University & Community College System of Nevada v. DR Partners

18 P.3d 1042, 117 Nev. 195, 117 Nev. Adv. Rep. 19, 29 Media L. Rep. (BNA) 1495, 2001 Nev. LEXIS 20
CourtNevada Supreme Court
DecidedMarch 9, 2001
Docket36984
StatusPublished
Cited by16 cases

This text of 18 P.3d 1042 (University & Community College System of Nevada v. DR Partners) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
University & Community College System of Nevada v. DR Partners, 18 P.3d 1042, 117 Nev. 195, 117 Nev. Adv. Rep. 19, 29 Media L. Rep. (BNA) 1495, 2001 Nev. LEXIS 20 (Neb. 2001).

Opinions

[196]*196OPINION

By the Court,

Rose, J.:

The question presented by this appeal is whether the office of community college president is a public office. A presidential search committee wants to interview applicants for the presidency in a closed meeting, but Nevada’s open meeting law, NRS chapter 241, prohibits a public body from discussing a public officer’s appointment in a closed session. The open meeting law does not define “public office” or “public officer,” so the parties and the district court turned to the statutory definition provided in NRS chapter 281, which governs public officers and employees generally. NRS 281.005(1) defines “public officer” to include any person appointed to a position that (a) is established by state constitution or statute, or by charter or ordinance of a state political subdivision, and (b) involves the continuous exercise of a public power, trust or duty as part of regular and permanent government administration. The district court concluded that the community college president is a public officer under this definition.

We agree that NRS 281.005(1) may be used to define who is a public officer within the context of the open meeting law. Nevertheless, we conclude that the community college president is not a public officer because (1) the position was not created by law, but rather by Nevada’s state university Board of Regents, and (2) the president does not regularly exercise sovereign governmental functions set by law, but only implements policies set by the Board of Regents. Therefore, the open meeting law does not prohibit closed applicant interviews.

FACTS

The position of president of the Community College of Southern Nevada (CCSN) became vacant in January 2000. The Board of Regents formed a Presidential Search Committee, consisting of five Board members, to conduct a nationwide search and recommend to the Board a short list of qualified candidates for the position. The Committee narrowed the field to six applicants, scheduled interviews to be held during a joint meeting of the [197]*197Committee and the Board on September 28 and 29, 2000, and flew in the five out-of-state candidates.

In compliance with the open meeting law, the Committee published its agenda for the two-day joint meeting. The agenda noted that the Committee would hold a closed session to discuss “the character, alleged misconduct, professional competence, or physical or mental health of the applicants for the position of the CCSN President.’ ’ The Committee planned to use the closed session to interview the six applicants. According to the agenda, the Committee would then return to open session to discuss the applicants, select finalists and schedule further activities for the finalists.

On September 27, 2000, DR Partners, a Nevada general partnership doing business as the Las Vegas Review Journal (the Newspaper), filed a complaint for emergency injunctive and declaratory relief, challenging the legality of the scheduled closed-door interview session. The Newspaper’s complaint, which named as defendants the University and Community College System of Nevada (UCCSN) and the chancellor and eleven regents in their official capacities (collectively, the University), alleged that the Committee could not close the interview session because NRS 241.030(3)(e) prohibits a closed meeting for the discussion of the appointment of any person to public office, and the position of CCSN president is a public office. The complaint noted that the open meeting law does not define “public office,” but the Attorney General in the Nevada Open Meeting Law Manual has opined that “NRS 241.030(3)(e) encompasses: (1) all elected public officers; and (2) all persons appointed to positions created by law whose duties are specifically set forth in law and who are made responsible by law for the direction, supervision and control of their agencies.”1

With its complaint, the Newspaper also sought a temporary restraining order and preliminary injunction to stop the Committee from holding the closed-door session set for the next morning. The district court heard the parties’ arguments in chambers, granted the application for a temporary restraining order and set the injunctive relief motion for hearing on September 29, 2000. On September 28, 2000, the University filed an opposition to the preliminary injunction application, arguing that the community college president is not a “public officer” as defined by NRS 281.005(1). That same day, the Newspaper filed a supplemental memorandum in support of its application for a preliminary injunction, arguing that the community college president is a “public officer” as defined by NRS 281.005(1).

[198]*198During the hearing on September 29, 2000, the parties and the court applied the definition of “public officer” provided by NRS 281.005(1):

“public officer” means a person elected or appointed to a position which:
(a) Is established by the constitution or a statute of this state, or by a charter or ordinance of a political subdivision of this state; and
(b) Involves the continuous exercise, as part of the regular and permanent administration of the government, of a public power, trust or duty.

The parties and the court acknowledged during the hearing that this definition is statutorily limited to chapter 281, but they did not consider any other statutory or dictionary definitions of ‘ ‘public office” or “public officer.” They also did not discuss the Attorney General’s opinion that NRS 241.030(3)(e) encompasses persons appointed to positions created by law, whose duties are set by law and who are held legally responsible for the direction, supervision, and control of their agencies. The parties and the court primarily discussed whether the bylaws establishing the position of community college president are sufficiently analogous to a political subdivision’s charter to satisfy the first part of the statutory definition, and reviewed and discussed case law interpreting the criteria contained in the second part of the definition.

Ultimately, the district court decided that “the delegation of authority, public power, trust, and duties evidenced in the Nevada Statutes and the [University] System’s governing documents render the President of CCSN a public officer.” The district court granted a preliminary and permanent injunction prohibiting the Committee from holding a closed session to discuss “the character, alleged misconduct, professional competence, or physical or mental health of the Applicants for the position of the CCSN President.” The applicants returned to their homes without being interviewed.

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Bluebook (online)
18 P.3d 1042, 117 Nev. 195, 117 Nev. Adv. Rep. 19, 29 Media L. Rep. (BNA) 1495, 2001 Nev. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/university-community-college-system-of-nevada-v-dr-partners-nev-2001.