Del Papa v. Board of Regents of University and Community College System of Nevada
| Decision Date | 09 April 1998 |
| Docket Number | No. 28966,28966 |
| Citation | 956 P.2d 770,1144 Nev. 388 |
| Parties | , 126 Ed. Law Rep. 471 Frankie Sue DEL PAPA, Attorney General, Appellant, v. The BOARD OF REGENTS OF THE UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA, Respondent. |
| Court | Nevada Supreme Court |
This is an appeal from an order of summary judgment in an action to enforce Nevada's Open Meeting Law. Appellant, the Attorney General, contends that the district judge erred in determining as a matter of law that telephone polling does not constitute a meeting under any circumstances. We agree. However, we affirm on other grounds the district judge's decision to dismiss the action.
Nancy Price is a duly elected member of the Board of Regents (hereinafter "the Board") for the University and Community College System of Nevada (hereinafter "the University"). On several occasions prior to April 5, 1992, Price made comments to the press criticizing the conduct of her fellow Regents. In these public statements, she objected to the process by which the Board selected an external auditor and the processes by which the presidents of the University of Nevada, Las Vegas, and the Western Nevada Community College were selected. Thereafter, at least seven Board members individually expressed their concerns about these comments to the chairman, James Eardley.
On April 5, 1995, Eardley met with Constance Howard, 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 Eardley reviewed the media advisory, it was disseminated by facsimile transmission to all of the Board members except Price. The draft advisory stated:
The individual members of the University and Community College System of Nevada Board of Regents wish to express their concern and opinion that recent statements to the media by Regent Nancy Price are unsubstantiated, incorrect and potentially damaging to the Board and the University System as a whole. While the members of the Board respect the right of any one member to express his or her opinions, it is their sense that some of Regent Price's comments go beyond opinion and are, in fact, unsubstantiated accusations of wrong doing. The members of the Board feel it is important to protest publicly against these statements in the interests of protecting the integrity of the Board and its policy-making role for Nevada's higher education system.
(Emphasis added.)
A memorandum written by Howard accompanied the draft advisory requesting feedback on the draft, and seeking advice as to whether the proposed course of action should be pursued. The memorandum further indicated Eardley's two-fold purpose in issuing the advisory: to protest some of Price's earlier comments and to seek more balanced coverage from the media. Finally, the memorandum stated that no release would occur without Board approval.
On April 5, 1995, the recipients of the draft advisory responded by way of telephone calls to either Eardley, Howard, or both. These calls were charged to University calling cards. Some of the Regents who responded disagreed with the use of their names and, in varying degrees, to the language of the advisory itself. 1 On April 6, 1995, Eardley decided not to issue the advisory.
After receiving a complaint from Regent Price regarding these facsimile transmissions and telephone calls, the Attorney General filed the instant lawsuit. Four counts of the Attorney General's complaint charged the Regents with violating the Open Meeting Law by deciding whether to release the draft privately by "fax" and telephone rather than by public meeting. The other two counts alleged that the Regents had conducted a closed meeting to consider the character, alleged misconduct and professional competence of Price without giving her notice of the meeting. The Attorney General sought to establish violations of several sections of NRS chapter 241. She also sought injunctive relief prohibiting the Regents from repeating those violations, and a judgment voiding the result of the non-public poll. The district court granted summary judgment in the Board's favor on these issues.
In 1993, NRS 241.020(1) provided that "all meetings of public bodies must be open and public, and all persons must be permitted to attend any meeting of these bodies." NRS 241.020(1) (amended 1995). 2 The term " '[m]eeting' means the gathering of members of a public body at which a quorum is present to deliberate toward a decision or to make a decision on any matter over which the public body has supervision, control, jurisdiction or advisory power." 3 NRS 241.015(2) (1995). 4 Furthermore, "electronic communication ... must not be used to circumvent the spirit or letter of [NRS chapter 241] in order to discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory powers." NRS 241.030(4).
The Attorney General argues that the district court erred in determining as a matter of law that these individual telephone calls and faxes between Regents and/or their employees did not constitute a "meeting" as defined by NRS chapter 241.
"The construction of a statute is a question of law." General Motors v. Jackson, 111 Nev. 1026, 1029, 900 P.2d 345, 348 (1995). Board of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983) (citations omitted). "A statute should always be construed to avoid absurd results." General Motors, 111 Nev. at 1029, 900 P.2d at 348.
"Where the language of a statute is plain and unambiguous, and its meaning is clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself." State v. Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922), quoted in Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990). "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." McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986) (hereinafter "McKay").
The Board argues that a meeting could not have taken place because a quorum of the members was not "present" to make the decision. It claims that the term "present" means "in view" or "at hand." Webster's New Collegiate Dictionary 910 (1975). The Board further argues that it was neither "in view" nor "at hand" because the words "at hand" are defined as "near in time or place ." Webster's New Collegiate Dictionary 514 (1980). However, the term "present" is also defined as "within reach, sight or call." Webster's Third New International Dictionary, 1783 (1968) (emphasis added).
The Attorney General, in a 1985 opinion, interpreted the term "present" as follows:
[W]here ... the members of a public body agree that action will be taken by that body through the use of a predetermined mail poll procedure, the members of the public body should be treated by the law as "present" to conduct business. This conclusion is especially warranted in circumstances such as are presently considered where the members have consented in advance to be ready in mind, if not physically, to deliberate and decide public business in private without the statutorily mandated scrutiny of a public meeting.... Under these circumstances, a mail balloting by a public body would constitute a meeting within the statutory purview of NRS 241.015(1).
85-19 Op. Att'y Gen. 90, 92 (1985).
Thus, the term "present" can logically be interpreted in different ways. "Where a statute is capable of being understood in two or more senses by reasonably informed persons, the statute is ambiguous." McKay, 102 Nev. at 649, 730 P.2d at 442. Once the statute is deemed ambiguous, the plain meaning rule has no application and Id. at 650-51, 730 P.2d at 442-43.
The purpose of this legislation is set forth at NRS 241.010 which provides that
This court has held that "[t]he spirit and policy behind NRS chapter 241 favors open meetings." McKay, 102 Nev. at 651, 730 P.2d at 443. "[T]he intent of the law [is] that the actions and deliberations of public bodies be taken openly." Id.
An examination of legislative history is also useful to determine legislative intent. United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3121-3122, 92 L.Ed.2d 483 (1986); see also McKay v. Board of Cty. Comm'rs, 103 Nev. 490, 492 n. 2, 746 P.2d 124, 125 n. 2 (1987) ().
NRS chapter 241 was adopted in 1960 and revised dramatically in 1977. In 1977, the legislature adopted the current definition of the term "meeting." See NRS 241.015(2). In doing so, it considered two bills, A.B. 437 and S.B. 333. The legislature specifically considered the issue raised...
To continue reading
Request your trial
-
Wood v. Battle Ground School Dist.
... ... DISTRICT, Battle Ground School District Board, and Roger Sharp, Sam Kim, and Fred Striker, ... board members violated Sunshine Law); Del Papa v. Bd. of Regents of the Univ. & Cmty. Coll ... ...
-
Yancy v. Shatzer
... ... felt that they needed to devise a system to settle his affairs in an orderly fashion. Id ... ) ("[B]ecause periods of supervision or community control may expire before a case may be reviewed, ... Nevada: Del Papa v. Bd. of Regents, 114 Nev. 388, 401, 956 P.2d 770, 779 (1998) ("Although the Board chose not to issue the release, our decision on ... ...
- State v. Doyal
-
Esperanza Peace/Just. Ctr. v. City of San Antonio, SA-98-CA-0696-OG.
... ... generates multi-issue/multicultural community organizing while providing resources and space ... appoints an eleven-member Cultural Advisory Board (CAB). DACA was created in the City's 1988-89 ... and choice upon which our political system rests"); Cox v. Louisiana, 379 U.S. 536, 551, ... v. Regents of the Univ. of N.Y., 360 U.S. 684, 688, 79 ... at 837, 115 S.Ct. 2510 (public university's student activities funds may not be disbursed ... held that a professor employed in a state college system could not be denied renewal of his ... thus violates the open meetings act); Del Papa v. Board of Regents of the University and ty College System of Nevada, 114 Nev. 388, 392, 956 P.2d 770, 778 (1998) ... ...