State of Nev. Employees Ass'n, Inc. v. Daines

• Court: Nevada Supreme Court
• Writing for the Court: PER CURIAM; MOWBRAY, C.J., SPRINGER, STEFFEN and YOUNG, JJ., and KOSACH
• Citation: State of Nev. Employees Ass'n, Inc. v. Daines, 824 P.2d 276, 108 Nev. 15 (Nev. 1992)
• Decision Date: 02 January 1992
• Docket Number: No. 22590,22590
• Parties: STATE OF NEVADA EMPLOYEES ASSOCIATION, INC., a Nevada Corporation, Jeanine Elliott, Bonnie Allec, Carl Barbee, Harry Gammie, Paula Tlachac, Novella Watson-Lee and Fred Suwe, Petitioners, v. Darrel DAINES, in his Official Capacity as Controller of the State of Nevada, Respondent.

Page 276

824 P.2d 276

108 Nev. 15

STATE OF NEVADA EMPLOYEES ASSOCIATION, INC., a Nevada Corporation, Jeanine Elliott, Bonnie Allec, Carl Barbee, Harry Gammie, Paula Tlachac Novella Watson-Lee and Fred Suwe, Petitioners, v. Darrel DAINES, in his Official Capacity as Controller of the State of Nevada, Respondent.

No. 22590.

Supreme Court of Nevada.

Jan. 2, 1992.

[108 Nev. 16] Norah Ann McCoy, SNEA, Carson City, for petitioners.

Frankie Sue Del Papa, Atty. Gen., Kateri Cavin, Deputy Atty. Gen., James T. Spencer, Deputy Atty. Gen., Carson City, for respondent.

OPINION

PER CURIAM:

Petitioners in this original action seek a writ of mandamus compelling respondent Darrel Daines, Controller of the State of Nevada, to issue warrants for petitioners' salaries, including the four percent pay raise appropriated by the 1991 Nevada State Legislature to become effective October 1, 1991. 1991 Nev.Stat. ch. 496 at 1515 (approved June 30, 1991).

On December 13, 1991, following the oral arguments in this matter, this court directed the clerk of this court to issue a writ of mandamus compelling respondent forthwith to issue warrants sufficient to pay the salary increases provided to the classified employees of the state by the legislature. We specifically directed such salary increases to be paid retroactively from October 1, 1991, and we indicated that a formal opinion setting forth the grounds for our decision would be forthcoming. This opinion constitutes our final resolution of this proceeding.

FACTS

On June 30, 1991, the Nevada State Legislature passed a bill appropriating funds for a four percent salary increase for classified state employees. The salary increase was to become effective October 1, 1991. 1991 Nev.Stat. ch. 496 at 1515 (Assembly Bill 815). The governor signed the bill (hereinafter "the act") into law.

On September 26, 1991, at a meeting of the Nevada State Board of Examiners, the clerk of the board of examiners, based on projected revenue shortfalls, recommended that "the Board of Examiners defer allocation and disbursement of the funds appropriated for salary adjustments for up to three months from the time the legislature contemplated their enactment." The board of examiners unanimously adopted the clerk's recommendation.

As a result of the action of the board of examiners, the respondent state controller refused to issue warrants sufficient to pay the authorized salary increases in the paychecks delivered to state employees beginning on October 11, 1991. This petition followed.

DISCUSSION

Petitioners contend that, pursuant to NRS 227.160, the state controller has a non-discretionary duty resulting from his office to pay the salary increases enacted by the legislature. ¹ We agree. This court has held that "[a]n appropriation of money to a specific object would be an authority to the proper officers to pay the money, because the auditor is authorized to draw his warrant upon an appropriation, and the treasurer is authorized to pay such warrant if he has appropriated money in the treasury." State v. Eggers, 29 Nev. 469, 481, 91 P. 819, 823 (1907) (quoting Ristine v. State, 20 Ind. 328). Thus, unless the act itself allows the board or the governor discretion in the payment of the salary increases, or the board or the governor are empowered by the constitution or by statute to defer payment of legislatively authorized salary increases, the controller has an absolute duty pursuant to NRS 227.160 to issue his warrants according to the legislative will.

Respondent essentially concedes this point and argues correctly that "the proper analysis of this matter begins and ends with the classified pay bill." Section 1(2) of the act provides:

2. The state board of examiners, upon recommendation of the director of the department of administration, may allocate and disburse to the various departments, commissions and agencies of the State of Nevada, out of the money appropriated by this section such sums of money as may from time to time be required, which when added to the money otherwise appropriated or available equals the amount of money required to pay the salaries of the classified employees of the respective departments, commissions and agencies under the adjusted pay plan.

1991 Nev.Stat. ch. 496, § 1, at 1515 (Emphasis added.) ²

Respondent argues that the legislature's use of the word "may" rather than "shall" in sections 1(2), 2(2) and 3(3) indicates that allocation and disbursement of the appropriated amounts to pay salary increases is discretionary with the board of examiners and the Director of the Department of Administration. We disagree.

This court has stated that in statutes, "may" is permissive and "shall" is mandatory unless the statute demands a different construction to carry out the clear intent of the legislature. Givens v. State, 99 Nev. 50, 54, 657 P.2d 97, 100 (1983). This court has also held, however, that the term "may" in a statute is conditional rather than permissive if the purpose of the statute requires that construction. Nev. Real Est. Comm. v. Ressel, 72 Nev. 79, 82, 294 P.2d 1115, 1116 (1956) ("may" in a statute was not permissive; the statute created a duty to act upon the occurrence of a specified condition, leaving "no area for the exercise of discretion"). This construction of the word "may" has been recognized in numerous cases, especially where used to define the duties of a public officer. Id.

Close examination of the language of the act in this case reveals that "may" in the act is conditional rather than permissive. Section 2(3) of the act provides that the state board of examiners "may allocate and disburse ... out of the money appropriated" such sums of money as "may from time to time be required" to "pay the salaries of the classified employees ... under the adjusted pay plan."

The "pay plan" is the grade and step salary schedule for classified employees created by the Department of Personnel pursuant to NRS 284.175. Clearly, the legislature intended that the Department of Personnel would adjust the pay plan by approximately four percent. ³ The language of the act requires the board of examiners to allocate additional funds to state agencies to meet these pay increases upon the conditions set forth, i.e., when the funds previously appropriated for salaries are insufficient to pay the salaries required under the revised grade and step pay plan. ⁴ We conclude, therefore, that the governor and the board's decision to defer the legislatively enacted salary increases cannot be justified under the language of the act.

Respondent asserts, nevertheless, that an appropriation creates no duty that the appropriated money actually be spent. Respondent argues that because public officials are specifically prohibited from spending more than the amount appropriated but not specifically enjoined from spending less, it is permissible to spend less. See NRS 353.260(1). The instant case is not, however, a case of a public official spending less than the amount appropriated by the legislature. In this case, the legislature enacted a pay raise, designated a date on which the raise would become effective, and appropriated funds to accomplish its purpose. The executive branch has attempted to impound the funds specifically appropriated for this salary increase in a manner that would defeat the legislative purpose and essentially rewrite the act. The executive is not empowered to disregard the mandate of the legislature that certain salaries be paid. See Ellis v. City of Valdez, 686 P.2d 700, 705 (Alaska 1984) (recognizing a distinction between cases where the executive has attempted to impound funds and cases in which an agency has exercised discretion with respect to the expenditure of funds authorized for particular purposes within the expertise of the agency).

Respondent contends that the governor could order deferral of disbursement of the salary increases pursuant to the "supreme executive power" vested in him by article 5, section 1 of the Nevada Constitution. ⁵ Respondent has failed to cite any authority, however, for the proposition that the supreme executive power of the State of Nevada includes the power to disregard acts of the legislature. Indeed, the governor has a constitutional duty to see that the laws enacted by the legislature are faithfully executed. Nev. Const. art. 5, § 7; Galloway v. Truesdell, 83 Nev. 13, 20, 422 P.2d 237, 242 (1967) (executive power extends to carrying out and enforcing laws enacted by the legislature).

Further, it is well established that the power of controlling the public purse lies within legislative, not executive authority. See, e.g., State v. Fairbanks North Star Borough, 736 P.2d 1140 (Alaska 1987) (a statute purporting to give the governor the power to withhold or reduce the budget of state agencies was struck down as an unconstitutional delegation of legislative power); State v. State Board of Finance, 367 P.2d 925 (N.M.1961) (statute purporting to permit state board of finance to reduce annual operating budgets struck down as violative of separation of powers doctrine); County of Oneida v. Berle, 404 N.E.2d 133 (N.Y.1980) (governor could not reduce a lawfully enacted appropriation); see also House of Representatives v. Martinez, 555 So.2d 839, 845 (Fla.1990) (governor may not veto one of several funding sources; he must veto all or none). Thus, the action of the governor was not authorized by his "supreme executive power."

Similarly, the board of examiners had no constitutional authority to defer salary increases enacted by the legislature and signed into law by the governor. Article 5, section 21 of the Nevada Constitution provides:

The Governor, Secretary of State and Attorney General ... shall also constitute a Board of Examiners, with power to examine all claims against the State (except salaries or compensation of Officers fixed by law) and perform such other duties as may be prescribed by law, and no claim...