City Council of Reno v. Reno Newspapers, Inc. , 105 Nev. 886 ( 1989 )

Young, C. J.,

with whom Steffen, J., agrees,,

dissenting:

I respectfully dissent. I agree that the pivotal question is whether the closed meeting in question violated Nevada’s Open Meeting Law. The controlling language is found in Chapter 241 of Nevada Revised Statutes.

The majority, in its opinion, states: “Section 1 of NRS 241.030 provides that a public body may hold ‘a closed meeting to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.¹

The majority then continues:

However, section 3 of NRS 241.030 enumerates certain things the Open Meeting Law does not permit, and, in NRS 241.030(3)(e), the statute clearly provides that the Open Meeting Law “does not permit a closed meeting for the discussion of the appointment of any person to public office or as a member of a public body.”

Thereafter, the majority opinion argues: “NRS 241.030(3)(e) limits the exception contained in NRS 241.030(1) by prohibiting a closed meeting for the discussion of the appointment of any person to public office.” The majority then cóncludes that because of this perceived limitation, the City Council violated Nevada’s Open Meeting Law.

I submit the conclusion of the majority completely ignores the following underlined language in NRS 241.030(1): “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 added.)

NRS 241.030(3)(e), which is the predicate of the majority opinion, is clearly included within “[njothing contained in this chapter.” Therefore, if there is a conflict between NRS 241.030(3) (e) and NRS 241.030(1), manifestly it was the intention of the legislature that NRS 241.030(1) should control — not NRS 241.030(3)(e). If the underlined language had been omitted in the statute — as it was in the majority quotation — then the construction of the two sections utilized by the majority is not unreasonable. If the underlined language is respected, however, I submit that the conclusion of the majority is untenable.

Perhaps more importantly, the majority view virtually suspends NRS 241.030(1) whenever persons who are candidates for public office are involved in the council’s discussions. The council is thus precluded from discussing the character, alleged misconduct, professional competence or health of such persons notwithstanding the complete lack of statutory support for such a proposition. Rather than harmonizing the two statutes at issue, an easy task at worst, and giving effect to both, the majority has simply declared NRS 241.030(1) a nullity when directed at council discussions involving candidates for public office. I would never attribute such ineptitude to the legislature. Given the high profile of open meeting law legislation, it seems highly unlikely that the legislature would have overlooked the premise established judicially by the majority.

Moreover, if there is an ambiguity between the two subsections, I suggest that the ambiguity should be resolved in favor of the provisions of NRS 241.030(1) being deemed controlling. If criminal liability can be imposed, a statute should be strictly construed. The construction employed by the majority would subject those violating the provisions of NRS 241.030(3)(e) to criminal liability because Chapter 241 states that violation of the provisions thereof is a misdemeanor. Thus, under the reasoning of the majority opinion, the attorney general or district attorney is charged with filing a criminal complaint against members of the City Council. I submit such an unreasonable interpretation militates against the conclusion of the majority.

If the legislature had intended that NRS 241.030(3)(e) is to control, it would have eliminated the underlined language in NRS 241.030(1) above. But for these fourteen underlined words, I would agree with the majority.

If NRS 241.030(3)(e) is not controlling as reasoned above, I submit the actions of the City Council fully complied with NRS 241.030(1). See McKay v. Bd. of Supervisors, 102 Nev. 644, 730 P.2d 438 (1986). The record reflects that the Reno City Council, in filling the office of city clerk, interviewed the applicants in open session. The controverted meeting was closed for approximately twenty minutes with approval of its legal counsel while the council members discussed only the character and competency of the applicants. The council then immediately reconvened in open session, at which time two candidates were nominated with a vote being taken revealing applicant Don Cook as the newly chosen city clerk. Under the guidance set forth in McKay v. Bd. of Supervisors, supra, the Reno City Council conducted the meeting in a proper manner. Moreover, the council did not discuss the appointment of any individual in a closed session as prohibited by the statute. For the reasons stated above, I respectfully disagree with the opinion of the majority.

1 The majority quote omits the first eleven words, namely “Nothing contained in this chapter prevents a public body from holding” and therein lies the difference between how my colleagues in the majority and I view the statutory intent.