complex or controversial issues agendized for upcoming public meetings. Herman characterized the private back-to-back briefings as secret meetings or serial meetings designed to give information to council members that was not made available to the public.

Herman also asserted that McNeely habitually polled council members about their votes regarding issues before the council. Herman stated that McNeely did this by asking individual council members if they "had a problem" with an agenda item. As a result, Herman testified that she quit attending any private briefings based upon her belief that the meetings violated the Open Meeting Law. She admitted, however, that the Reno City Attorney had informed her that the briefings did not violate the Open Meeting Law.

The district court entered its order and judgment on December 21, 1999...