McKay v. Board of Sup'rs of Carson City

Decision Date30 December 1986
Docket NumberNo. 17145,17145
Citation730 P.2d 438,102 Nev. 644
Parties, 13 Media L. Rep. 2066 Brian McKAY, Attorney General of the State of Nevada, Appellant, v. The BOARD OF SUPERVISORS OF CARSON CITY, Nevada, Respondent.
CourtNevada Supreme Court

Brian McKay, Atty. Gen., and Scott Doyle, Deputy Atty. Gen., Carson City, for appellant.

Noel S. Waters, Dist. Atty. and Charles P. Cockerill, Deputy Dist. Atty., Carson City, for respondent.

OPINION

YOUNG, Justice:

This case involves interpretation of Nevada's Open Meeting Law, NRS chapter 241. The district court ruled that Carson City could properly terminate its former city manager in a closed meeting. The Attorney General argues this was error because the Nevada Open Meeting Law mandates any action to terminate the city manager be taken in an open meeting. We agree.

On August 12, 13, 1985, the Carson City Board of Supervisors (Board) met in closed session and voted to request the city manager's resignation and to authorize six months severance pay when the resignation was submitted. The meeting was noticed in accordance with NRS 241.020(3)(a) 1 At an open and properly noticed meeting August 15, 1985, the mayor put on the record the Board's August 13 action requesting the resignation of the city manager. Sometime after that date, the Nevada Appeal and the Reno Gazette Journal complained to the Attorney General that the Board's action violated Nevada's Open Meeting Law, NRS chapter 241. The Attorney General is authorized by NRS 241.037 2 to maintain suit in court to have any action taken by a public body which is in violation of the Open Meeting Law declared void and to seek an injunction against the public body to require compliance with the statute.

and the Board was advised by counsel during this session.

On October 10, 1985, the Attorney General filed a complaint in district court for declaratory and injunctive relief, pursuant to NRS 241.037. The complaint alleged the decision of the Board to terminate the city manager exceeded the statutory authorization for closed meetings and thus violated NRS 241.030. 3 The Board answered and denied that its action violated the statute, claiming that the meeting came under the exemption from open meeting requirements contained in NRS 241.030(1).

On November 22, 1985, the Board moved for summary judgment. The parties had stipulated to the facts, and the Board claimed there was only an issue of law to be decided, i.e. whether the Board's conduct was expressly exempted from the open meeting requirement. The Attorney General opposed the motion, claiming the Board's action did not come within any of the express exemptions to the requirement of an open meeting.

The district court held a hearing January 13, 1986, heard argument and ruled in favor of the Board. The Attorney General then moved to amend the findings of fact, conclusions of law and judgment, which was denied. The Attorney General now appeals from the order granting summary judgment and the order denying the motion to amend.

NRS chapter 241 contains the provisions of Nevada's Open Meeting Law. NRS. 241.010 4 declares the legislative intent. This section states that all public bodies exist to aid in the conduct of the people's business and that the legislature intends that its actions and deliberations be conducted openly. NRS 241.020 5 requires that all meetings of public bodies shall be open and public except as otherwise specifically provided by statute, and all persons shall be permitted to attend any meeting of these bodies. NRS 241.030 6 states the exceptions to the open meeting requirement.

STATUTORY CONSTRUCTION
1. Plain Meaning.

The Attorney General and Carson City each assert the "plain meaning rule" of statutory construction supports their respective arguments. It is well settled in Nevada that words in a statute should be given their plain meaning unless this violates the spirit of the act. Application of Filippini, 66 Nev. 17, 24, 202 P.2d 535, 538 (1949). Where a statute is clear on its face, a court may not go beyond the language of the statute in determining the legislature's intent. Thompson v. District Court, 100 Nev. 352, 354, 683 P.2d 17, 19 (1984); Robert E. v. Justice Court, 99 Nev. 443, 664 P.2d 957 (1983).

Both parties focus their arguments on the interpretation of NRS 241.030(1), which states: "Nothing contained in this chapter prevents a public body from holding a closed meeting to consider the character, alleged misconduct, professional competence, or physical or mental health of a person." (Emphasis supplied.) The Attorney General claims this section must be construed literally, so that the four things that may be considered in a closed meeting are exclusive. Further, the word "consider" as used in the statute, means just that, to think about, but not to decide. See Black's Law Dictionary 378 (4th ed. 1968); Webster's Seventh Collegiate Dictionary 177-178 (1969 ed.). Consequently, the Attorney General claims the Board was authorized only to "consider" the city manager's character, alleged misconduct, professional competence or physical or mental health in a closed session, but not authorized to make the decision to terminate him. This decision could only properly be made in an open meeting.

Carson City argues that the plain meaning of "consider" necessarily includes decision making, citing Webster's New World Dictionary (Second College Edition) and the American Heritage Dictionary of the English Language. Further, the word "consider" should be construed in a common sense fashion. To allow a public body to conduct closed discussions of a person's character, alleged misconduct, professional competence, or physical or mental health, and then to require that the decision to terminate that person be made in public session offends common sense.

Carson City relies heavily on decisions from foreign jurisdictions to support its position regarding the plain meaning of "consider" as used in NRS 241.030(1). E.g., Lucas v. Board of Trustees, 18 Cal.App.3d 988, 96 Cal.Rptr. 431 (1971); Jeske v. Upper Yoder Township, 44 Pa.Cmwlth. 13, 403 A.2d 1010 (1979); Roth v. Borough of Verona, 74 Pa.Cmwlth. 352, 460 A.2d 379 (1983). The district court also relied on these decisions in its conclusions of law. However, the courts in these cases were construing their own open meeting laws, which are similar, but not identical, to the Nevada Open Meeting Law. Each of these jurisdictions requires open meetings, with certain enumerated exemptions, but each also expressly allows closed session consideration of termination or dismissal of a public employee. See Cal.Gov.Code § 54957 (West 1983); Pa.Stat.Ann. title 65, § 263 (Purdon 1986); see also Wis.Stat.Ann. § 19.85 (West 1986). Because the open meeting laws of California, Pennsylvania and Wisconsin expressly allow closed session consideration of termination or dismissal, and the Nevada Open Meeting Law does not, the district court erred in relying on foreign cases construing the word "consider" as used in those statutes.

From the foregoing, it is apparent that both parties present fairly persuasive arguments for the construction of the word "consider" as used in NRS 241.030(1). Where a statute is capable of being understood in two or more senses by reasonably informed persons, the statute is ambiguous. Robert E. v. Justice Court, supra, 99 Nev. at 445. Since either of the interpretations proffered by the parties can reasonably be drawn from the language of the statute at issue here, it can be said the statute is ambiguous and the plain meaning rule has no application. Thompson v. District Court, supra, 100 Nev. at 354. An ambiguous statute can be construed "in line with what reason and public policy would indicate the legislature intended." Robert E., 99 Nev. at 445. The effect of the 1977 amendments to NRS 241.030 provides some guidance as to the legislature's intent.

2. Effect of 1977 Amendments.

NRS 241.030, as originally enacted, 7 expressly allowed a public body to consider appointment, employment or dismissal of public officers or employees in closed session. In 1977 the legislature amended the statute to its present form, and deleted the express provision allowing appointment, employment or dismissal in closed session. 1977 Nev.Stat. 1100. The statute now allows consideration of a person's character, alleged misconduct, professional competence or physical or mental health. NRS 241.030(1). Subsection (3)(e) of the statute expressly prohibits the appointment of a person in closed session. "Employment" and "dismissal" are no longer expressly mentioned in the statute.

Where a statute is amended, provisions of the former statute omitted from the amended statute are repealed. City of Reno v. Stoddard, 40 Nev. 537, 543, 167 P. 317, 318 (1917); Cawley v. Pershing County, 50 Nev. 237, 255 P. 1073 (1927). It is ordinarily presumed that the legislature, by deleting an express portion of a law, intended a substantial change in the law. Crane, Hastings & Co. v. Gloster, 13 Nev. 279, 280-281 (1878); accord, Brousseau v. Fitzgerald, 138 Ariz. 453, 675 P.2d 713 (1984); People v. Dillon, 668 P.2d 697 (Cal.1983). These rules of statutory construction demonstrate that the legislature intended to require open meetings for the decision to terminate a public employee, because the legislature deleted the former provision of the statute which expressly allowed termination in closed session.

3. Legislative Intent.

The leading rule of statutory construction is to ascertain the intent of the legislature in enacting the statute. City of Las Vegas v. Macchiaverna, 99 Nev. 256, 257, 661 P.2d 879, 880 (1983). This intent will prevail over the literal sense of the words. Id. at 257-258. The meaning of the words used may be determined by examining the context and the spirit of the law or the causes which induced the legislature to enact it. Id. The entire subject matter and policy may be involved as an interpretive...

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