OFFICIAL OPINIONS OF THE ATTORNEY GENERAL

OFFICIAL OPINIONS OF THE ATTORNEY GENERAL - 1996

OPINION NO. 96-01CORPORATIONS; PROSTITUTION;SECURITIES: Securities registration

materials do not constitute advertising a brothel in Nevada counties where such activities are

illegal.

Carson City, February 7, 1996

The Honorable Dean Heller, Secretary of State, Capitol Complex, Carson City, Nevada 89710

Dear Mr. Heller:

You have posed a question regarding an application for security registration filed

by Sporting Houses Management Corporation (hereinafter Sporting Houses). Before acting on the

application you seek guidance on the following matter.

QUESTION

Would the Sporting Houses prospectus, and other sales literature, filed with the

company's initial registration, constitute unlawful advertising of a house of prostitution under NRS

201.430 or NRS 201.440 if such materials were distributed to investors in Nevada counties where

all forms of prostitution are prohibited?

ANALYSIS

Unless exempt, a person must register a security transaction with the Securities

Division of the Secretary of State's office. Security registration must occur prior to any sale or

offer to sell such securities in our state. See NRS 90.460.

Sporting Houses, a Nevada corporation, filed a common stock registration on

January 10, 1996. Sporting Houses registered its stock offering by qualification as allowed under

NRS 90.490. Sporting Houses also filed an exempt offering notice with the Federal Securities and

Exchange Commission pursuant to rule 504 of Regulation D promulgated under the Securities

Exchange Act of 1933.

Both NRS 90.490 and the Regulation D filing allow general solicitation of investors

in the offered securities throughout all Nevada counties.

In the materials filed with the Secretary of State, Sporting Houses disclosed that it

intends to develop and operate a resort hotel located generally in Nye County, Nevada. Sporting

Houses further disclosed an intent to purchase an existing legal brothel and 300 acres of land

adjacent thereto. Sporting Houses declares in its prospectus an intent to expand the existing

business into an adult fantasy resort.

The existing brothel is currently licensed and regulated under Nye County

ordinances. See Nye County Code, Chapter 9.20. Sporting Houses has disclosed its intent to apply

for new county licensing for brothel operation once it has purchased the business.

Within the registration documents, Sporting Houses filed a prospectus detailing the

company, its financial status, and its proposed business plan for the venture in Nye County.

Sporting Houses also provided sales literature regarding the proposed resort hotel, as well as a

document intended to solicit offerings of securities commonly known as a "tombstone."

The above-described materials are subject to review by staff of the Securities

Division to assure compliance with state law. If the Secretary of State finds that the entity

attempting to register securities for sale is engaged in illegal activity where performed, he may in

the public interest deny filing the securities registration. When the Sporting Houses materials were

so reviewed, a concern arose regarding legality of the materials to be distributed to potential

investors.

The Secretary of State now requests our guidance on whether provisions of NRS

201.430 or 201.440 would be violated if Sporting Houses was allowed to solicit investors in its

proposed business venture using the filed prospectus and other materials. Based upon this

legitimate concern, the Secretary of State seeks this opinion.

Under NRS 90.510(1)(d), the Administrator of the Securities Division may deny a

registration of securities if the administrator finds that the order is in the public interest and that

"[t]he issuer's enterprise or method of business includes or would include activities that are illegal

where performed." [Emphasis added.]

We first examined Sporting Houses' proposal to determine if the enterprise would

be illegal where performed.

Under Nevada's laws, brothel prostitution is prohibited entirely in certain counties.

In other counties brothel prostitution is allowed through local regulation and licensing. See NRS

244.345. In the counties where prostitution is statutorily permitted, our Supreme Court has

concluded that regulation of brothels, whether they are licensed or banned entirely, is a matter of

local concern. Kuban v. McGimsey, 96 Nev. 105, 605 P.2d 623 (1980). Brothels have been

described as a business activity which is not a nuisance per se. Thus, a county does not have to

abate brothel activity as a nuisance if the county chooses to regulate such a business. See Nye

County v. Plankington, 94 Nev. 739, 587 P.2d 421 (1978).

Reviewing the materials submitted by Sporting Houses, it appears that this

company's proposed resort hotel, including prostitution activities, will not be illegal if Nye County

regulates and licenses the operation. The enterprise would not be illegal where performed and

therefore could involve sale of securities. This would be possible even though some of the

potential investors might reside in other Nevada counties, or other states, where prostitution is

totally prohibited by law.

A similar enterprise is found within Nevada's casino gaming industry. While

casino gaming is lawful throughout Nevada, it is prohibited in several other states. See NRS ch.

463; State Gaming Control Bd. v. Breen, 99 Nev. 320, 661 P.2d 1309 (1983). Casino gaming

stocks are routinely traded by way of public offerings throughout the United States. This trading

occurs even though many of the investors live in areas of our country where such casino gaming is

totally banned by law. Nevertheless, the activity is lawful where performed and offering such

securities does not, in and of itself, amount to fraud upon the potential investors. See e.g. In re

Donald J. Trump Casino Securities Lit., 7 F.3d 357 (3rd Cir. 1993); Doumani v. Casino Control

Comm'n of New Jersey, 614 F. Supp. 1465 (D.C. N.J. 1985).

Reviewing the facts of the present case, it appears that the enterprise contemplated

by Sporting Houses does not violate NRS 90.510(1)(d). Once regulated and licensed by Nye

County, the enterprise could include prostitution activities which are legal within that county.

The final issue to be determined is whether Sporting Houses' method of business is

illegal where performed. Specifically, Nevada has criminal statutes limiting commercial

advertising of prostitution solely to the areas of the state where prostitution may be permitted. For

example, an advertisement posted within Nye County for an existing licensed brothel would not

violate the statutes. In counties where prostitution is prohibited by state statute or local ordinance,

commercial advertising of prostitution is prohibited. See NRS 201.430; NRS 201.440. As a

further example, an advertisement in a Clark County newspaper providing the telephone number of

and directions to a Nye County licensed brothel is illegal.

The question is whether the prospectus and sales literature amounts to an illegal

advertisement for the brothel which now operates in Nye County. Based upon our review of the

statutes and the Sporting Houses materials, we conclude that release of the materials to investors in

all Nevada counties would not constitute advertising of the Nye County brothel.

NRS 201.430 makes it unlawful in counties where prostitution is prohibited for any

owner, operator, agent, or employee of a house of prostitution to advertise such a house of

prostitution. Subsection (2) of that statute provides guidance on the specific content contained in a

document which would amount to the actual advertising of the brothel as follows:

Inclusion in any display, handbill or publication of the address, location or telephone

number of a house of prostitution or of identification of a means of transportation to such a

house, or of directions telling how to obtain any such information, constitutes prima facie

evidence of advertising for the purposes of this section.

NRS 201.430(2).

NRS 201.440 makes it unlawful in counties where prostitution is prohibited for any

person, company, association, or corporation to knowingly allow the above-described persons to

advertise a house of prostitution in their place of business.

Sporting Houses is not an owner, operator, agent, or employee of the existing

brothel for purposes of NRS 204.430 analysis. Since Sporting Houses has not as yet purchased the

existing brothel, it appears that the only criminal statute which needs to be examined for possible

application is NRS 201.440. In reviewing Sporting Houses' registration materials, we believe there

is no evidence demonstrating an intent by Sporting Houses to knowingly allow the existing brothel

to advertise its current business.

In our review of Sporting Houses' sales brochure, we found no mention of the

existing brothel. The existing brothel is not named, there is no telephone number for the brothel,

there are no directions on how to get to the brothel, and there is no map or other means of

identifying the location of the existing brothel contained within the sales brochure. A person

reading this document would have no knowledge that Sporting Houses intends to purchase an

existing brothel.

The "tombstone" which Sporting Houses intends to use to solicit investors informs

the potential investor that the corporation specializes in the development and management of

brothels in Nevada. That is the only mention of prostitution in the document. There is no

description of an existing brothel, its location, its telephone number or any directions thereto. A

person reading this document would have no knowledge that Sporting Houses intends to purchase

an existing brothel.

Sporting Houses' prospectus is a 35-page document. The document is intended to

provide all material facts to a potential investor about Sporting Houses' corporation and its business

plan to develop an adult fantasy resort in Nye County, Nevada. Under Nevada law, Sporting

Houses must make a full disclosure to potential investors of the subject matter of its securities

offering. If Sporting Houses made any untrue statements of material fact or omitted any statements

of material fact in its offering materials, then Sporting Houses would violate NRS 90.570.

Material information which should be required in filing materials is that information which a

reasonable investor might have considered important in making an investment decision. See

Natural Resources Defense Council, Inc. v. Securities and Exchange Commission, 389 F. Supp.

689 (1974).

On page 17 of the prospectus, Sporting Houses discloses that it intends to develop a

fantasy resort on approximately 300 acres of property located in Nye County, Nevada near Las

Vegas. On page 19 of the prospectus, the resort site is discussed. The name of the existing brothel

is mentioned on this page and investors are told that Sporting Houses intends to acquire this brothel

and surrounding acreage. The potential investor is told that this existing brothel is approximately

60 miles from Las Vegas. It appears that these facts are material to those who might invest in the

venture.

The prospectus does not provide the address of the existing brothel. The prospectus

does not provide the telephone number of the existing brothel. The prospectus does not provide

directions to the existing brothel. The prospectus does not provide a map or other means of

identifying the exact location of the existing brothel.

NRS 201.440 is a statute which involves criminal penalties for multiple offenses.

Such a criminal statute must be strictly construed so that any vague portions of the statute are not

arbitrarily imposed upon persons. See Republic Entertainment v. Clark County, 99 Nev. 811, 672

P.2d 634 (1983).

In reviewing the sales literature, "tombstone" and prospectus filed by Sporting

Houses, we find no intent to provide any information to investors other than the types of material

information they need to make an informed decision on the risks inherent in this type of a business

venture. We find no intent to knowingly advertise the existing brothel in counties where

prostitution is totally banned.

CONCLUSION

Sporting Houses' registration materials, when distributed to investors throughout

the state, would not involve an enterprise or method of business that is illegal where performed.

The materials do not advertise an existing brothel in counties where prostitution is totally banned.

Sale of securities in the enterprise proposed by Sporting Houses would be similar to sale of casino

gaming stocks in areas of the country where such gaming is prohibited.

Based upon our analysis, we find no legal basis for your office to deny Sporting

Houses' application.

Sincerely,

FRANKIE SUE DEL PAPA

Attorney General

By: ROBERT L. AUER

Senior Deputy Attorney General

__________

OPINION NO. 96-02GENERAL IMPROVEMENT DISTRICT: A county commission is the

proper entity to determine if the primary purpose of formation of a district is to finance costs of

developing private property.

February 7, 1996

The Honorable Belinda Quilici, Pershing County District Attorney, Post Office Box 299,

Lovelock, Nevada 89419

Dear Ms. Quilici:

You have provided our office with an analysis of certain statutes set forth in the

special district control law (NRS ch. 308) and the general improvement district law (NRS ch. 318).

These statutes, NRS 308.060(1)(g) and NRS 318.015(2), are intended to discourage formation of a

general improvement district for the primary purpose of financing costs of developing private

property.

You have also set forth specific facts regarding a proposed general improvement

district intended to improve electrical power transmission and distribution into a subdivided area of

your county. While we agree with the legal analysis you have provided on the legislative intent of

the statutes in question, we believe the proper body to apply the facts to these particular statutes is

the county commission.

QUESTION

Do the private developer prohibitions set forth within NRS 308.060(1)(g) and NRS

318.015(2) apply to a proposed general improvement district intended to enhance electrical power

transmission and distribution services within the district? The area to be serviced is already

subdivided and is partially developed.

ANALYSIS

You have conducted a detailed analysis of the statutory intent behind the

prohibitions described in NRS 308.060(1)(g) and NRS 318.015(2). We concur with your

interpretation of the legislature's intent regarding these statutes.

In a 1976 legislative commission study on creating, financing, and governing

general improvement districts, the commission suggested inclusion of statutes designed to prohibit

developers from using general improvement districts as a private development tool. The suggested

language was intended to address the following problem:

Throughout the subcommittee's study, the question of the use of general improvement

district law by developers was discussed. The subcommittee agreed that chapter 318 of

NRS should not be used as a device to finance the front-end costs for developers. There

was discussion about minimum criteria of population or assessed valuation before a district

could be created. This would prevent developers from using chapter 318. Such criteria

might also prevent a group of people for whom the chapter is a legitimate option from

using it. The subcommittee concluded that a more general response to this problem was

appropriate.

Therefore, the subcommittee recommends that:

The legislative declaration section of chapter 318 of NRS be amended to provide additional

guidance to county commissioners by declaring that the chapter is not intended as a device

for financing the commercial costs of developers and that chapter 308 of NRS be amended

so that the criteria for disapproval of a service plan shall include evidence that the

proposed district is primarily to pay the commercial costs of a developer.

See Bulletin No. 77-11, Legislative Commission of the Legislative Counsel Bureau of the State of

Nevada, (September 1976), at p. 31 (emphasis in original).

Based in part on the subcommittee recommendations referenced above, the

legislature enacted A.B. 163 in 1977. A.B. 163 added the statutory language now contained in

NRS 308.060(1)(g) and NRS 318.015(2). As you noted in your analysis, during the legislative

process the phrase "commercial costs of developers" was changed to "costs of developing private

property." The section guide to the general improvement district bill provided some meaning of

this reworded language as follows:

This is statutory revision to reflect the service plan requirement for a board of county

commissioners, but it also adds a paragraph to establish an additional basis for disapproval

of a proposed district, that being evidence that the district would be used to pay the costs of

developing private property. By this the subcommittee meant streets, curbs, gutters,

sidewalks, street lights, storm drainage and similar improvements. It could also mean the

costs of installing water and sewer lines, especially if the development is being advertised

in such a way that one would think the purchase price included the costs of these utilities.

Turning to the facts of the present case, you have reviewed the various aspects of

the proposed electrical power district and have concluded that the district does not have a primary

purpose of furthering development of private property for the developer of the subdivision in

question. Based upon the statutory language, we believe that the county commission is the proper

body to make this factual determination. Therefore, we offer no conclusion on this fact specific

question.

The proposed general improvement district would provide extended and improved

electrical power facilities into a residential subdivision. Provision of adequate power facilities to a

subdivision is a matter of development concern that a governing body may review before

approving subdivision maps. See NRS 278.349(3)(c). Therefore, provision of adequate power

facilities to a development could indeed be one of the costs of developing private property

contemplated under the prohibitions set forth in the special district control law and the general

improvement district law.

NRS 308.060 provides the county commission with the discretion to disapprove a

special district service plan under certain circumstances. Under subsection 1(g) of the statute,

"[e]ach such board of county commissioners may disapprove the service plan of a proposed special

district upon satisfactory evidence that . . . . (g) [t]he proposed district is being formed for the

primary purpose of financing the cost of developing private property." This language contemplates

that the county commission will receive the facts regarding the proposed district and will make a

determination as to the primary purpose of the formation of the district.

CONCLUSION

NRS 308.060(1)(g) and NRS 318.015(2) are intended to discourage formation of a

general improvement district for the primary purpose of financing the cost of developing private

property. The proper entity to take evidence on the primary purpose of formation of a general

improvement district, and to determine if the prohibitions of the statutes apply is the county

commission.

Sincerely,

FRANKIE SUE DEL PAPA

Attorney General

By: ROBERT L. AUER

Senior Deputy Attorney General

__________

OPINION NO. 96-03GUARDIANSHIP; SOCIAL WORKERS: The social worker/client

relationship is maintained through trust and with a basic understanding that boundaries limit the

relationship in order for goals to be reached. The overall purpose of social work is to restore

interaction between individuals and society and assist clients in being more productive.

Assumption of roles of power of attorney, guardian, or representative payee negates a client's

decision-making. It would thus be inappropriate for a social worker to assume any of these

positions for a client.

Carson City, March 6, 1996

Ms. Lisa Adams, Executive Secretary, Board of Examiners for Social Workers, 4600 Kietzke

Lane, A101, Reno, Nevada 89502

Dear Ms. Adams:

You have requested an Attorney General's opinion on the following issue:

QUESTION

Under what circumstances is it appropriate for a social worker to assume any type

of power of attorney, guardianship, or representative payee for a client?

ANALYSIS

You have requested this issue be addressed with reference to all levels of social

work licensure. Regardless of the level of licensure, a dual relationship would develop as a result

of any social worker assuming the role of attorney-in-fact, guardian, or representative payee for a

client. The analysis is the same for each type of social worker.

As a point of initial clarification, it must be noted that the Nevada Revised Statutes

(NRS) do not specifically prohibit any qualified person from assuming power of attorney

responsibilities or the role of guardian or representative payee. Additionally, there is nothing that

forbids a social worker from accepting any of these roles for a person who is not a client of the

social worker. The issue is problematic only when a social worker assumes any of these roles for a

client. In explaining the dilemma created when a social worker becomes responsible in any of

these roles for a client, it is paramount that the terms are defined and the law clarified in order to

support this evaluation.

I. DEFINITIONS

A conventional "power of attorney" is designed primarily to give another person the

temporary right to completely or partially manage one's financial affairs. Dennis Clifford, The

Power of Attorney Book 2 (Nolo Press 1990). The "principal" is the person who creates the power

of attorney document. Dennis Clifford, The Power of Attorney Book 2 (Nolo Press 1990). An

"attorney-in-fact" is the person who is authorized to act for the principal. Dennis Clifford, The

Power of Attorney Book 2 (Nolo Press 1990). A "durable power of attorney" gives someone

authority to make necessary financial or medical decisions if the principal becomes incapacitated.

Dennis Clifford, The Power of Attorney Book 3 (Nolo Press 1990). A "guardian" is a person

lawfully invested with the power, and charged with the duty, of taking care of the person and

managing the property and rights of another person, who for defect of age, understanding, or self-

control, is considered incapable of administering his own affairs. Black's Law Dictionary 361 (5th

ed. 1983). A "guardianship" is the office, duty, or authority of a guardian. Black's Law Dictionary

362 (5th ed. 1983) A "representative payee" is a qualified individual who provides financial

management for beneficiaries who are unable to receive and manage their own funds.

Representative Payee Program, pamphlet from Jared E. Shafer, Clark County Public

Administrator and Public Guardian (1994).

II. POWER OF ATTORNEY

A. Background

When the National Conference of Commissioners on Uniform State Laws began to

draft the Uniform Probate Code in the late 1960s, it was recognized that guardianships or

conservatorships had become increasingly cumbersome and expensive. A suggested solution was

the power of attorney which permits a contractual relationship whereby one person can act on

behalf of another without court intervention. Francis J. Collin, Jr., et al., Drafting The Durable

Power of Attorney 5 (1984).

The original drafters intended the power of attorney to apply to matters relating to

care and custody of persons, as well as management of property. By 1977, 33 states had passed

legislation to permit a power of attorney to survive the incompetency of the principal. As of

November 1983, 50 states had passed such legislation. Francis J. Collin, Jr., et al., Drafting The

Durable Power of Attorney 5 (1984).

The Nevada State Legislature approved a durable power of attorney statute on

February 21, 1983. The NRS which sets forth the law in the area of power of attorney, is NRS

111.460

and 111.470

NRS 111.460 states:

Whenever a principal designates another his attorney in fact or agent by a power of attorney in writing and the writing contains the words

"This power of attorney is not affected by disability of the principal," or "This power of attorney becomes effective upon the disability of

the principal," or similar words showing the intent of the principal that the authority conferred may be exercised notwithstanding his

disability, the authority of the attorney in fact or agent may be exercised by him as provided in the power on behalf of the principal

notwithstanding later disability or incapacity of the principal at law or later uncertainty whether the principal is dead or alive. All acts

done by the attorney in fact or agent pursuant to the power during any period of disability or incompetence or uncertainty whether the

principal is dead or alive have the same effect and inure to the benefit of and bind the principal or his guardian or heirs, devisees and

personal representative as if the principal were alive, competent and not disabled. If a guardian thereafter is appointed for the principal, the

attorney in fact or agent, during the continuance of the appointment shall account to the guardian rather than the principal. The guardian

has the same power the principal would have had if he were not disabled or incompetent, to revoke, suspend or terminate all or any part of

the power of attorney or agency.

NRS 111.470 states:

1. The death, disability or incompetence of any principal who has executed a power of attorney in writing other than a power as described

by NRS 111.460 does not revoke or terminate the agency as to the attorney in fact, agent or other person who, without actual knowledge of

the death, disability or incompetence of the principal, acts in good faith under the power of attorney or agency. Any action so taken, unless

otherwise invalid or unenforceable, binds the principal and his heirs, devisees and personal representatives.

2. An affidavit, executed by the attorney in fact or agent, stating that he did not have, at the time of doing an act pursuant to the power of

attorney, actual knowledge of the revocation or termination of the power of attorney by death, disability or incompetence is, in the absence

of a showing of fraud or bad faith, conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the

power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise

recordable.

3. This section does not alter or affect any provision for revocation or termination contained in the power of attorney.

The NRS lists no formalities which must be followed in executing any power of

attorney. As indicated by the statute, acts performed by an attorney-in-fact during any period of

uncertainty whether the principal is dead or alive, or when he is incompetent or disabled, bind the

principal or his guardian, heirs, devisees and personal representative as if the principal were alive,

competent, and not disabled. Unlike in some states, the agent need not sign an affidavit that he had

no knowledge of the principal's death when he performed the act.

B. Social Workers

In accordance with NRS 641B.030(2), "`[s]ocial work' means the application of

methods, principles and techniques of case work, group work, community organization,

administration, planning, consultation and research to assist persons, groups or communities to

enhance or restore their ability to function physically, socially and economically."

NRS 641B.030(3) states "`[c]linical social work' means the application of methods,

principles and techniques of case work, group work, community organization, administration,

planning, consultation, research and psychotherapeutic methods and techniques to persons,

families and groups to help in the diagnosis and treatment of mental and emotional conditions."

Another definition, as adopted by the National Association of Social Workers, is as

follows:

Social work is the professional activity of helping individuals, groups, or communities to

enhance or restore their capacity for social functioning and to create societal conditions

favorable to their goals.

. . . .

The purpose of social work is to promote or restore a mutually beneficial interaction

between individuals and society in order to improve the quality of life for everyone. Social

workers hold the following beliefs:

The environment (social, physical, organizational) should provide the opportunity and

resources for the maximum realization of the potential and aspiration of all individuals, and

should provide for their common human needs and for the alleviation of distress and

suffering.

Individuals should contribute as effectively as they can to their own well-being and to the

social welfare of others in their immediate environment as well as to the collective society.

Transactions between individuals and others in their environment should enhance the

dignity, individuality, and self-determination of everyone. People should be treated

humanely and with justice.

A client may be an individual, a family, a group, a community, or an organization.

Dean H. Hepworth and JoAnn Larsen, Direct Social Work Practice, Theory & Skills 4-5 (3rd ed.

1990).

In interviewing various clinical social workers, it became apparent the very essence

of social work is to help people become more productive by locating and coordinating resources.

If a client is in need of a home, the proper course of conduct is to give the client a list of agencies

to assist in locating affordable housing. It is not be appropriate to have the client move in with the

social worker, as the relationship of landlord and social worker do not further the same goals.

If a client is lonely and in need of affection, it would be improper for a social

worker to date that client or establish a sexual relationship with that client to meet this basic need.

Referring the client to social groups which would encourage interaction with other people would

be appropriate.

Landlord/social worker as well as lover/social worker are dual relationships.

Establishing a dual relationship with a client is one of the fundamental ethical violations taught to

social work students nationwide. Due to the fact that a dual relationship signifies dual goals, the

client will ultimately suffer if any of the goals are inconsistent.

Likewise, if a person is in need of assistance with financial or health care

decisions, the proper course of conduct is to help the client locate a different person to accept the

role as attorney-in-fact. To assume the responsibility as attorney-in-fact, the social worker would

definitely create a dual relationship with the client since the power of attorney gives an attorney-in-

fact authority to make financial decisions, often without consultation of the client. As the goal of

the social worker is to assist in making clients more productive, negating the clients decision-

making authority is inconsistent with the social worker's primary goal.

Durable powers of attorney often confer discretion of affairs of incompetent people

upon the attorney-in-fact. As previously indicated, the primary goal of social workers is to assist

clients in contacting resources to improve their ability to function in society. Managing the

personal and financial concerns of a person who is not capable in any regard of functioning in

society will not only create a dual relationship, but may be beyond the social worker's scope of

practice and training as well.

NAC 641B.200(1) specifically states:

The status of a licensed social worker must not be used to support any claim, promise or

guarantee of successful service, nor may the license be used to imply that he has

competence in another profession. The licensee shall not misrepresent his own

professional qualifications, affiliations and licenses, nor those of the institutions and

organizations with which he is associated. If he holds more than one occupational license,

he shall disclose to his client orally and in writing which of the licenses apply to the service

he is rendering to that client.

This section of the administrative code clearly prohibits a social worker from using

his license to imply that he has competence in another profession. Taking on the obligation of

handling the financial and personal dealings of others implies a knowledge outside the boundaries

for which social workers are trained.

Additionally, NAC 641B.200(1) mandates disclosure of more than one

occupational license and which license applies to the service the social worker is rendering. This

denotes that a social worker must specify which service is provided in order to avoid a dual

relationship.

NAC 641B.205(11) states:

A licensee who is serving a client who is psychologically or financially dependent upon the licensee shall not influence or attempt to

influence the client in any manner which will reasonably result in the licensee deriving benefits of an unprofessional nature, including

sexual activity from the client. The board will presume that the client is dependent upon the licensee if the sexual activities occur or other

benefits are received during the time the client is receiving professional service from the licensee or within six (6) months after termination

of those services.

Besides the provision of unfettered discretion in handling another person's affairs, a

power of attorney is usually a relationship which is compensated for by the principal. NAC

641B.200(3) states "[a] licensee shall not use his relationship with a client to further his own

personal, religious, political or business interests."

Clearly, receiving payment for a service as attorney-in-fact is a furtherance of one's

business interest. Further, if the original relationship was that of social worker/client, then the

compensated business relationship of attorney-in-fact and social worker was a result of a

client/social worker relationship which is a direct violation of this regulation.

While the statutes governing social work do not specifically state that a social

worker cannot become an attorney-in-fact for a client, NRS 641B.400 states professional

incompetence as grounds for discipline. Professional incompetence is defined in NAC 641B.225

and will be interpreted by the board to mean a lack of knowledge, skill, or ability in discharging a

professional obligation and includes malpractice and gross negligence.

Entering into the dual relationship which is fraught with possible conflicts of

interest could cause, or in and of itself be considered, below standard performance.

Nevada case law holds that statutes should be construed to be given a reasonable

construction and a common sense meaning, avoiding absurd results. See Holiday v. McMullen,

104 Nev. 294, 756 P.2d 1179 (1988); Las Vegas Sun, Inv. v. Eighth Judicial District Court, 104

Nev. 508, 761 P.2d 849 (1988); State Dep't of Motor Vehicles & Public Safety v. Brown, 104 Nev.

524, 762 P.2d 882 (1988). The Nevada Supreme Court has also indicated statutes will not be

construed to produce an unreasonable result when another construction will produce a reasonable

result. See Breen v. Caesars Palace, 102 Nev. 79, 82, 715 P.2d 1070 (1986). In the spirit of

consistency with the goals of social work, it would not be reasonable to interpret a statute to allow

assumption of a role which deviates from the main objectives of social work practice.

III. GUARDIANSHIP

A guardianship is a legal relationship under which one person (a guardian) has the

legal right and duty to care for another (a ward) and his or her property. A guardianship is

established because of the ward's inability legally to act independently.

The difference between a guardian and a power of attorney is that a guardian is

court appointed and the power of attorney is a contractual relationship without court intervention

between the attorney-in-fact and the principal. According to Nevada law, the relationship of

attorney-in-fact and principal is effected if, subsequent to the power of attorney relationship, a

guardian is appointed. In this situation, the attorney-in-fact or agent, during continuance of the

appointment, shall account to the guardian rather than the principal. The guardian has the same

power the principal would have if he or she were not disabled or incompetent, to revoke, suspend

or terminate all or any part of the power of attorney or agency. See n.1.

Like the attorney-in-fact, the guardian establishes a role which may be inconsistent,

if not on a collision course, with the goals and skills of a social worker. A guardian makes all

decisions affecting the ward's financial, personal, and medical situation. Since the social worker is

primarily motivated by theories of accessing resources, stepping in as a guardian and deciding all

crucial matters of a person's life is blatantly inconsistent with the actual purpose of a social worker.

While directing a client to the public guardian would be appropriate, petitioning a court to be

appointed as a guardian would be improper for a social worker.

For similar reasons discussed above, accepting the duties of guardian for a client

would be considered a violation of NAC ch. 641B. As noted, the dual relationship and implication

of skills outside boundaries of a social worker violate NAC 641B.200(1). The fact that guardians

are compensated for services, creating a business opportunity, denotes a violation of NAC

641B.200(3) which forbids a use of a client relationship in this manner. Lastly, the basic

impropriety of a social worker assuming a guardianship for a client suggests professional

incompetence in violation of NAC 641B.225.

IV. REPRESENTATIVE PAYEE

A representative payee is one who is given power to receive payment from another

party on behalf of a principal. More specifically, a representative payee is a qualified individual

who provides financial management for beneficiaries who are unable to receive and manage their

own funds. The representative payee's authority to handle funds is granted by the Social Security

Administration or any other benefit source that will grant payeeship. Many public guardians in

Nevada offer a representative payeeship program for social security beneficiaries and private

pensioners who require assistance to manage their financial affairs.

People who need a representative payee include adults who are unable to manage

their finances due to physical or mental limitations, individuals who receive payment due to

disabilities related to drug addiction or alcoholism, and those who experience difficulty utilizing

the monthly benefit checks to meet their daily needs.

Clients are referred to the representative payee program by local social service and

mental health agencies, homeless shelters, housing projects, family members, or the beneficiaries

themselves. Anyone can make a referral.

Duties of a representative payee confer such obligations as financial management

and acceptance of funds on behalf of another. For the same rationale previously discussed,

accepting this position for a client would be improper and a possible violation of the same sections

of NAC 641B. While it would not be appropriate for a social worker to assume the role of

representative payee for a client, it would be appropriate for a social worker to refer a client to a

representative payee program.

CONCLUSION

As with most professional relationships, the social worker/client relationship is

maintained through trust. The client in this relationship is vulnerable and dependant upon the

expertise and position of the social worker. It is therefore the social worker who is responsible for

establishing boundaries of the association. See At Personal Risk, Boundary Violation in

Professional-Client Relationships, Marilyn R. Peterson (1992).

Just as a social worker should not become sexually involved with a client or

become the client's landlord, accepting the responsibilities as attorney-in-fact, guardian, or

representative payee creates a similar conflict. In order to preserve the integrity of the profession,

it is paramount that every level of social worker avoid assuming roles which conflict with the basic

foundation of social work even though the best intentions support the decision to do so.

Sincerely,

FRANKIE SUE DEL PAPA

This opinion is designed as a guideline to discourage individual social workers from developing dual relationships with clients. It is not intended

to hinder functioning of the public agencies such as county public guardians, which hire social workers and provide representative payee and guardian

programs within the same agency.

Attorney General

By: RONDA CLIFTON

Deputy Attorney General

__________

OPINION NO. 96-04COUNTIES; PUBLIC OFFICERS: A county commission may authorize

county officers, as enumerated in statute, to operate branch offices away from the county seat.

Carson City, March 6, 1996

The Honorable Stewart L. Bell, Clark County District Attorney, 200 South Third Street, Post

Office Box 552211, Las Vegas, Nevada 89155-2211

Dear Mr. Bell:

You have posed a question regarding whether a particular county officer, the county

assessor, has the authority to open a branch office away from the county seat. The question is set

forth below.

QUESTION

In light of Nev. Const. art. 15, § 7, may the county assessor operate a branch office

within the county even though the branch office is not located at the county seat?

ANALYSIS

Apparently, the legislature interprets the constitutional provision set forth above as

including the flexibility for county officers to operate branch offices away from the county seat.

The legislature enacted S.B. 188 in 1989. S.B. 188 specifically authorizes

operation of branch offices for certain enumerated county officers. The county assessor is included

within the group of county officers who may operate such branch offices as long as they maintain

an office at the county seat.

S.B. 188 amended the language of NRS 245.040(3) as follows:

The board of county commissioners may authorize a county officer to rent, equip and

operate, at public expense, one or more branch offices in the county. The branch office

must be kept open for the transaction of public business on the days and during the hours

specified in subsections 1 and 2. The provisions of this subsection do not preempt any

other statutory provisions which require certain duties to be performed at the county seat.

We must assume the legislature was aware of Nev. Const. art. 15, § 7, when it enacted the statutory

amendment to NRS 245.040 described above. Accordingly, we believe the statute must be

construed as being in harmony with the constitutional section. State ex rel. Williams v. Fogus, 19

Nev. 247, 249, 9 P. 123 (1885).

CONCLUSION

Nev. Const. art. 15, § 7, states: "All county Officers shall hold their Offices at the County seat of their respective Counties."

The county commission may, pursuant to NRS 245.040(3), authorize certain

enumerated county officers, including the county assessor, to operate branch offices away from the

county seat. We find the statute to be in harmony with Nev. Const. art. 15, § 7. In light of the

statutory change, Op. Nev. Att'y Gen. No. 155 (March 19, 1956) is no longer applicable.

FRANKIE SUE DEL PAPA

Attorney General

By: ROBERT L. AUER

Senior Deputy Attorney General

__________

OPINION NO. 96-05REFUND; BAIL; FORFEITURES; TREASURER: The State Board of

Examiners must approve a request for refund of bail bond forfeitures which are paid into the

state treasury pursuant to NRS 178.518(2) when the request is made pursuant to a final

judgment entered by a court more than one year from the date of the forfeiture's deposit into the

treasury.

Carson City, March 13, 1996

Mr. John P. Comeaux, Director, Department of Administration, Capitol Complex, Carson City,

Nevada 89710

Dear Mr. Comeaux:

You have requested our interpretation as to the effect NRS 353.115 may have with

reference to certain requests for refunds of bond forfeitures.

QUESTION

May the State Board of Examiners (Board) approve a request for refund of bond

forfeitures which are paid into the state treasury pursuant to NRS 178.518 when the request for

refund is made pursuant to a final judgment entered by a court more than one year after the date of

the forfeiture's deposit into the treasury?

ANALYSIS

NRS 178.518 provides in relevant part: "Money collected pursuant to NRS

178.506 to 178.516, inclusive, which was collected: . . . . (2) From a person who was charged

with a gross misdemeanor or a felony must be paid over to the state treasurer for deposit in the

fund for the compensation of victims of crime."

A refund of money from the state treasury is subject to approval by the Board when

the Board is "satisfied with the correctness and justice" of the claim. NRS 353.120(1). A statute

which imposes conditions on refunds from the state treasury is NRS 353.115, which provides:

A claim for refund of money deposited in the state treasury or paid to a state agency or

officer shall be made within 1 year from the date of such deposit or payment unless:

1. Payment was made under protest; or

2. The statute applicable to claims against or refunds by a particular state agency or officer

prescribes a different period.

The clear purpose of the statute is to provide for finality of claims against the state

treasury. Statutes of limitation are common in Nevada Revised Statutes. See chapter 11 of NRS.

It would be easy to end our inquiry here by holding that NRS 353.115 precludes payment of bail

bond forfeitures which were deposited more than a year ago, but you have provided materials

which may argue against that result.

The provisions of NRS 178.506-.516 address forfeiture of bail bonds due to breach

of a bond condition by a defendant or failure of a defendant to make a court appearance. NRS

178.512 sets forth certain conditions under which a court shall set aside a forfeiture and order

return of the forfeited money to the surety. The statute does not specifically address any period of

limitation within which a surety must apply for a return of a forfeiture. However, despite the

legislative restrictions placed upon courts, the Nevada Supreme Court has held: "The decision to

grant exoneration or discharge of a bond rests with the discretion of the trial judge, as long as the

sureties do not aid in the defendant's absence." State v. American Bankers Ins., 106 Nev. 880, 883,

802 P. 2d 1276 (1990)(citing NRS 178.512).

You have provided us with backup materials including several court orders which

were forwarded to the State Controller from the Clark County Department of Finance (County) in

support of the County's requests for refund of forfeitures. These orders show the State of Nevada

as a party in the underlying criminal cases. While these orders were issued in late 1995, some of

them order refund of bail which was forfeited to the state treasury as long ago as 1989. There are

several possible reasons for such a delay between a bond forfeiture and an order setting aside the

forfeiture. We are advised that it is a common occurrence for a defendant to "skip" to a location

outside Nevada to avoid a court appearance, thereby failing to appear and causing forfeiture of

bail. It may be years before the defendant is either extradited back to Nevada or returns voluntarily

and is arrested on some other crime, at which point the surety is notified of the defendant's

presence in the state and has a right to arrest the defendant for the purpose of surrendering the

defendant to the court. NRS 178.526. In three of the examples which you supplied, we are

advised that it was the Gaming Control Board who requested that the district attorney move to

quash outstanding bench warrants on the defendants and to dismiss the case, reportedly after a

year-long investigation failed to produce evidence sufficient to support a conviction. In any event,

actions seeking the setting aside of forfeitures are often filed and heard more than one year after

bail has been forfeited to the state treasury.

At proceedings for setting aside bail forfeitures, the state is represented by the

district attorney. It is at this time that any defense of the state treasury based on NRS 353.115

should be raised. The former and current deputy district attorneys which we have discussed the

issue with admit to not being familiar with provisions of NRS 353.115 and therefore to not having

raised the statute in court. Even if properly raised and argued, it is not clear that every court would

be convinced by the legal argument that NRS 353.115 prohibits such a refund from the state

treasury in light of the standards for obtaining a refund of bail forfeiture set forth in NRS 178.512

and especially in light of the fact that the statute itself does not have any specific period of

limitation within which an action to set aside a forfeiture must be filed and in light of the broad

discretion granted to trial judges to discharge a bond in American Bankers, Inc. Absent legislative

clarification as to the proper balance between the competing provisions of chapters 178 and 353 of

NRS, there is a real potential for conflicting decisions in courts of first impression and in courts of

appeal. Further, in many cases the relatively small amounts at issue would probably not warrant a

serious appellate effort by the district attorney. Accordingly, it is our suggestion that the most

feasible long-term solution to this issue is a legislative amendment to relevant provisions of chapter

178 of NRS to clarify that actions to set aside bond forfeitures which have been deposited into the

state treasury either are, or are not, subject to the one-year refund limitation provision of NRS

353.115.

In the several examples of justice court and district court judgments which you have

provided, all have apparently been received by the State Controller after the expiration of time for

appeal. See Justices' Courts' Rules of Civil Procedure 72B(a); State v. Eighth Judicial District

Court, 97 Nev. 34, 623 P. 2d 976 (1981); Nev. R. App. P. 4(a). Accordingly, the state is bound by

these final judgments and must pay over the refunds from the state treasury as ordered. The Board

must acknowledge and comply with these unappealed orders by allowing refunds of forfeitures

ordered.

CONCLUSION

The State Board of Examiners must approve a request for refund of bail bond

forfeitures which are paid into the state treasury pursuant to NRS 178.518(2) when the request is

made pursuant to a final judgment entered by a court more than one year from the date of the

forfeiture's deposit into the treasury. We suggest that the issue of the legislature's intent as to the

scope of protection of NRS 353.115 be presented to the 1997 Legislature for clarification.

FRANKIE SUE DEL PAPA

Attorney General

By: JAMES T. SPENCER

Senior Deputy Attorney General

__________

OPINION NO. 96-06AGRICULTURE, DIVISION OF; BRAND INSPECTORS;

VETERINARIANS: In order for an animal to be impounded on agricultural land, the sheriff or his

designee, a licensed veterinarian, and the district brand inspector or his designee must concur that

the animal is deprived of food or water and they must supervise removal of that animal.

Carson City, March 15, 1996

Mr. Steve Mahoney, Chief, Bureau of Livestock Identification, Division of Agriculture, 350

Capitol Hill Avenue, Reno, Nevada 89502

Dear Mr. Mahoney:

You have written our office to request an opinion on the following:

QUESTION

Does NRS 574.055(6) require concurrence and supervision of a veterinarian and a

brand inspector to impound animals on agricultural land?

ANALYSIS

NRS 574.055 deals generally with procedures for impounding animals that are

being treated cruelly. Subsection (6) specifically addresses the procedure for impounding animals

found on land being employed for an agricultural use. NRS 574.055(6) states in its entirety:

This section does not apply to any animal which is located on land being employed for an

agricultural use as defined in NRS 361A.030 unless the owner of the animal or the person

charged with the care of the animal is in violation of subsection 2 of NRS 574.100 and the

impoundment is accomplished with the concurrence and supervision of the sheriff or his

designee, a licensed veterinarian and the district brand inspector or his designee. In such a

case, the sheriff shall direct that the impoundment occur no later than 48 hours after the

veterinarian determines that a violation of subsection 2 of NRS 574.100 exists.

A look at the legislative history of this subsection reveals that prior to 1989 the subsection stated

simply "[t]his section does not apply to any animal which is located on land being employed for an

agricultural use as defined in NRS 361A.030." Animals on agricultural land were exempt from

being impounded for cruel treatment under NRS 574.055.

Testimony presented before the Assembly Committee on Natural Resources,

Agriculture & Mining on March 6, 1989, reveals that the subsection was amended by Assembly

Bill No. 245 (A.B. 245) in order that there be some recourse for impounding animals being treated

cruelly on agricultural land. See, Minutes of March 6, 1989, hearing on A.B. 245 before the

Assembly Committee on Natural Resources, Agriculture & Mining at 4. The minutes for the

committee meeting provide a summary of Assemblyman Robert E. Gaston's comments on A.B.

245. They state:

[T]here had been egregious events which had taken place relative to animals. Most cases

of neglect or abuse fall withing [sic] statutory regulation. However, animals on agricultural

property were exempt from being impounded in the same manner as domestic animals.

Those animals in a situation of abuse or neglect may not be removed from the property for

their own protection.

Id. Assemblyman Gaston went on to detail accounts of two extreme cases of animals being starved

on agricultural land.

During further discussions of AB 245, concerns were raised over animals being

impounded on agricultural land due to misconceptions of routine acts of animal husbandry.

Assemblyman John Carpenter suggested that the amendment could be limited by reference to NRS

574.100. NRS 574.100 states: "Except in any case involving a willful or malicious act for which a

greater penalty is provided by NRS 206.150, a person who: . . . . 2. Deprives any animal of

necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink . . .

is guilty of a misdemeanor.

Assemblyman Carpenter suggested that if AB 245 was amended solely to address

the issue of starvation, that the livestock industry would accept it. See, Minutes of March 6, 1989,

hearing on A.B. 245 before the Assembly Committee on Natural Resources, Agriculture & Mining

at 7.

The committee continued its discussion of A.B. 245 on March 13, 1989. The

discussion concerned ways of limiting the circumstances under which animals on agricultural land

could be impounded. Mr. Dallas Byington of the Nevada Cattleman's Association (NCA) went on

record as being opposed to A.B. 245. Assemblyman Carpenter proposed an amendment. He

suggested "the involvement of the local sheriff, a licensed veterinarian and the brand inspector

would provide the authority and expertise necessary to evaluate and determine if animals should be

impounded and charges should be filed." See, Minutes of March 6, 1989, hearing on A.B. 245

before the Assembly Committee on Natural Resources, Agriculture & Mining at 4. With these

additions, the NCA indicated that they would not oppose the bill.

The purpose of A.B. 245 then was to remove the exemption from impoundment for

animals on agricultural property. At the same time, A.B. 245 limited the circumstances under

which animals on agricultural property could be impounded. They could only be impounded if:

(1) the owner was in violation of NRS 574.100(2), that is the animal was being deprived of food or

water; and (2) the impoundment was accomplished with the concurrence and supervision of the

sheriff or his designee, a licensed veterinarian, and the district brand inspector or his designee.

CONCLUSION

NRS 574.055(6) requires that, in order for an animal to be impounded on

agricultural land, the sheriff or his designee, a licensed veterinarian, and the district brand inspector

or his designee must concur that the animal is being deprived of food or water and must supervise

removal of that animal.

FRANKIE SUE DEL PAPA

Attorney General

By: GINA SESSION

Deputy Attorney General

__________

OPINION NO. 96-07VOLUNTEERS; FIREMEN; OCCUPATIONAL SAFETY & HEALTH:

The fact that volunteer firefighters are employees for purposes of workers compensation coverage

is too tenuous to be an indirect gain to achieve jurisdiction of the Division of Industrial Relations

for purposes of OSHA regulations. However, those volunteer firefighters who participate in the

Public Employees Retirement System, with contributions paid on their behalf, are receiving

sufficient gain to put their workplace within the jurisdiction of the Division.

Carson City, March 27, 1996

Mr. Ron Swirczek, Administrator, Department of Business & Industry, Division of Industrial

Relations, Capitol Complex, Carson City, Nevada 89710

Dear Mr. Swirczek:

You have asked the opinion of the Attorney General related to whether volunteer

firefighters are within the ambit of OSHA regulations which are administered through the Division

of Industrial Relations ("Division").

QUESTION ONE

Does the fact that volunteer firefighters are defined by NRS 616.070 as

"employees" for the purposes of workers compensation insurance constitute direct or indirect gain

or profit such that the volunteer firefighters are also within the jurisdiction of the Division for

purposes of OSHA regulations?

ANALYSIS

Chapter 616 of the Nevada Revised Statutes is known as the Nevada Industrial

Insurance Act. NRS 616.010. Volunteer firefighters are employees for purposes of industrial

insurance. NRS 616.070. It has long been the interpretation of the Division that being an

employee for purposes of chapter 616 does not, of itself, bring volunteer firefighters within the

ambit of chapter 618, which is known as the Nevada Occupational Safety and Health Act. NRS

618.005.

The purpose of chapter 618 is to provide safe and healthful working conditions for

every employee by establishing and enforcing regulations, providing for education and training of

employees and establishing reporting procedures for job-related accidents and illnesses. NRS

618.015. An employee is defined as "every person who is required, permitted or directed by any

employer to engaged in any employment, or to go to work or be at any time in any place of

employment." NRS 681.085 (emphasis added). An employer includes any unit of local

government. NRS 618.095.

The Division has authority over working conditions in all places of employment

except conditions that may exist in household domestic service, that may exist in motor vehicles

operating on public highways, or that are regulated by certain federal acts not relevant to the

question before us. NRS 618.315.

"Place of employment" means any place whether indoors or out or elsewhere, and the

premises appurtenant thereto, where, either temporarily or permanently, any industry, trade,

work or business is carried on, including all construction work, and where any person is

directly or indirectly employed by another for direct or indirect gain or profit. [Emphasis

added.]

NRS 618.155.

Our analysis examines whether there is any direct or indirect gain or profit realized

by volunteer firefighters. We believe that coverage under workers compensation is too tenuous to

be a gain or profit. At best, injured firefighters are simply made whole through benefits of the

coverage should they become injured. In this regard, we agree with the long-standing

interpretation of the Division.

However, volunteer firefighters may be participants in the Public Employees

Retirement System ("PERS"). That would be a direct or indirect gain. Volunteer fire departments

are organized pursuant to NRS 474.470(3).

The volunteers of a regularly organized and recognized fire department may, by the joint

application of a majority of those volunteers addressed to the board, become members of

the system. A volunteer fireman who joins a fire department of which all the volunteers

have become members of the system becomes a member of the system. The volunteers of

a participating fire department may withdraw from the system by the joint application of a

majority of those volunteers addressed to the board.

NRS 286.367(1).

We are advised there are fire departments with participation of their volunteer

firefighters in PERS. Where they do participate, the contribution is paid by the local county

government on their behalf. Those volunteer firefighters who participate in PERS, with

contributions to PERS paid on their behalf, are receiving an indirect or direct gain. In addition, if a

volunteer firefighter receives compensation for his or her services in whole or in part, the

compensation would be an indirect or direct gain.

We note that the language of NRS 618.155 is very broad. It refers to a place "where

any person is directly or indirectly employed by another for direct or indirect gain or profit."

[Emphasis added.] Thus, if a volunteer fire department employed with compensation one person,

for example the fire chief, and all the other firefighters were volunteer, the criteria of the definition

would be met and jurisdiction of the Division would attach to all the firefighters. Similarly, in

those places where volunteer firefighters are attached to a regular fire district, presence of paid

In some cases, a fire protection district may make a payment to the nonprofit organization of volunteer firefighters who assist at fires, but there is

no payment to the firefighters.

firefighters is sufficient for Division jurisdiction to attach to the place of employment and thus,

encompass the volunteers as well.

CONCLUSION

In order to be within the jurisdiction of the Division of Industrial Relations for

purposes of OSHA regulations, there must be an indirect or direct gain for the firefighter, or any

person, in that place of employment. The fact that volunteer firefighters are employees for

purposes of workers compensation coverage is too tenuous to be an indirect gain to achieve

jurisdiction of the Division of Industrial Relations for purposes of OSHA regulations. However,

those volunteer firefighters who participate in PERS, with contributions paid on their behalf, are

receiving sufficient gain to put their workplace within the jurisdiction of the Division.

FRANKIE SUE DEL PAPA

Attorney General

By: MELANIE MEEHAN CROSSLEY

Deputy Attorney General

__________

OPINION NO. 96-08PUBLIC HEALTH; PUBLIC SAFETY;THERAPISTS: Emergency medical

technicians were intended to be exempt from certification requirements of NRS chapter 640B

which requires licensure of respiratory therapists.

Carson City, April 4, 1996

Ms. Yvonne Sylva, Administrator, Health Division, 505 East King Street, Kinkead Building,

Room 201, Carson City, Nevada 89710

Dear Ms. Sylva:

You have requested a legal opinion regarding impact of Senate Bill (S.B.) 72 of the

1995 Legislative Session upon emergency medical technicians (EMTs).

QUESTION

Are EMTs exempted from the respiratory therapist licensure requirement enacted

by S.B. 72, now found in NRS chapter 640B, since EMTs administer oxygen and perform

cardiopulmonary resuscitation as part of their scope of practice?

ANALYSIS

NRS 640B.030 defines "practice of respiratory care" which provides in pertinent

part: "`Practice of respiratory care' includes: . . . . 5. Cardiopulmonary resuscitation and

maintenance of natural airways and the insertion and maintenance of artificial airways . . . ."

Those engaged in practice of respiratory care are required to be certified as a practitioner of

respiratory care pursuant to NRS chapter 640B. Other licensed practitioners of the healing arts are

exempt from this requirement. NRS 640B.080 provides: "This chapter does not apply to: . . . . 6.

Other practitioners of the healing arts who are licensed to practice pursuant to chapters 630 to 640,

inclusive, of NRS, when they are performing acts authorized pursuant to those chapters."

Emergency medical technicians are licensed pursuant to NRS chapter 450B. Basic

emergency care is defined in NRS 450B.1905(2) as including: "(a) Procedures to establish and

maintain an open airway in a patient; (b) Administration of oxygen, both manually and by a device

which uses intermittent positive pressure; (c) Cardiopulmonary resuscitation . . . ."

The question therefore becomes whether an EMT is required to be certified as a

practitioner of respiratory care before he can perform cardiopulmonary resuscitation or other

procedures designed to maintain an airway.

There are numerous previous Attorney General opinions on the subject of statutory

construction in addition to a plethora of cases delving into the intent of the legislature in response

to challenges to various statutes. In State Dep't of Mtr. Vehicles v. Lovett., 110 Nev. 473, 874 P.2d

1247 (1994), the court stated that statutes are generally construed with a view of promoting, rather

than defeating, the legislative policy behind them. When a statute is subject to more than one

interpretation, it should be construed in line with what reason and public policy would indicate the

legislature intended. The leading rule is to ascertain the intent in enacting the statute and the

ascertained intent will prevail over the literal sense. See Roberts v. State, Univ. of Nevada System,

104 Nev. 33, 752 P.2d 221 (1988).

It is also a well established premise that interpretation of a statute should avoid an

absurd, unreasonable or mischievous result. See Holliday v. McMullen, 104 Nev. 294, 756 P.2d

1179 (1988), Las Vegas Sun, Inc., v. Eighth Judicial Dist. Court, 104 Nev. 508, 761 P.2d 849

(1988). The absurd result in interpreting NRS chapter 640B to require EMTs to be licensed and/or

certified under its provisions would be to prevent EMTs from practicing emergency care without

such certification and to negate or supplant the requirements found in NRS chapter 450B. If the

consequence of an interpretation is to render another statute ineffective, the interpretation is subject

to scrutiny. See Nevada Tax Comm'n v. Bernhard, 100 Nev. 348, 683 P.2d 21 (1984). If NRS

chapter 640B is interpreted to require licensure and certification for EMTs pursuant to its terms,

the statutory requirements found at NRS chapter 450B, which were intended to govern EMTs, are

rendered ineffective, duplicative, and unreasonably burdensome. NRS chapter 640B must be

construed to give effect to all provisions of the statutes. See Op. Nev. Att'y Gen. No. 95-11 (June

27, 1995).

There is an obligation to render statutes compatible. State v. Rosenthal, 93 Nev. 36,

45, 559 P.2d 830 (1977). The Nevada Supreme Court mandated that inconsistent parts of acts on

the same subject should be harmonized when possible to avoid the construction which would

create an inconsistent position. See State ex rel. Allen v. Brodigan, 34 Nev. 486, 492, 125 P. 699

(1911). When a mistake or error in the use of words is not calculated to mislead as to the subject

of an act, that mistake or error is to be regarded as a clerical error and when certain words are

necessary to give an act complete sense, the court will read those words into the act. See State ex

rel. Bartlett v. Brodigan, 37 Nev. 245, 250, 141 P. 988 (1914); State ex rel. Drury v. Hallock, 19

Nev. 384, 389, 12 P. 832 (1887). Additionally, in Sanson Inv. Co. v. 268 Ltd., 106 Nev. 429, 432,

795 P.2d 493 (1990) the court stated:

If the language [of a statute] is capable of two constructions, one of which is consistent . .

. with the evident object of the legislature in passing the law, that construction must be

adopted which harmonizes with the intention. Recanzone v. Nevada Tax Commission, 92

Nev. 302, 305, 550 P.2d 401, 403 (1976) (quoting State of Nevada v. Cal. M. Co., 13 Nev.

203, 217 (1878)).

Finally, case law provides that specific statutory provisions will govern over

general provisions. See McIntosh v. Streight, 110 Nev. 1148, 881 P.2d 1337 (1994). NRS chapter

640B provides that respiratory care givers who administer oxygen and CPR, among other

procedures, must be licensed under its provisions and exempts other professions required to be

licensed under specific statutory requirements. See NRS 640B.080(6). The statute fails to exempt

EMTs by omission of reference to NRS 450B. NRS 450B is the more specific statutory language

which provides for licensing requirements of EMTs.

The legislative intent contained in the record for NRS chapter 640B gives guidance

as to the respiratory care givers for whom licensure and certification were sought. It reveals in

numerous instances that EMTs were not considered and therefore not addressed. It is clear from

the legislative minutes and exhibits that only respiratory care givers, i.e., therapists, were

considered in need of regulation and virtually all dialogue regarding licensing or certification of

respiratory care givers focused on unlicensed, uncertified personnel who administer respiratory

care. Several statements throughout the process indicate that "other healing arts" are regulated and

therefore not included in this proposed chapter. Specific references follow:

· "Other licensed practitioners of the healing arts and the domestic

administration of family remedies are also exempt." Nevada Legislature Sixty-Eighth

Session 1995, Summary of Legislation, Prepared by Research Division Legislative

Counsel Bureau, at 2.

· "Respiratory care is the only allied health care profession involved in life-

saving and life-sustaining measures that is not now licensed by the State of Nevada."

"Currently there is no formal training or licensure requirement to practice respiratory

care in the state of Nevada." "Other qualified, licensed health care personnel are not

prevented from providing respiratory care." Minutes of February 23, 1995, hearing

on S.B. 72 before the Senate Committee on Commerce and Labor, Exhibit G, pages 3,

4, and 6.

· "Mr. Logan said the amended bill stated health care providers, physicians,

nurses, or anyone else whose scope of practice included respiratory care were not

prevented from doing so." Minutes of May 26, 1995, hearing on S.B. 72 before the

Assembly Committee on Commerce at 13.

· Dr. Jackson, a practicing pulmonary and critical care physician in northern

Nevada stated, in reference to the purpose of S.B. 72, "[i]t only said if one held

oneself out as a Respiratory Therapist, certain minimum standards had to be met."

Minutes of May 26, 1995, hearing on S.B. 72 before the Assembly Committee on

Commerce at 16.

These discussions were held in the attempt to refine language of the bill. An effort

was made to include all persons who provide respiratory care but are not otherwise licensed or

certified. Exemptions were provided for at Sec. 7(6), now found at NRS 640B.080 which states:

"This chapter does not apply to: . . . . 6. Other practitioners of the healing arts who are licensed to

practice pursuant to chapters 630 to 640, inclusive, of NRS, when they are performing acts

authorized pursuant to those chapters."

As stated throughout the legislative discussion on S.B. 72, it was the desire to

establish minimum requirements for competency of respiratory care givers which initiated

introduction of this bill. It appears to be an inadvertent omission that EMTs, who are licensed and

regulated under NRS chapter 450B, were not included in the exemptions. They are clearly not

respiratory therapists, they are clearly required to be trained, licensed, and regulated to perform

certain duties which involve respiratory care within the scope of their practice. Training for EMTs

meets or exceeds the criteria for minimum training and includes training in administration of

oxygen, both manually and by a device which uses intermittent positive pressure, and

cardiopulmonary resuscitation. NRS 450B.1905(2). It appears clear that EMTs are one of the

licensees whose scope of practice includes limited respiratory care which the legislature intended

to be exempt from provisions of NRS chapter 640B.

CONCLUSION

It is this office's opinion that EMTs were intended to be exempt from certification

requirements of NRS chapter 640B. It appears clear from the legislative history that the legislature

intended respiratory caregivers or therapists, who were previously unregulated by any statutes, be

certified to protect public health and safety. All other licensed practitioners were exempted from

certification under NRS chapter 640B.

FRANKIE SUE DEL PAPA

Attorney General

By: NANCY FORD ANGRES

Chief Deputy Attorney General

__________

OPINION NO. 96-09COPYRIGHT; PUBLIC RECORDS;ENVIRONMENTAL PROTECTION:

Data in environmental consultant report is not subject to copyright though a compilation that

includes data might be if it meets criteria. Protected material can be copied without infringement if

use is limited in circumstances described in the fair use doctrine. Absence of copyright mark does

not invalidate copyright under certain conditions.

Carson City, April 9, 1996

Mr. Lew Dodgion, Administrator, Department of Conservation and Natural Resources, Division of

Environmental Protection, Capitol Complex, Carson City, Nevada 89710

Dear Mr. Dodgion:

You have asked this office for an opinion related to environmental reports routinely

submitted to the Division of Environmental Protection (Division), and the federal copyright law.

You desire to know how the copyright law comports with NRS 239.010, Nevada's public records

law. These reports describe environmental conditions of private and public real property, typically

prepared by an environmental consultant for the facility owner or operator, and filed with the

Division.

The environmental reports are often reviewed, cited, and copied by other private

interests, including environmental professionals, to document conditions of adjacent or nearby

property. In some cases, pertinent excerpts are reproduced in the offices of the Division by staff as

a service to the public.

In the context of the foregoing, you have asked the following questions:

QUESTION ONE

Can environmental data obtained from public and private real property be

copywritten by a consultant?

ANALYSIS

It is not relevant to our analysis whether the data was obtained from public or

private real property. Regardless of the status of the real property, the data in the report may not be

protected by copyright.

A constitutional requirement for copyright protection is originality of authorship.

U.S. Const. art. I, § 8, cl. 8; 17 U.S.C. § 102(a) (1995). Because facts do not owe their origin to an

act of authorship, no one may claim originality as to facts. Feist Publications v. Rural Telephone

Service, 499 U.S. 340, 346 (1991). The consultant, through inspection and laboratory testing of

soil taken from a site, may discover information about the metal or organic material in the soil but

he or she is not the author of the fact. The copyright act provides that its protection does not

extend to any discovery. 17 U.S.C. § 102(b) (1995); 37 C.F.R. § 202.1(d) (1995); Feist

Publications, 499 U.S. at 354; Suid v. Newsweek Magazine, 503 F. Supp. 146 (D.C. 1980)

(discovery of quotations from unpublished letters written by others does not justify copyright by

the discoverer.); 1 M. Nimmer, D. Nimmer, Nimmer on Copyright, § 2.11(A) (1995) However,

our analysis does not rest here.

Because the consultant reports may be a compilation of data, the report as a whole

may be subject to copyright. The seminal case to decide the issue is Feist Publications v. Rural

Telephone Service. Prior to Feist, two theories developed among the federal circuit courts. The

seventh, eighth, and tenth circuits followed the "sweat of the brow" theory. These courts were

reluctant to preclude copyright protection for the person who spent the time and resources to gather

facts and produce them in a list or catalog such as a telephone directory. While the list consists of

facts, those courts were loath to allow competitors to take those facts from the compiled source and

reproduce them for their own gain with little more trouble than it took to copy them from the first

producer. The "sweat of the brow" cases lost sight of the standard of originality of authorship as it

had been understood in copyright law.

The "selection or arrangement" theory looks for the presence of originality as the

basis for application of copyright protection. This theory was followed by four circuits; the

second, fifth, ninth, and eleventh. See Worth v. Selchow and Righter Co., 827 F.2d 569, 574 (9th

Cir. 1987), cert. denied, 485 U.S. 977 (1988).

The United States Supreme Court in the Feist decision reconciled the split in the

circuits and affirmed that copyright law requires application of the selection or arrangement theory

regarding compilations.

The statute identifies three distinct elements and requires each to be met for a work to

qualify as a copyrightable compilation: (1) the collection and assembly of pre-existing

material, facts or data; (2) the selection, coordination, or arrangement of those materials;

and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of

an 'original' work of authorship.

Feist, 499 U.S. at 357.

The Feist decision concerned a telephone "white pages" directory produced by a

telephone company. It included in part, names, addresses, and telephone numbers copied from

Rural Telephone's directory. The court examined whether there was the minimum level of

originality in the compilation. It noted that as to white pages, the arrangement in alphabetical order

was hardly an act of originality, it was an inevitable arrangement for a telephone directory! The

requirement of originality is not met in an arrangement that is obvious, commonplace, traditional,

expedient or inevitable. Feist, 499 U.S. at 363. However, the requisite amount of originality or

creativity is a minimal amount. Feist, 499 U.S. at 345; Landsberg v. Scrabble Crossword Game

Players, Inc., 736 F.2d 485 (9th Cir. 1984), cert. denied, 469 U.S. 1037 (1984).

It is immaterial for copyright eligibility that an environmental consultant expended

time or money gathering the facts. What is material is whether compilation of those facts was

independently assembled and contains a minimum of originality or creativity.

CONCLUSION TO QUESTION ONE

Facts or data in the consultant's report are not eligible for copyright. However,

whether the report as a whole may be copied depends on whether arrangement or selection of the

facts demonstrates originality of authorship as that term is used in the law of copyright. The

originality standard is a low one. Bear in mind that even if the compilation is protected by

the facts.

QUESTION TWO

Assuming that a report, as a compilation of facts, meets the standard of originality

of authorship, under what circumstances may it be copied?

ANALYSIS

The copyrighted material may be copied without infringement under certain limited

circumstances. These circumstances are known as the fair use doctrine. The law specifies that

copying may be done for use in research, criticism, comment, news reporting, teaching, or

scholarship. The statute spells out the factors to be considered to determine whether the use is

within the doctrine. The factors are: (1) whether the purpose and character of the use is

commercial or non profit; (2) nature of the copyrighted work; (3) amount and substantiality of the

portion used; and (4) effect of the use upon market or value of the copyrighted work. 17 U.S.C. §

107 (1995).

A copyrighted report may be copied if the intended use fits within the fair use

doctrine. Copying only facts or data, without copying the arrangement or compilation, is not an

infringement of copyright protection and does not have to fit within the fair use doctrine.

However, Division personnel would be in a difficult position if asked to analyze each report

against the legal criteria for fair use or to analyze each report to determine if a particular report has

minimum creativity or originality to meet the threshold for copyrightability of the report itself,

albeit the facts in the report are never subject to copyright. This office suggests that the Division

personnel not attempt the analysis for the benefit of those who request a copy.

The public record law does not require the Division provide a copy or perform

copying of the consultant reports. The law only requires that the public record be made available

for inspection and copying. NRS 239.010. Division staff may allow a person who requests a copy

to make for themselves a copy of a report that purports to be copyrighted. The Division staff

should make the record available for copying, inform requesters of the possibility that the report as

a whole may be protected by the copyright act, and assume no responsibility for infringement, if

any, done by the person who copied the document. In the alternative, if integrity of the file is an

issue, the requester may designate the pages to be copied and clerical staff may make the copies

provided that the requester is informed of possible copyright protection and that the public records

law is not a defense against any infringement. We suggest the Division prepare highly visible

signs to this effect and the signs be posted prominently in the area where reports are to be viewed.

CONCLUSION TO QUESTION TWO

A copyrighted work may be copied without infringement under the fair use

doctrine. Division staff should not attempt to determine if the requester's intended use is within the

fair use doctrine. The requester may make copies at his or her own risk of infringement.

QUESTION THREE

If the data can be copied, how should the Division proceed with providing the data

given the requirements of NRS 239.010?

ANALYSIS AND CONCLUSION TO QUESTION THREE

Though data or facts may not be copyrighted, we recommend the Division not copy

the data for requesters, but allow them to do it as described above. This removes the Division from

the difficult position of deciding whether, in copying data, original elements of the work have also

been copied impermissibly or perhaps permissibly copied under the fair use doctrine.

QUESTION FOUR

If an environmental report may legally be copyrighted, must it state in writing that

it is copyrighted?

ANALYSIS

Your question reaches to issues of notice and defenses to infringement of copyright.

The outright omission of notice of copyright (the copyright symbol or other words specified in the

statute) does not automatically forfeit copyright protection. 17 U.S.C. § 405(a) (1995). Since the

Berne Convention in 1988, statutory protection is secured automatically when a work is created

and is not lost even if the copyright notice is omitted. Section 405 of the Copyright Act provides

that, with respect to copies publicly distributed by authority of the copyright owner, omission of

the copyright notice or symbol does not invalidate the copyright of a work if: (1) the notice has

been omitted from a relatively small number of copies; or (2) registration of the work was made

before or within five years after publication provided a reasonable effort is made to add notice after

the omission is discovered.

Furthermore, a person acting in good faith with no reason to think otherwise is

ordinarily able to assume that the work is in the public domain if there is no notice whereby the

infringer is shielded from liability as an "innocent infringer." 17 U.S.C. § 405(a) and (b) (1995).

The thrust of your question is undoubtedly related to liability concerns if Division

staff innocently copy an environmental report which does not give notice that it is copyrighted.

While the innocent infringer defense would be available, we recommend the best course of action

is to allow public inspection and allow requesters to make their own copy after informing them that

a copy of the full report might be protected by the copyright law.

CONCLUSION TO QUESTION FOUR

An environmental report does not have to state in writing that it is copyrighted. For

works published after March 1988, the author does not automatically lose protection of copyright if

the work is published without notice of the copyright. However, a person who copies the work

without any reason to know it is copyrighted may assert the defense of "innocent infringer" and

generally will not be liable in damages for the infringement. An innocent infringement does not

result in the work being in the public domain.

FRANKIE SUE DEL PAPA

Attorney General

By: MELANIE MEEHAN-CROSSLEY

Deputy Attorney General

__________

OPINION NO. 96-10PRISONERS; INDIGENTS; MEDICINE: The Director of the Nevada

Department of Prisons has authority to charge inmates a copayment for medical care provided no

inmate is denied medical care due to indigency and that due process protections are afforded.

Carson City, April 19, 1996

Michael Fitting, D.O., Medical Director, Nevada Department of Prisons, Post Office Box 7011,

Carson City, Nevada 89702

Dear Dr. Fitting:

You have requested an opinion from this office regarding potential legal problems

which might result from implementing a portion of Assembly Bill (A.B.) 389 authorizing the

Director of the Nevada Department of Prisons (NDOP) to charge inmates a copayment for medical

care.

QUESTION ONE

Can or should NDOP charge copayments for inmates who are classified as

chronically ill?

QUESTION TWO

Can or should NDOP charge copayments for extraordinary medical expenses (over

$10,000)?

ANALYSIS

A. History of Medical Copayment Legislation

In 1987, the Nevada State Legislature amended NRS 209.246 to authorize the Director of

NDOP to establish, with prison board approval, regulations to deduct reasonable sums from

offender accounts to "[d]efray the costs paid by the department for medical care for the offender."

Act of June 27, 1987, ch. 807, § 1, 1987 Nev. Stat. 2238.

With passage of A.B. 389 in the 1995 Legislative Session, NRS 209.246 was amended,

effective August 15, 1995, to expand the Director's authority to charge inmates for medical care to:

Defray, as determined by the director, a portion of the costs paid by the department for

medical care for the offender including, but not limited to:

(a) Except as otherwise provided in paragraph (b) of subsection 1, expenses for medical or

dental care, prosthetic devices and pharmaceutical items; and

(b) Expenses for prescribed medicine and supplies.

Act of June 15, 1995, ch. 219, § 3, 1995 Nev. Stat. 365.

B. Authority of Legislature to Adopt Copayment Legislation

Nevada was one of the first states to enact legislation requiring inmates to contribute to medical

care costs. To date, courts considering legal challenges of such statutory provisions have upheld

them as constitutional. Johnson v. Dept. of Public Safety and Correctional Svcs., 885 F. Supp. 817

(D. Md. 1995); Shapley v. Nevada Board of State Prison Commissioners, 766 F.2d 404 (9th Cir.

1985).

The U.S. Supreme Court in City of Revere v. Massachusetts General Hospital, 463 U.S. 239

(1983), addressed matter of payment of medical care afforded to an inmate. Although the Court

did not address legality of any specific inmate copayment plan, it considered whether the

incarcerating jurisdiction or the medical provider was responsible for payment of an inmate's

medical care. The Supreme Court concluded that as long as the inmate was not denied necessary

medical care, state law determined who would pay the cost.

C. Eighth Amendment Challenges

Inmates objecting to conditions of their confinement traditionally seek redress under the Eighth

Amendment to the United States Constitution, which prohibits cruel and unusual punishment.

Cruel and unusual punishment is the "wanton and unnecessary infliction of pain." Wilson v. Seiter,

501 U.S. 294 (1991). The U.S. Supreme Court has held that in the medical context, prison officials

may not act with "deliberate indifference to an inmate's serious medical needs." Estelle v. Gamble,

429 U.S. 97, 106 (1976).

To prevail on a claim for a violation of his Eighth Amendment right to adequate medical

treatment, the inmate must show: (1) an acute physical condition; (2) the urgent need for medical

care; (3) the failure or refusal to provide medical care; and (4) tangible residual injury. Stiltner v.

Rhay, 371 F.2d 420, 421 (9th Cir. 1967); Smith v. Schneckloth, 414 F.2d 680, 681 (9th Cir. 1969).

Thus, prison staff may not deny an inmate care necessary to treat a serious medical need,

regardless of the inmate's ability to pay. Shapley, 766 F.2d at 404. Whether or not the statute

specifically states this does not appear to be important, as long as the prison policy is that medical

care will be provided without regard to the inmate's ability to pay.

The court in Johnson rejected the inmate's Eighth Amendment claim, noting the defendant's

policy "is flexible and makes a wide variety of exceptions to avoid imposing unnecessary hardship

on seriously or chronically ill prisoners" and "it appears that the only inmates likely to be subjected

repeatedly to the co-pay requirement are those who overuse prison medical services with frequent

visits for minor complaints." Johnson, 885 F. Supp. at 820. The court also noted "because the

policy mandates that no one shall be refused treatment for an inability to pay, the copay policy will

not result in a denial of care, even for inmates who abuse the system." Id. The court found the

policy "represents a commendable effort to promote inmates responsibility and the efficient use of

scarce medical resources." Id. The plaintiff in Johnson failed to allege he had ever been denied

medical treatment for lack of funds, or that he had been charged for medical services which he did

not receive. Id.

D. Right to Equal Protection

The claim of the plaintiff in Johnson, that the policy was unfair to poor inmates under the

Fourteenth Amendment, was rejected by the U.S. District Court in Maryland. The court pointed

out poverty is not a suspect class, and thus any discriminatory classifications on the basis of wealth

would receive only rational basis scrutiny (citing Maher v. Roe, 432 U.S. 464, 471 (1977)).

Clearly, any copayment policy should not improperly discriminate against suspect classes of

persons, i.e., white inmates cannot be charged more for a medical service than black inmates.

The court, in examining the equal protection claim, held that: "The DOC clearly has a

legitimate interest in both the efficient use of its prison resources as well as promoting inmates'

personal responsibility for their own health. The copay policy is well-suited to accomplish this

goal." Johnson, 885 F. Supp. at 821.

The stated purpose of the copayment policy adopted in Maryland was to reduce inmate abuse

of the sick call system, promote inmate responsibility for their own health, and to allow facility

medical resources to be used more efficiently. Id. at 818. The court found the copayment system

bore a rational relationship to legitimate government interests, and was constitutional.

The court further noted the following characteristics of the Maryland copayment system: (1)

the statute permits prison officials from assessing a fee not greater than $4.00 for medical visits and

enumerates certain exceptions to it; (2) the Division of Corrections had adopted a policy available

to inmates which described how the copayment system worked, and describing the various

exceptions (no charge for emergency services, routine health assessments, necessary follow-up

visits, chronic care, infirmary care, and secondary care services); and (3) the policy and practice of

the Division of Corrections, of which inmates had notice, was that treatment would not be denied

for lack of funds. Id.

E. Right to Due Process

Courts have held that inmates retain a protected property interest in their inmate accounts, and

are therefore entitled to some due process in the event money is taken from their accounts. Quick

v. Jones, 754 F.2d 1521 (9th Cir. 1994).

In Scott v. Angelone, 771 F. Supp. 1064 (D. Nev. 1991), aff'd, 980 F.2d 738 (9th Cir. 1993), the

court considered an inmate's claim that he had been improperly charged a medical copayment, and

challenged both the state law and the regulations implementing the copayment program. The court

rejected his claims, finding there was clear statutory authority for the program, and the inmate had

received adequate due process protections. The inmate requested the services, received prior

notice that a charge would be made, and there was a process by which the inmate could challenge

the appropriateness of the charges imposed. The court noted under the statute in effect at the time,

the copayment charges applied to inmate-initiated, nonemergency medical visits.

The Johnson court also rejected the inmate plaintiff's due process challenge to the medical

copayment system. The record in that case reflected the inmates were informed of the policy, the

medical care was documented, and the inmates were to sign a log book when the service was

provided. The inmate's refusal to sign did not change the court's analysis. Johnson, 885 F. Supp.

at 821.

F. Other Constitutional Considerations

The Department of Prisons must ensure that its medical copayment policy or practice does not

violate any other constitutional right afforded to inmates. For example, under the Eighth

Amendment, inmates are entitled to basic hygiene items. If such items must be purchased, the

inmate must have sufficient funds with which to buy them. In a prison system which does not

supply hygiene items to inmates, imposition of medical copayment charges cannot deprive the

inmate of funds necessary to purchase hygiene items. Romer v. Collins, 962 F.2d 1508 (10th Cir.

1992).

CONCLUSION TO QUESTIONS ONE AND TWO

The Nevada Legislature has authority to enact laws permitting the Director of NDOP to

establish a medical copayment program compelling inmates to contribute toward the cost of

providing them with medical care. Under NRS 209.246, determination of what medical care will

be subject to a copayment is left to the Director's discretion, subject to prison board approval. The

legislation bears a reasonable relationship to legitimate government interests.

The remaining question is whether there are limitations on the Director's authority to

implement the medical copayment program. Based upon court decisions to date and dicta therein,

it is recommended that policies and procedures should be developed with the following general

guidelines:

1. The plan should be designed to further legitimate goals of the NDOP, including:

a. Discourage inmate abuse of availability of medical care;

b. Encourage inmate responsibility in determining necessity for seeking medical care;

c. Defray cost to the taxpayers of providing medical care to inmates; and

d. Free up medical staff to enable them to devote limited resources to treating inmates with

legitimate medical concerns.

2. The plan should include adequate due process protections.

a. A copy of the copayment plan should be available to inmates by posting in all

infirmaries, law libraries, and other appropriate areas of each prison facility. In addition,

at the time an inmate is seeking medical care, the written form he signs authorizing the

treatment should indicate that a copayment charge may be imposed; and

b. A post-deprivation process by which an aggrieved inmate can challenge propriety of the

charges to his inmate account.

3. The plan should clearly provide that no inmate will be denied medical care due to inability to

pay.

4. The plan should reflect reasonable copayment charges, as well as a reasoned approach to

determining what items will be subject to charges. It is suggested the following

considerations be taken into account in developing the plan:

a. The cost to NDOP in providing the service;

b. Whether the service is mandatory or inmate-initiated;

c. Whether the service is chronic (requiring regular visits, medication, or other continual

care);

d. The degree to which the service is abused by inmates;

e. Impact of any required documentation, tracking or accounting services on the resources

of NDOP (is the implementation cost-effective?);

f. Whether the copayment charge is likely to encourage inmates to make more responsible

decisions regarding their own medical care;

g. Whether imposing copayment charges for particular services may result in fewer

unnecessary medical visits, thereby freeing medical staff resources;

h. The extent to which any specific copayment charge affects other NDOP goals and

policies.

5. The plan should not adversely impact on any other constitutional rights of inmates.

a. It is recommended NDOP continue its policy of permitting inmates to retain a reasonable

percentage of the income received into their accounts prior to taking deductions for

copayment charges; and

b. It is recommended NDOP continue its policy of providing basic hygiene items to inmates

without charge.

QUESTION THREE

Is the ability of NDOP to charge copayments for mental health care affected by any court

orders in the previously litigated case entitled Taylor v. Wolff, CV-N-79-162-JMB?

ANALYSIS

Taylor v. Wolff was a civil rights lawsuit litigated as a class action by inmates in the NDOP

system alleging deficiencies in delivery of mental health care to inmates. Originally filed in 1979,

the case was closed in 1994. During that period, court monitors evaluated NDOP mental health

care system and recommended changes to the court, which approved various recommendations

based upon an amended stipulated settlement agreement entered into by the parties in 1988.

Neither the agreements between the parties nor the relevant court orders entered in Taylor v.

Wolff appear to address the subject of charging inmates for mental health care services rendered. It

should be noted NDOP agreed its mental health care program would comply with standards of the

American Correctional Association as set forth in the document entitled Standards for Adult

Correctional Institutions (2d ed. 1981). Thus, to the extent these standards contained guidelines

for charging copayments for mental health care, NDOP would have been obligated to follow them.

Notwithstanding Taylor v. Wolff, a plan to implement copayment charges for mental health

care services to inmates would be subject to the same analysis set forth in this opinion for Question

One and Question Two.

CONCLUSION TO QUESTION THREE

A review of all court orders in the Taylor v. Wolff case revealed no restrictions or limitations on

the ability of NDOP to impose copayment charges for mental health services. Copayment charges

relating to mental health care would also be subject to the same analysis and guidelines as set forth

in this opinion.

FRANKIE SUE DEL PAPA

Attorney General

By: ANNE B. CATHCART

Senior Deputy Attorney General

__________

OPINION NO. 96-11REDEVELOPMENT AGENCIES; CITIES: Agency could not enact an

administrative policy exceeding the statutory authority regarding class of persons entitled to certain

types of relocation assistance benefits. City council is appropriate body to determine the public

benefit of entering into a long term lease with a private business on city owned property.

Carson City, April 25, 1996

The Honorable Patricia A. Lynch, Reno City Attorney, Post Office Box 1900, Reno, Nevada

89505-1900

Dear Ms. Lynch:

You have requested an opinion from this office based on the following facts:

On February 20, 1996, the City of Reno Redevelopment Agency (Agency) adopted its

Relocation Policy pursuant to NRS 342.045. The adopted policy included an amended section

28.2 which provided:

The provisions of this section do not apply to month-to-month tenancies, unless the

business has been in continuous operation for more than twelve (12) months prior to

acquisition by the Agency. (Subject to approval by the Attorney General of the State of

Nevada.)

Policies of Redevelopment Agency of the City of Reno to Provide Relocation Assistance and Make

Relocation Payments to Persons Displaced From Their Dwellings or Business as a Result of

Acquisition of Property by the Agency (italicized portion is the amended language adopted by the

Agency).

Subsequently, members of the Redevelopment Agency Board proposed that the City enter into

a 5-year lease with a 2-year renewal option with Colombo's. Colombo's is a restaurant located in

the city owned Riverside Garage and occupies the premises as a month-to-month tenant. The

members also proposed that the Agency purchase the Riverside Garage after the Colombo's lease is

executed. You have advised that under the Agency's current policy on use of eminent domain

(adopted February 5, 1996), the Agency could not terminate the leasehold through eminent

domain. Therefore, the Agency could not convey the property unencumbered by the lease to any

private developer.

You have posed two questions regarding actions of the Agency and the City Council:

QUESTION ONE

Whether the Redevelopment Agency, in adopting its Relocation Policy, has the authority to

alter, modify, or amend a statutory provision adopted by the legislature expressly excluding a

month-to-month tenancy from receiving certain types of displacement benefits provided by NRS

342.055.

ANALYSIS

We conclude the Agency was without authority to modify NRS 342.055 in order to expand the

class of persons eligible to receive certain relocation payments. While the Agency does have

discretion to increase the amount of relocation benefits to which a displaced person or business is

eligible, it does not have the discretion to create a new type of benefit for a displaced person or

business for which there is no statutory entitlement. Additionally, the provision which makes the

regulation subject to approval by the Attorney General of the State of Nevada is void since the

Agency may not prescribe a duty for this state officer to perform.

NRS chapter 342 was enacted by the 1995 Nevada Legislature as Assembly Bill 532. Act of

July 5, 1995, ch. 603, § 1, 1995 Nev. Stat. 2232. The statutes relevant to this inquiry are NRS

342.045, NRS 342.055(1) and (2), and NRS 342.075(2).

NRS 342.045 provides:

Before undertaking a project that will result in the displacement of a natural person or a

business, each governmental body shall adopt policies pursuant to NRS 342.015 to

342.075, inclusive, to provide relocation assistance and make relocation payments to each

person displaced from his dwelling or business establishment as a result of the acquisition

of property in a manner substantially similar to and in amounts equal to or greater than

those which are provided for in the federal Uniform Relocation Assistance and Real

Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601-4655, and the regulations

adopted pursuant thereto.

NRS 342.055 provides in part:

1. In addition to the relocation benefits provided pursuant to NRS 342.045, each person

who is displaced from his business establishment as a result of the acquisition of property

by an agency created pursuant to chapter 279 of NRS or by any person or entity acting on

behalf of, in cooperation with or under contract with such an agency, and whose lease of

the premises on which the establishment is situated is terminated as a consequence of the

acquisition, must be paid:

. . . .

2. The provisions of this section do not apply to month-to-month tenancies. [Emphasis

added.]

NRS 342.075(2) provides:

Notwithstanding the provisions of NRS 342.015 to 342.065, inclusive, a governmental

body may, if appropriate under the circumstances, pay to a displaced person an amount of

benefits that exceeds the amounts set forth in NRS 342.015 to 342.065, inclusive. The

governmental body has sole discretion to decide whether benefits will be paid in an amount

that exceeds the amounts set forth in NRS 342.015 to 342.065, inclusive, and its decision

on that matter is final.

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. Board of Supervisors of Carson City, 102 Nev. 644,

648, 730 P.2d 438, 441 (1986), citing 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. Cirac v. Lander County, 95 Nev. 723, 728, 602 P.2d 1012,

1015 (1979); Allstate Insurance Co. v. Pilosof, 110 Nev. 311, 315, 871 P.2d 351, 354 (1994).

"Additionally, in determining the meaning of a specific provision of an act, the act should be read

as a whole." Nevada Tax Comm'n v. Bernhard, 100 Nev. 348, 350-51, 683 P.2d 21, 23 (1984);

White v. Warden, 96 Nev. 634, 636, 614 P.2d 536, 537 (1980).

NRS 342.045 provides relocation assistance benefits to a certain class of persons and

businesses. Benefits allowed under NRS 342.045 are provided in a manner similar to those

provided for in the Uniform Relocation Assistance and Real Property Acquisition Policies Act of

1970, 42 U.S.C. §§ 4601-4655 and the regulations adopted pursuant thereto.

Under section 26 of the Agency's relocation assistance policies, adopted in accordance with

NRS 342.045, types of relocation benefits which a person or business may receive include:

1. Transportation, packing, unpacking and storage up to 12 months of personal property;

2. Disconnecting, dismantling, removing, reassembling and reinstalling equipment, machinery,

and personal property;

3. Replacement value insurance or payment of replacement value for property lost, damaged,

or stolen during relocation;

4. Prorated payment of fees for licenses, permits, or certificates required for new location;

5. Relettering signs and replacing stationery;

6. Professional services for planning, moving, and installing property at new location;

7. Expenses connected with search for new location, up to $1,000;

8. Expenses of selling property that is not relocated;

9. Purchase of substitute property; and

10. Other eligible moving expenses the Agency determines to be reasonable and necessary.

Policies of Redevelopment Agency of the City of Reno, sec. 26.

In addition to the relocation benefits available under section 26, a displaced small business is

entitled to receive a payment, not to exceed $10,000, for expenses actually incurred in relocating

and reestablishing the business at the replacement site. The eligible reestablishment expenses

include, but are not limited to:

1. Repairs or improvements to new location as required by statute, code, or ordinance;

2. Modifications to new location to accommodate business operation;

3. Constructing and erecting new signage and advertising for new location;

4. Redecorating or replacing worn or soiled surfaces at new location;

5. Licenses, fees, permits not paid as part of moving expenses;

6. Various surveys, testing, and studies;

7. Professional services connected with purchase or lease of new location;

8. Estimated increased cost of business operation for first two years for such items as leases or

rental charges, property taxes, insurance, and utility charges;

9. Impact fees or one-time assessments for heavy utility usage; and

10. Other items considered by Agency to be essential to reestablishment of business.

Policies of Redevelopment Agency of the City of Reno, sec. 27. Note that sections 26 and 27

provide the same enumerated benefits as the federal relocation regulations found at 49 C.F.R. Part

24.303-.304 (1994).

NRS 342.055 provides benefits in addition to those listed above for certain classes of

businesses which have had leases terminated as a consequence of acquisition. Month-to-month

tenants are, by plain statutory language, excluded from this class of persons. Under NRS 342.055

and under section 28 of the Agency's policies, the types of displacement expense benefits which an

eligible business might receive include:

1. Alterations and other physical changes required to be made to new location to make it

suitable for the business operation;

2. Modifications to machinery, equipment and property relocated to new location, not to

exceed cost of acquisition of the item less accumulated depreciation;

3. Prorated fees for licenses, permits, certificates required to operate business at new location;

4. Actual fees for professional services incurred in connection with acquiring new location,

including attorneys, engineers, appraisers, realtors, and other consultants; and

5. The difference between the business' old rent and the rent required to lease a comparable

location for a term equal to the period that remained on the old lease.

The fair market value of the business if the business owner is unable to relocate to a

comparable location because of a governmental regulation, ordinance or restriction, or

because a comparable location is not available.

Not only does NRS 342.055 provide for additional types of displacement payments for a long-

term leaseholder, it also provides a unique fair market value payment for the business if the entity

could not be relocated. In order to receive these unique benefits, the displaced business must be a

long-term leaseholder, not a month-to-month tenant. When Colombo's did not preserve its long-

term lease agreement, it lost the benefit of this classification.

The language of NRS 342.055(2) is clear and unambiguous. Month-to-month tenancies are

expressly excluded from receiving the additional relocation benefits set forth in the statute. In this

case, it is apparent from the act as a whole that the reestablishment benefits payable under NRS

342.055 are in addition to the relocation benefits described in NRS 342.045. Furthermore, the first

paragraph of NRS 342.055 refers to a person who is displaced from his business establishment and

whose lease of the premises is terminated as a consequence of the acquisition. The language

indicates that the legislative intent was to protect leaseholders who have cognizable property rights.

A month-to-month tenancy is not within this class. A tenancy from month-to-month is not a

continuing right of possession, but ends and recommences at the expiration of every month; each

new month of a month-to-month tenancy is a separate contract. See, 49 Am. Jur. 2d Landlord and

Tenant § 130 (1995).

The Agency cannot extend benefits by regulations to a class of persons not included within the

authorizing statute. Harris v. Lynn, 555 F.2d 1357, 1358 (8th Cir. 1977).

An administrative

agency has no authority to enact rules or regulations which alter or enlarge terms of legislative

enactments. California Sch. Emp. A. v. Personnel Comm'n of P.V.U.S.D., 474 P.2d 436, 439 (Cal.

1970). It may not, by its rules, amend, alter, enlarge, or limit the terms of a statute. University of

Oregon Co-Op. St. v. State, Dept. of Revenue, 542 P.2d 900, 906 (Or. 1975); Matter of George,

579 P.2d 354 (Wash. 1978). When a conflict exists between a statute and a regulation, the

regulation must be set aside to the extent of the conflict. Idaho City. Nurs. Home v. Dept. of

Health, 821 P.2d 988, 992 (Idaho 1991). An agency regulation that is inconsistent with, and which

goes beyond the specific language of the authorizing statute, is invalid. Tullock v. State Highway

Comm. of Missouri, 507 F.2d 712, 716-17 (8th Cir. 1974).

NRS chapter 342, which applies to all political subdivisions of the State of Nevada and their

departments or agencies, is an act of the state legislature and is clearly a state law of general

application. It sets forth conditions for providing relocation assistance and payments. The

legislature specifically excluded month-to-month tenancies from eligibility for reestablishment

benefits payable to dislocated businesses. NRS 342.055(2). If the legislature had wanted to

provide an exception for businesses in existence more than 12 months, language to that effect

could easily have been inserted in the statute. State of Nevada Dept. of Motor Vehicles & Public

Safety v. Brown, 104 Nev. 524, 526, 762 P.2d 882, 883 (1988). When the language of a statute is

plain and unambiguous, its ordinary meaning cannot be added to or extended. Hartz v. Mitchell,

107 Nev. 893, 897, 822 P.2d 667, 669 (1991).

The Reno City Council, acting as the Redevelopment Agency Board, was without power to

enact a policy which expanded the class of those eligible for nonresidential displacement benefits

to include certain month-to-month tenancies. The policy directly conflicts with the statute as

enacted by the legislature in that it permits that which the statute forbids.

Interpreting HUD regulations promulgated under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42

U.S.C. § 4601 et seq., the U.S. Court of Appeals, Eighth Circuit, said: "To the extent the regulations can be read to confer benefits not authorized by

the Act's statutory provisions, they are beyond the agencies' delegated powers."

The Agency does have some flexibility in determining amount of benefits awarded to displaced

persons or business. NRS 342.075(2) permits the Agency, if appropriate under the circumstances,

to pay to a displaced person or business an amount of relocation benefits which exceed the

amounts set forth in NRS 342.015-.065, inclusive. Colombo's would be entitled to receive

relocation assistance and relocation payments under NRS 342.045. The Agency has discretion to

determine whether the circumstances warrant paying Colombo's an amount in excess of the

relocation payments authorized under NRS 342.045. However, NRS 342.075 does not authorize

the Agency to expand the class of persons eligible for the nonresidential displacement benefits

payable under NRS 342.055.

Finally, the provision in the amended policy which states it is "subject to the approval of the

Attorney General of the State of Nevada" is void. The powers and duties of the Attorney General

are prescribed by the Nevada State Constitution and by state statutes. The Agency has not been

delegated any power to prescribe a duty for this state officer.

QUESTION TWO

Whether creation of a legal obligation on the part of the City or Agency in furtherance of a

private interest which in this case would be the agreement for a long-term lease with Colombo's,

with no apparent benefit to the public, constitutes a public purpose.

ANALYSIS

The issue presented is whether the City of Reno may execute a 5-year lease with Colombo's

prior to the City conveying the Riverside Garage to the Agency.

The Charter of the City of Reno states the City Council may acquire, control, improve, and

dispose of any real or personal property for the use of the city, its residents and visitors. Reno City

Charter § 2.140(1).

As a general proposition, the governing board of a local government has discretion to lease

publicly owned property and to make arrangements for the management, control, and maintenance

of the property, provided the public interest is served thereby. 10 McQuillin, Municipal

Corporations, § 28.42 (3rd ed. 1988). It is not within the purview of this office to make a

determination whether a particular lease of municipally owned realty creates a public benefit. The

City Council is empowered to control city owned property, and it is within the City Council's

powers to make the determination whether the public interest is served by executing a long-term

lease with Colombo's.

CONCLUSION TO QUESTIONS ONE AND TWO

The Redevelopment Agency lacked the authority or the power to amend NRS 342.055 to

include certain month-to-month tenants within the class of persons eligible to receive certain

displacement benefits in addition to the relocation benefits provided under NRS 342.045. While

the Agency has some discretion under NRS 342.075(2) to increase amounts of benefits to

displaced persons or businesses, it does not have discretion to award a new type of benefit to a

displaced person or business that does not qualify for such a category of benefits. Finally, the

Reno City Council is the governing body with discretion to lease city owned property and to

determine whether granting a long-term lease creates a public benefit.

FRANKIE SUE DEL PAPA

Attorney General

By: ROBERT L. AUER

Senior Deputy Attorney General

__________

OPINION NO. 96-12SHERIFFS: Sheriff's duties within a city involve the same express statutory

duties as that officer performs elsewhere throughout the county.

Carson City, May 6, 1996

The Honorable John Hanford, White Pine County District Attorney, White Pine County

Courthouse, Post Office Box 240, Ely, Nevada 89301

Dear Mr. Hanford:

On December 8, 1995, our office issued a legal opinion upon your request. In that opinion we

concluded the sheriff had a duty to keep and preserve peace throughout the county and that such

jurisdictional right and duty included performance of such services within an incorporated city

located within said county. You have now asked a follow-up question on the same matter.

QUESTION

In the absence of an interlocal agreement, what specific mandated duties does the sheriff have

to an incorporated city which has neither maintained its own local police force nor formed a

metropolitan police force?

ANALYSIS AND CONCLUSION

The sheriff holds an office created through the State Constitution. Nev. Const. art. 4, § 32 sets

forth in part that the legislature shall fix by law duties and compensation of the sheriff. The

sheriff's powers and duties are generally created by expressed legislative enactment, by common

law, and by implied powers reasonably necessary to carry out express provisions. See People v.

Buckallew, 848 P.2d 904, 908 (Colo. 1993).

As noted in our prior legal opinion, the sheriff's authority is county-wide. Thus, the simple

answer to your present question is that the sheriff's duties within a city involve the same express

statutory duties as the sheriff performs elsewhere throughout the county. The sheriff's duty to

provide services within a city is discussed in the case of State v. Williams, 144 S.W.2d 98 (Mo.

1940) as follows:

His authority is county wide. He is not restricted by municipal limits. For better

protection and for the enforcement of local ordinance the cities and towns have their police

departments or their town marshals. Even the state has its highway patrol. Still the

authority of the sheriff with his correlative duty remains. It has become the custom for the

sheriff to leave local policing to local enforcement officers but this practice cannot alter his

responsibility under the law. Usage cannot alter the law. It is self evident that a custom or

usage repugnant to the express provision of a statute is void. A policeman is an officer

whose duties have been, for local convenience, carved out of the old duties of constable,

and the constables were always part of the general force at the disposal of the sheriff.

There is no division of authority into those of the sheriff and the police. Each is a

conservator of the peace possessing such power as the statutes authorize. . . . In every

county there are a number of peace officers of varying authority. They and the sheriff must

work in harmony. In the larger communities where dense population has increased the

hardship of proper law enforcement police departments have developed scientific methods

of crime detection and prevention. Larger means and a greater number of men are

available to a local police department than to the county sheriff. Methods of rapid

communication and transit are provided. Under these circumstances the sheriff may leave

local enforcement in local hands, but only so long as reasonable efforts in good faith are

made to enforce the law.

The courts have taken cognizance of the development of local enforcement agencies. It

has been held, and correctly so, that a sheriff may assume that a city police department will

do its duty in enforcing the law and hence will not be guilty of any serious neglect of duty

if he gives little attention to police matters in such city. But this rule has a proper

qualification. If the sheriff has reason to believe that the police force is neglecting its duty

it is his duty to inform himself. And if he knows that the police are ignoring or permitting

offenses his duty to prevent and suppress such offenses is the same as it would be if there

was no municipality and no police force. . . .

Id., at 104-105 (citations omitted). Thus, the sheriff must perform express statutory duties even if

those acts are to occur within an incorporated city. The sheriff must keep and preserve the peace.

NRS 248.090. The sheriff must serve warrants and process for the courts of the state. Statutes

reflect that the sheriff must perform such service of warrants and process even for municipal

courts. NRS 5.060; NRS 248.100. Other statutory duties are spread throughout the chapters and

are too numerous and varied to be fully described herein.

As stated in our prior opinion, the sheriff is vested with discretion in determining how the

limited resources of the office will be used throughout the county.

FRANKIE SUE DEL PAPA

Attorney General

By: ROBERT L. AUER

Senior Deputy Attorney General

__________

OPINION NO. 96-13LAW ENFORCEMENT; PUBLIC UTILITIES: A telecommunications

company is required to disclose to the head of the requesting law enforcement agency the name

and address of the person listed in the records of customers held by the company.

Carson City, May 22, 1996

Mr. John Drew, Chief, Nevada Division of Investigation, 555 Wright Way Carson City, Nevada

89711

Dear Chief Drew:

This letter is in response to your request for an opinion from this office concerning the

following inquiry:

QUESTION

Does state law permit release of nonpublished subscriber information held by a

telecommunications company upon the written request of a chief executive law enforcement

officer to further a criminal investigation?

ANALYSIS

A. Background

The legislature conferred on the Public Service Commission power to regulate public utilities.

See NRS 704.001. In 1989, the legislature amended NRS chapter 704 by requiring disclosure of

certain customer information listed in the records of a public utility upon written request of a head

of a law enforcement agency.

Accordingly, the Nevada Division of Investigations (NDI) routinely seeks cooperation of

telephone companies in obtaining subscriber information during the early stages of an investigation

into purported criminal activity when NDI is without sufficient information to obtain a search

warrant and is further precluded from obtaining customer information by subpoena as no charges

have been filed. This becomes the only avenue available in obtaining information. Lack of

cooperation by a telephone company can frustrate law enforcement efforts in moving forward with

an investigation.

It is my understanding that the current inquiry stems from the reluctance of certain telephone

companies to disclose information pertaining to nonpublished subscribers as these customers pay

an additional fee to ensure their privacy.

B. Statutory Interpretation

There is nothing in NRS chapter 704 prohibiting release of nonpublished (unlisted) customer

information to law enforcement for the purpose of furthering an investigation. Specifically, NRS

704.201 provides:

1. To further a criminal or civil investigation, the chief executive officer of any law

enforcement agency of this state or a command officer designated by him may submit a

written request to a public utility that the name and address of a person listed in the records

of the customers of the public utility be disclosed to the agency.

2. The request must:

(a) If available, contain the social security number of the person about whom the request

is made;

(b) Contain a statement that the request is made to further a criminal or civil investigation

being conducted by the agency; and

command officer he has designated.

3. As used in this section, "command officer" means an officer in charge of a department,

division or bureau of the law enforcement agency.

"Public utility" for purposes of NRS chapter 704 includes in its definition "[t]elephone companies

and other companies which provide telecommunication or a related service to the public." NRS

704.020(1)(b).

Further, NRS 704.202(1) makes disclosure by the public utility mandatory. "Upon receipt of a

request by a law enforcement agency pursuant to NRS 704.201, a public utility shall disclose the

name and address of the person listed in the records of customers of the public utility to the

agency."

It is a fundamental principle of statutory construction that statutes should be construed to give

effect to the legislative intent. Sheriff v. Morris, 99 Nev. 109, 117, 659 P.2d 852, 858 (1983).

Such intent is to be gleaned from reading the entire statute. A Minor v. Clark County Juvenile

Court Services, 87 Nev. 544, 548, 490 P.2d 1248, 1250 (1971). Moreover, "statutes should be

construed in order to validate each provision of the statute." Sheriff v. Morris, 99 Nev. at 117.

Reading the relevant provisions of NRS chapter 704 conjunctively, it is apparent that the

legislature intended to include a telephone company subjecting it to the disclosure provisions of

NRS 704.201, et seq.

Equally fundamental is the rule of statutory construction that "[w]hen a statute is susceptible to

but one natural or honest construction, that alone is the construction that can be given." Building

and Construction Trades Council of Northern Nevada v. Public Works, 108 Nev. 605, 610, 836

P.2d 633, 636 (1992). Plainly stated, "[i]f a statute is clear on its face a court cannot 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). The language found in NRS 704.201 and 704.202 is clear

and unambiguous.

Moreover, the statutory provisions do not distinguish between nonpublished and published

subscriber information. Had the legislature intended to limit access by law enforcement to

published subscriber information, it could have done so by inserting language to that effect. See

generally State Department of Motor Vehicles and Public Safety v. Brown, 104 Nev. 524, 762 P.2d

882 (1988). It chose not to do so. A telephone company is required to disclose to law enforcement

certain customer information contained in its customer records.

Inherent in these statutory provisions are certain protections afforded the customer, apparently

to prevent abuses by law enforcement. NRS 704.201 and NRS 704.202 restrict disclosure of

customer information to either the chief executive officer of the law enforcement agency or a

designated command officer. Even then, the information disclosed is limited to only the

customer's name and address. NRS 704.201 and NRS 704.202.

The legislature further chose to afford the public utility certain protection, namely from

liability: "A disclosure made in good faith pursuant to subsection 1 does not give rise to any action

for damages for the disclosure of the name and address of a customer by a public utility." NRS

704.202(3). If the legislature chose to limit law enforcement access to published customer

information only, the argument can be made that there would be no need to afford the public utility

immunity from liability as published customer information is readily available to the public. The

better interpretation is that the legislature intended that law enforcement have access to both

published and nonpublished customer information. "Statutes must be given reasonable

construction with a view to promoting rather than defeating the legislative policy behind them."

State, Department of Motor Vehicles and Public Safety, 104 Nev. at 526.

Finally, statutes enacted in the exercise of police power are presumed to promote the public

welfare and are further presumed to be valid. Koscot Interplanetary, Inc. v. Draney, 90 Nev. 450,

456, 530 P.2d 108, 112 (1974). There can be no dispute that provisions of NRS chapter 704 were

enacted to promote public welfare by permitting law enforcement access to customer information

in furtherance of an investigation.

CONCLUSION

It is clear from the plain language of these statutory provisions that a telecommunications

company is required to disclose to the head of the requesting law enforcement agency the name

and address of the person listed in the records of customers held by the company.

FRANKIE SUE DEL PAPA

Attorney General

By: MARIAH L. SUGDEN

Senior Deputy Attorney General

__________

OPINION NO. 96-14CREDITS; PRISONERS; PROBATION; RESIDENTIAL

CONFINEMENT: Prisoners are not entitled to credit for time served in residential confinement as

a condition of probation.

Carson City, May 22, 1996

Mr. Robert Bayer, Director, Nevada Department of Prisons, Post Office Box 7011, Carson City,

Nevada 89702

Dear Mr. Bayer:

You have requested an opinion from this office regarding applicability of NRS 209.446 to

persons who have been sentenced to probation with a condition of residential confinement.

QUESTION ONE

Does NRS 209.446 apply to persons who have been sentenced to probation with a condition of

residential confinement?

ANALYSIS

NRS 209.446 grants "good time" credits to prisoners incarcerated within the Nevada

Department of Prisons. NRS 209.446(1) provides:

1. Every offender who is sentenced to prison for a crime committed on or after July 1,

1985, who has no serious infraction of the regulations of the department, the terms and

conditions of his residential confinement, or the laws of the state recorded against him, and

who performs in a faithful, orderly and peaceable manner the duties assigned to him, must

be allowed:

(a) . . . .

(b) For the period he is in residential confinement,

a deduction of 10 days from his sentence for each month he serves. [Emphasis added.]

NRS 209.432 defines an offender, as used in NRS 209.433-.451, as "a person who is convicted

of a felony under the laws of this state and sentenced, ordered or otherwise assigned to serve a term

of residential confinement." Residential confinement is defined as "the confinement of a person

convicted of a felony to his place of residence under the terms and conditions established pursuant

to specific statute. The term does not include any confinement ordered pursuant to NRS 176.2155,

176.219, 176.2231 to 176.2237, 213.15105, 213.15193 or 213.152 to 213.1528, inclusive." Id.

However, NRS 209.429 provides for assignment of offenders to residential confinement by the

director of the department of prisons under certain circumstances.

Chapter 209 also cross-references NRS 4.3762 and 5.076. NRS 4.3762 permits a justice court

to "sentence" a person convicted of a misdemeanor to residential confinement. NRS 5.076 permits

a municipal court to sentence a person convicted of a misdemeanor to residential confinement.

However, NRS 209.446 pertains only to persons convicted of a felony. See NRS 209.432.

NRS 176.2155 pertains to residential confinement of an alleged probation violator by parole and probation pending preliminary inquiry. NRS

176.2231 - .2237 pertain to the court-ordered residential confinement of a person who violates a condition of his probation, in lieu of imposing the

sentence to be executed. NRS 213.15105, 213.15193, 213.152-.1528 pertain to residential confinement of a parole violator by the parole board either

pending inquiry or in lieu of suspending his parole and returning him to confinement.

In short, chapter 209 does not specifically refer to, nor does it exclude, residential confinement

or intensive supervision as a condition of probation where execution of a sentence of imprisonment

has been suspended pursuant to NRS 176.185. However, the Nevada Supreme Court has held that

where probation is revoked, a person is not entitled to credit against a prison sentence for time

served in residential confinement. "[A person] is not entitled to credit for time spent on probation

outside of incarceration. Van Dorn v. Warden, 93 Nev. 524, 569 P.2d 938 (1977). The imposition

of residential confinement as a condition of [a person's] probation is insufficient to change the

character of his probation from a conditional liberty to actual confinement." Webster v. State, 109

Nev. 1084, 1085, 864 P.2d 294 (1993).

Review of the relevant statutes indicates that NRS 209.446 pertains to offenders who have

served in residential confinement pursuant to NRS 209.429 under the control and direction of the

Nevada Department of Prisons. Inmates on probation are not under the control and/or custody of

the Nevada Department of Prisons.

CONCLUSION TO QUESTION ONE

NRS 209.446 does not apply to persons who have been sentenced by a court to probation with

a condition of residential confinement. Offenders who have served time in residential probation as

a condition of probation are not entitled to credit against their prison sentence when probation is

revoked.

QUESTION TWO

Is residential confinement as a condition of probation considered time served prior to

conviction, entitling an inmate to credit, as in NRS 176.055?

ANALYSIS

Under NRS 176.055, a defendant may have credit against a sentence of imprisonment for time

served in confinement prior to conviction of a crime. NRS 176.055(2) provides:

A defendant who is convicted of a subsequent offense which was committed while he

was:

. . . .

(b) Imprisoned in a county jail or state prison or on probation or parole from a Nevada

conviction is not eligible for any credit on the sentence for the subsequent offense for the

time he has spent in confinement which is within the period of the prior sentence,

regardless of whether any probation or parole has been formally revoked.

This statute makes it clear that a person is not entitled to credit for confinement which resulted

from an unrelated offense. If a person is convicted of a subsequent offense while he is on

probation, he is not entitled to credit for any time served prior to conviction of the subsequent

offense during the period of probation. Thus, it follows that a person who spends time in

residential confinement as a condition of probation would not be entitled to credit for that time

served prior to conviction of a subsequent offense because the residential confinement resulted

from an unrelated offense and is excluded from sentence credit by NRS 176.055. "Only

incarceration pursuant to a charge for which sentence is ultimately imposed can be credited against

that sentence." McMichael v. State, 94 Nev. 184, 194, 577 P.2d 398, 404 (1978). "NRS 176.055

exempts from sentence credit 'confinement . . . pursuant to a judgment of conviction for another

offense.'" Dearing v. State, 90 Nev. 297, 298, 525 P.2d 601 (1974); see also Webster v. State, 109

Nev. 1084, 864 P.2d 294 (1993) (defendant whose probation is revoked is not entitled to credit for

time spent on probation outside of incarceration).

CONCLUSION TO QUESTION TWO

Residential confinement as a condition of probation is not considered time served prior to

conviction entitling an inmate to credit under NRS 176.055.

FRANKIE SUE DEL PAPA

Attorney General

By: CAMERON P. VANDENBERG

Deputy Attorney General

__________

OPINION NO. 96-15ETHICS; FINANCIAL DISCLOSURE: Department heads and staff

directors who serve at the pleasure of the county manager and county board of supervisors do not

need to file financial disclosure statements pursuant to NRS 281.561.

Carson City, May 28, 1996

Mr. S. Mahlon Edwards, County Counsel, Office of the District Attorney

Post Office Box 552215, Las Vegas, Nevada 89155-2215

Dear Mr. Edwards:

You have asked whether employees of Clark County who are designated department heads and

staff directors are "public officers" under NRS 281.4365 so that they would be required to file

financial disclosure statements as required by NRS 281.561. The brief answer to your question is

that such employees do not need to file financial disclosure statements. Our analysis follows.

QUESTION

Are Clark County's department heads and staff directors "public officers" as defined in NRS

281.4365 who would be required to file financial disclosure statements pursuant to NRS 281.561?

ANALYSIS

In Op. Nev. Att'y Gen. No. 193 (September 3, 1975) (AGO 193), this office opined the

definition of "public officer" under NRS 281.005 and an earlier version of the Nevada Ethics in

Government Law. In that opinion, we discussed the difference between public officers and public

employees in pertinent part as follows:

Persons who hold the position of deputies and assistants in state and local government

agencies would also be considered employees, because they may exercise only such

authority and powers as their principals may see fit to grant them. It is true that many

statutes which authorize positions for deputies and assistants state that they may exercise

all the powers of their principals, but the principal has the responsibility for the agency and

may permit the deputies or assistants to exercise full or only such partial authority as he

sees fit. Exercise of the authority, in other words, depends upon the will or pleasure of the

principal. As such, a deputy or assistant is wholly subordinated and responsible to his

superiors.

Neither passage of time nor the slight differences between NRS 281.005 and NRS 281.4365

require us to alter our analysis in AGO 193. It is clear from Clark County Code 2.40.100 that

Clark County's department heads and staff directors are not "public officers" under NRS 281.4365

because, like the deputies and assistants discussed in AGO 193, their authority is dependent upon

"the will or pleasure of the principal," i.e., the county manager and the county commission.

Therefore, Clark County's department heads and staff directors need not file financial disclosure

statements according to NRS 281.561.

CONCLUSION

Clark County's department heads and staff directors are not "public officers" under NRS

281.4365 and are not required to file financial disclosure statements according to NRS 281.561.

FRANKIE SUE DEL PAPA

Attorney General

By: LOUIS LING

Deputy Attorney General

__________

OPINION NO. 96-16COUNTIES; ELECTIONS; SECRETARY OF STATE: Procedures to

follow to fill county office if county officer dies.

Carson City, June 25, 1996

Mr. Leon Aberasturi, Deputy District Attorney, Office of the Lander County District Attorney,

Post Office Box 187, Battle Mountain, Nevada 89820

Dear Mr. Aberasturi:

You have requested an opinion from this office regarding the procedure for filling a vacancy

occurring in the office of the county assessor.

FACTS

The office of Lander County Assessor has recently become vacant due to the death of the

assessor. The office of county assessor has not been designated "nonpartisan."

NRS 245.150 requires the clerk of the board of county commissioners to certify to the

Secretary of State that a vacancy has occurred in a county office and the county commissioners

declare the office vacant. NRS 245.160. The procedure for filling the vacancy is found in NRS

250.040 which provides as follows:

In case of a vacancy in the office of the county assessor . . . the board of county

commissioners shall appoint some suitable person possessing the qualifications of an

elector, residing within such county, to fill the vacancy. The person thus appointed shall

give bond and take the oath of office prescribed by law that is required of county assessors

elected by the people, and shall hold his office until the next ensuing biennial election.

The office of county assessor would not normally appear on the ballot in 1996. The official

declaration of the vacancy did not occur until after the statutory close of filing, June 4, 1996. NRS

293.177(1).

QUESTION ONE

May the county commissioners consider the political party of the applicants who apply to fill

the position of county assessor?

ANALYSIS

The language in NRS 250.040 is clear as to the qualifications of a suitable person to be

appointed as county assessor. The person must be a qualified elector and must reside within the

county. A "qualified elector" is defined in article 2, § 1 of the Nevada Constitution and is not

synonymous with "qualified voter." Caton v. Frank, 56 Nev. 56, 71-72, 44 P.2d 521 (1935); State

ex rel. Schur v. Payne, 57 Nev. 286, 291-92, 62 P.2d 921 (1937). Registering to vote is not a

criterion to be a qualified elector. Id.

Membership in a political party is not a qualification for a person to be appointed as the county

assessor.

CONCLUSION TO QUESTION ONE

The county commissioners may not consider the political party of the applicants who apply to

fill the position of county assessor.

QUESTION TWO

Must the vacancy be filled in the general election set in November 1996?

ANALYSIS

NRS 250.040 is clear the person appointed county assessor will only hold the position until the

next biennial election. The next biennial election is the general election in November 1996. The

county commissioners can fill the vacancy by appointment, but the appointee will only hold the

position until the general election. As a practical matter, the appointee will hold office until

January 6, 1997. NRS 250.010(2) and 245.170.

The person elected county assessor at the general election in November 1996 will hold office

for the remainder of the unexpired term. NRS 250.010(2); Op. Nev. Att'y Gen. No. 237

(November 9, 1918).

CONCLUSION TO QUESTION TWO

The office of county assessor must be filled by election at the general election in November

1996.

QUESTION THREE

What are the procedures for candidates to use to place their names on the general election

ballot?

ANALYSIS

Normally, a candidate files a declaration of candidacy with the appropriate filing officer. The

filing deadline for major party candidates to file a declaration of candidacy was June 4, 1996. NRS

293.177(1). The filing deadline for minor party candidates to file a declaration is July 3, 1996.

NRS 293.1725(3). And the deadline for independent candidates is also July 3, 1996. NRS

293.200(10).

Since the vacancy was certified after the close of filing for major party candidates, the

procedure outlined in NRS 293.165(1) should be followed for major parties to nominate a

candidate for this office. The county central committee for the major parties may designate a

candidate whose name will appear on the general election ballot. This designation must be made

by September 10, 1996. NRS 293.165(5).

Minor parties which are qualified to place names of candidates on the general election ballot

pursuant to NRS 293.1715(2)(a) or (b) may nominate a candidate by submitting the name of the

candidate to the Secretary of State by June 28, 1996. NRS 293.1725(1)(b). The candidate must

then file a declaration of candidacy by July 3, 1996. NRS 293.1725(3).

Other minor parties not qualified for ballot access may nominate a candidate by submitting the

name of the candidate to the Secretary of State by June 28, 1996, and following the petition

procedure in NRS 293.1715. The petition for minor party ballot access must be submitted for

signature verification by July 11, 1996. NRS 293.172(1)(c).

Independent candidates may also file for this office. An independent candidate must file a

declaration of candidacy by July 3, 1996, (NRS 293.200(10)) and submit an independent candidate

petition for signature verification to the county clerk by July 11, 1996. NRS 293.200(2) and (4);

NRS 293.1276-.1279.

CONCLUSION TO QUESTION THREE

The procedures for candidates to use to place their names on the general election ballot are as

follows: major party candidates are nominated by the major party county central committee by

September 10, 1996; minor party candidates file a declaration of candidacy by July 3, 1996, (if the

minor party is not qualified for ballot access, a minor party petition must also be submitted by July

11, 1996); and independent candidates must file a declaration of candidacy by July 3, 1996, and

submit an independent candidate petition by July 11, 1996.

FRANKIE SUE DEL PAPA

Attorney General

By: KATERI CAVIN

Deputy Attorney General

__________

OPINION NO. 96-17TAXES; LOCAL GOVERNMENT; PUBLIC UTILITIES; FEES: The state

and its agencies are immune from paying the franchise taxes or fees imposed by local governments

on public utility companies providing services within the county or incorporated city pursuant to

NRS 244.335(1)(b) and NRS 268.095(1)(a) and billed to the state as a customer of the utility in the

absence of a specific statutory waiver of that immunity. The state and its agencies are not immune

from bearing the economic burden of a franchise fee imposed on a utility under the provisions of

NRS 709.110 and NRS 709.230.

Carson City, July 1, 1996

Mr. John P. Comeaux, Director, Department of Administration, Capitol Complex, Carson City,

Nevada, 89710

Dear Mr. Comeaux:

In your memorandum of February 8, 1996, to this office you indicated your office has received

inquiries about various “franchise” fees or local taxes that are separately described on bills for

services provided by various local utilities to state agencies. These fees and taxes have been

routinely paid by the state in the past. You provided this office with several examples of bills

received from utility companies which depict separate charges for a franchise fee or a local tax in

addition to the charge for provided services. Accordingly, you have requested an opinion from this

office on the following question:

QUESTION

Are state agencies exempt from paying franchise fees or similar types of local taxes or fees that

are passed on by local utility companies in their bills for services provided to the state agencies?

ANALYSIS

Local governments are empowered to grant franchises to utility companies pursuant to

provisions of ch. 709 of the Nevada Revised Statutes. Under the franchise agreement with the

local government, a utility is required to make a payment to the county school district fund of an

amount equal to 2 percent of its net profits. See NRS 709.110; NRS 709.230.

Local governments are also authorized by statute to “fix, impose and collect a license tax for

revenue or for regulation, or for both revenue and regulation, on [all] trades, callings, industries,

occupations, professions and businesses.” NRS 244.335(1)(b); NRS 268.095(1)(a). This authority

includes imposing license taxes on utility companies operating in the city or county for the purpose

of raising revenue, unless the specific franchise agreement between the local government and the

utility precludes them. See City of N. Las Vegas v. Cent. Tel. Co., 85 Nev. 620, 622-23, 460 P.2d

835-36 (1969).

In 1995 the legislature enacted legislation designed to clarify ch. 354 of Nevada Revised

Statutes pertaining to authority of local governments to impose license fees and taxes on public

utilities operating in the local jurisdiction. See Act of July 5, 1995, ch. 591, §§ 1-11, 1995 Nev.

Stat. 2187. The amount of the business license fee on public utilities that a local government may

impose is limited by provisions of NRS 354.59883. The total measure of all fees (as defined in

NRS 354.59881(2)) can be no more than 5 percent of the gross revenues that the utility derives

from services provided within the jurisdiction of the city or county. NRS 354.59883(3)(b). The

ordinance imposing the fee cannot alter the terms of any franchise agreement between the local

government and the utility. NRS 354.59883(1).

It is apparent that the fees which local governments are authorized to impose on public utilities

are intended primarily for general revenue raising purposes, not for the purpose of regulating these

industries. Accordingly, these fees are in substance “taxes” designed for the general support of the

local government. See Cotton States Mut. Ins. Co. v. DeKalb County, 304 S.E.2d 386, 387 (Ga.

1983); Consol. Coal Co. v. Emery County, 702 P.2d 121, 123 (Utah 1985); Chesapeake &

Potomac Tel. Co. v. City of Morgantown, 105 S.E.2d 260, 272-73 (W.Va. 1958).

NRS 354.59887 governs how the fees imposed on public utilities are to be collected as follows:

1. The entire amount of any fee to which the ordinance applies must be imposed at the

same rate upon each public utility that provides similar services within the jurisdiction of

the city or county.

2. The city or county:

(a) Shall require the quarterly payment of all fees imposed upon each public utility to

which the ordinance applies.

(b) May, to the extent it determines that it is impracticable to collect from a public utility

to which the ordinance applies any of the fees it imposes upon the public utility, collect any

of those fees directly from the customers of the public utility located within the jurisdiction

of the city or county in proportion to the amount of revenue the public utility derives from

each of those customers.

interest of not more than 2 percent per month of the delinquent amount of any fee to which

the ordinance applies. If a city annexes any land, it may not assess any penalties or interest

pursuant to this paragraph regarding any fee imposed for the operation of a public utility

within the annexed land during any period:

(1) Before the effective date of the annexation; or

(2) More than 30 days before the city provides the public utility with notice of the

annexation, whichever occurs later.

3. A public utility to which the ordinance applies shall, except for any fees collected by

the city or county pursuant to paragraph (b) of subsection 2, collect the aggregate of all its

fees imposed by the city or county directly from its customers located within the

jurisdiction of the city or county in proportion to the amount of revenue the public utility

derives from each of those customers. The fees may be shown on a customer's bill

individually or collectively.

Terms of this statute suggest the legislature envisioned a collection scheme whereby the fees

imposed on public utilities would be borne ultimately by customers of the public utilities. The

statute even provides for a local government to collect the fees directly from the customers of the

utility if it is “impracticable” to collect them from the utility. Accordingly, under the recently

enacted statutory scheme, the local government could bill the state directly for the fees it ostensibly

imposes on the public utilities. There are no statutes in chs. 354, 244, or 268 of Nevada Revised

Statutes that specifically exempt a federal, state, or local governmental entity from paying any of

utility franchise fees, taxes or license fees, or taxes imposed by local governments that are passed

through to the government as a consumer of those services by the utility. However, the issue to

resolve is not whether the state is exempt from paying these fees, but whether the state is immune

under principles of sovereign immunity from paying these fees.

There is a presumption that the legislature does not intend to subject publicly owned property

to taxation by the state or local governments, and that such property is impliedly immune from

taxation unless an intention to tax such property is clearly manifested. State v. Lincoln County

Power Dist., 60 Nev. 401, 407, 111 P.2d 528, 530 (1941). The weight of authority seems to

indicate that in those jurisdictions that recognize an implied state immunity from taxation in the

absence of express statutory authority, the same is true of excise taxes imposed by a local

government on the state or its political subdivisions. King County v. City of Algona, 681 P.2d

1281, 1283 (Wash. 1984); City of Tempe v. Ariz. Bd. of Regents, 461 P.2d 503, 504 (Ariz. App.

1969); Dickinson v. City of Tallahassee, 325 So.2d 1, 3 (Fla. 1975); Commonwealth Edison Co. v.

Community Unit Sch. Dist. No. 200, 358 N.E.2d 688, 692 (Ill. App. 1976); cf. Waukegan

Community Unit Sch. Dist. 60 v. Waukegan, 447 N.E.2d 345, 350-51 (Ill. 1983) (wherein the court

explained that in Illinois there is no established concept of implied state or local governmental

immunity from taxation, including property tax). While the legislature typically has indicated its

intent by expressly exempting state and local governments from those taxes it believes these

governments should be exempted from, including property taxes (see, e.g., NRS 372.325, NRS

361.055, NRS 361.060, and NRS 364A.020(3)(b)), under sovereign immunity analysis reliance on

a statutory exemption is immaterial. Dickinson, 325 So.2d at 3; King County, 681 P.2d at 1283.

Thus, absent an express waiver of that immunity by statute or constitutional provision, a local

government is generally held to be without the power to impose a tax on the state. Dickinson, 325

So.2d at 3 (a case invalidating a local ordinance that imposed a 10 percent tax on the purchase of

utility services as applied to purchases made by state agencies); but see Manhattan & Queens Fuel

Corp. v. County of Nassau, 497 N.Y.S.2d 843 (N.Y. App. Div. 1986), (wherein the court reviewing

legislative history of a state fuel tax concluded legislature intended to tax fuel sales to state

agencies).

The next issue is whether the statutory scheme for the business license fees on public utilities

constitutes a tax imposed on the state agencies. This issue requires a consideration of where the

legal incidence of the tax falls. While the statutory scheme in NRS 354.59887 places the primary

burden of collecting and remitting the fee on the public utilities, there are two aspects of this statute

that suggest the true legislative intent was to lay this tax on the utility customers. First, the statute

requires the utilities to pass on the fees to their customers. Second, the customers of the public

utilities may be billed for the fees directly by the local government if it is impracticable to collect

the fees from the utility. This latter provision might be applicable in the situation where the

franchise agreement between the local government and the utility prohibits imposition of a license

fee on the utility in addition to the franchise fee provided for in NRS 709.110 and NRS 709.230. It

is uncertain whether this provision would authorize the local government to pursue collection from

the customers whenever payment was not received from the utility. However, the legislative

history of this statute does not reveal any statements that explain why this provision was included.

In Commonwealth Edison, a case involving a municipal utility tax, the court concluded that

where the statute specifically levied the tax on the utility companies, the legal incidence falls on the

utilities, despite the fact that the economic burden of the tax was contemplated to be passed on to

the customers of the utilities. The court noted that if the tax is not remitted by the utility, the city

cannot pursue collection from the customers. The court also noted that the pass-through was not

actually required by law, even though it is passed through in practice. Thus, the municipal utility

tax examined in Commonwealth Edison was held to be valid because the pass-through of the tax

was not mandatory, nor was the city given statutory authority to collect the tax directly from the

customers (for example, the state.) Commonwealth Edison, 358 N.E.2d at 692-93. On the other

hand, in First Nat'l Bank of Stillwater v. Oklahoma ex. rel. Tax Commission, 466 P.2d 644, 646

(Okla. 1970), the court held that the legal incidence of the Oklahoma sales tax fell on the purchaser

where the vendor was statutorily required to collect the tax from the purchaser.

The Nevada sales tax is imposed on retailers of tangible personal property. NRS 372.105.

However, the tax is to be collected from consumers insofar as it can be done. NRS 372.110. The

Nevada Supreme Court has implied in the sales tax context that the legal incidence of the tax is on

the purchaser, at least where the federal government is the purchaser of tangible personal property.

As a result, the court held that the sale could not be taxed due to the constitutional immunity of the

federal government from state taxation. See Scotsman Mfg. Co. v. State, Dep't of Taxation, 107

Nev. 127, 134, 808 P.2d 517, 521 (1991), cert. denied 502 U.S. 1100, 112 S. Ct. 1184 (1992).

Given the obvious legislative mandate for the customers of the utilities to bear the burden of

paying the business license fees on utilities imposed under NRS 244.335(1)(b), NRS

268.095(1)(a), and NRS 354.59881-.59889, inclusive, it is our opinion that the state and its

political subdivisions are immune from having to remit these fees either to the utility companies or

to the local governments directly in the absence of an express waiver of that immunity by the

legislature. On the other hand as a result of the absence of any statutory requirement to collect

franchise fees from its customers, to the extent that the economic burden of franchise fees imposed

under the provisions of NRS 709.110 and NRS 709.230 are passed on to the state as a customer of

a utility, the state is not immune from paying them.

CONCLUSION

The state and its agencies are immune from paying the franchise taxes or fees imposed by local

governments on public utility companies providing services within the county or incorporated city

pursuant to NRS 244.335(1)(b) and NRS 268.095(1)(a) and billed to the state as a customer of the

utility in the absence of a specific statutory waiver of that immunity. The state and its agencies are

not immune from bearing the economic burden of a franchise fee imposed on a utility under the

provisions of NRS 709.110 and NRS 709.230.

FRANKIE SUE DEL PAPA

Attorney General

By: JOHN S. BARTLETT

Senior Deputy Attorney General

__________

OPINION NO. 96-18TAXES; PENALTIES; PROPERTY: A person who seeks relief from

penalties imposed pursuant to provisions of NRS 361.483 must make application to the Nevada

Department of Taxation. The Nevada Department of Taxation has the sole authority by statute to

consider waiver or reduction of tax penalties imposed under NRS 361.483.

Carson City, July 3, 1996

Mr. James I. Barnes, Deputy District Attorney, Washoe County District Attorney's Office, Post

Office Box 11130, Reno, Nevada 89520

Dear Mr. Barnes:

By your letter of May 14, 1996, you have informed me that an issue has arisen with respect to

whether a person who wishes to assert a claim for refund of a property tax penalty must file the

claim with the Nevada Department of Taxation. In that regard, you have requested an opinion

from this office in answer to the following question:

QUESTION

Must a person who desires to seek a waiver or refund of a property tax penalty file a claim with

the Nevada Department of Taxation?

ANALYSIS

Property taxes are imposed pursuant to provisions of ch. 361 of Nevada Revised Statutes.

According to NRS 361.483, property taxes on real property may be paid in installments as

provided in that statute. Failure to make a timely installment payment of property taxes subjects

the taxpayer to a penalty of 4 to 7 percent. NRS 361.483(5). Failure to pay property taxes on a

mobile home results in imposition of penalties of 10 percent or more. NRS 361.483(6). The ex

officio tax receiver for each county is required to notify every person who may be subject to the

penalties imposed pursuant to the foregoing sections of NRS 361.483 of the existence of the

person's rights to seek relief under NRS 360.410 and NRS 360.419. See NRS 361.483(7).

In accordance with NRS 361.483(7), the Washoe County Treasurer places the notice on each

tax bill mailed. However, apparently the treasurer still receives petitions from taxpayers who seek

a reduction or elimination of penalties imposed due to late payment of taxes. In accordance with

past practice the treasurer forwards the petition to the district attorney.

No statutory authority exists which permits the tax receiver to accept or reject taxpayer

petitions to reduce or eliminate property tax penalties imposed under NRS 361.483. The

legislature has clearly indicated its intent that taxpayers file their petition for relief from property

tax penalties with the Nevada Department of Taxation pursuant to provisions of either NRS

360.410 or NRS 360.419. The former statute states:

1. If the department finds that a person's failure to make a timely return or payment of a

tax imposed by this Title, except for chapters 364, 366 and 371, is due to circumstances

beyond his control and occurred notwithstanding the exercise of ordinary care and in the

absence of willful neglect, the department may relieve such person of all or part of any

penalty imposed.

2. Any person seeking relief from such penalty shall file with the department a statement

under oath setting forth the facts upon which he bases his claim for relief.

NRS 360.410(2) clearly establishes that persons seeking relief from property tax penalties must

file a statement with the Nevada Department of Taxation. NRS 360.419 states:

1. The department may, for good cause shown, waive or reduce the payment of the

interest or penalty, or both, on any tax which is owed to the state or to a county by any

person. The department shall, upon the request of any person, disclose the:

(a) Name of the person whose interest or penalty was waived or reduced; and

(b) Amount so waived or the amount of the reduction.

2. This section applies to all taxes imposed under this Title except for those imposed

pursuant to chapter 364, 366, 371 or 375 of NRS.

This statute allows the Department to waive or reduce both penalties and interest. Both NRS

360.410 and NRS 360.419 apply to ch. 361 of Nevada Revised Statutes.

The Nevada Tax Commission has adopted regulations to administer both NRS 360.410 and

NRS 360.419, and these regulations set forth the standards by which the department will adjudge

applications for relief from tax penalties and interest. Accordingly, it is the opinion of this office

that the legislature intended persons seeking relief from penalties imposed under provisions of

NRS 361.483 to make application to the Nevada Department of Taxation, not to the county

treasurer.

CONCLUSION

A person who seeks relief from penalties imposed pursuant to provisions of NRS 361.483 must

make application to the Nevada Department of Taxation. The Nevada Department of Taxation has

the sole authority by statute to consider waiver or reduction of tax penalties imposed under NRS

361.483.

FRANKIE SUE DEL PAPA

Attorney General

By: JOHN S. BARTLETT

Senior Deputy Attorney General

__________

OPINION NO. 96-19MANUFACTURED HOUSING; MOBILEHOMES: Municipal or other

local government ordinances, which establish a maximum pier height for installation and erection

of mobile and manufactured homes that is more stringent than the requirements of NAC 489.420,

violate NRS/NAC chapter 489 and are superseded by NRS 489.288.

Carson City, July 3, 1996

Ms. Renee Diamond, Administrator, Manufactured Housing Division, 2501 East Sahara Avenue,

Suite 204, Las Vegas, Nevada 89158

Dear Ms. Diamond:

You have requested our opinion on the following question:

QUESTION

Do certain Washoe County Development Codes, which establish a maximum pier height for

installation and erection of mobile and manufactured homes that is more stringent than

requirements of NAC 489.420, violate NRS/NAC chapter 489 and are they superseded by NRS

489.288?

ANALYSIS

NRS 489.231, 489.235, 489.241, 489.251, and 489.261 authorize the Administrator of the

Manufactured Housing Division of the Department of Business and Industry, State of Nevada

(Division), to adopt regulations establishing standards of safety and construction with respect to

mobile and manufactured homes installed or erected in this state.

NRS 489.288 allows a local governing body to adopt its own ordinances and regulations

regarding mobile and manufactured homes, provided they are not more stringent than provisions of

NRS chapter 489 and other applicable federal or state regulations. NRS 489.288 provides in full:

1. A local governing body may adopt ordinances and regulations which, except for

ordinances and regulations regarding any prerequisites to the classification of a

manufactured home or mobile home as real property pursuant to NRS 361.244, are no more

stringent than the provisions of this chapter, the regulations adopted pursuant to this chapter

and applicable federal statutes and regulations. Compliance with an ordinance or regulation

of a local governing body does not excuse any person from compliance with this chapter

and the regulations adopted pursuant to this chapter.

2. The provisions of this chapter and the regulations adopted pursuant to this chapter

supersede and preempt any ordinance or regulation of a local governing body that is more

stringent than those provisions, except for an ordinance or regulation regarding any

prerequisites to the classification of a manufactured home or mobile home as real property

pursuant to NRS 361.244.

NAC 489.420 sets forth the State of Nevada's requirements for installing stabilizing systems,

footings, and pier supports of mobile and manufactured homes. NAC 489.420 provides in full:

All used manufactured homes, mobile homes or commercial coaches not installed

pursuant to the manufacturer's installation instruction must be installed according to this

section and NAC 489.425:

1. Footings must be constructed of:

(a) Precast or poured-in-place concrete, not less than 16 inches by 16 inches by 4 inches;

(b) Two concrete pads 4 inches by 8 inches by 16 inches installed side by side; or

load-bearing capacity and resistance to decay or when justified by soil compaction analysis.

2. Steel piers sufficient to carry the weight of the manufactured home, mobile home or

commercial coach must be installed under the supporting frame, spaced at a distance not

exceeding 6 feet on center, with the end piers not farther than 2 feet from the end of the

manufactured home, mobile home or commercial coach. No steel pier may be used unless

it has been approved by the division and has a minimum 3,000 pounds of compressive

strength.

3. Concrete, cinder or pumice block piers sufficient to carry the weight of the

manufactured home, mobile home or commercial coach must be installed under the

supporting frame, spaced at a distance not exceeding 6 feet on center, with the piers not

further than 2 feet from the end of the manufactured home, mobile home or commercial

coach. Concrete, cinder or pumice block piers must be constructed of blocks 8 inches by 8

inches by 16 inches. The cells of the blocks must be vertical and placed perpendicular

(crosswise) to the main frame. All block piers must be topped with a solid concrete, cinder,

pumice or wood cap measuring 8 inches by 16 inches by 2 inches nominal size, or with

other material approved by the division. No other material will be approved unless it

provides equivalent load-bearing capacity and resistance to decay.

4. Block piers more than 40 inches but not more than 80 inches in height must be

constructed by using double tiers with interlocking concrete, cinder or pumice blocks.

Block piers more than 60 inches in height must be constructed of concrete, cinder or

pumice blocks laid in mortar with 1/2-inch reinforcing steel bars inserted vertically and the

cells of the blocks poured solid with concrete.

While NAC 489.420 does not expressly prescribe a maximum height for installation and

erection of mobile and manufactured homes, it does clearly establish specific regulatory

requirements for footings and pier supports for such homes. The regulations do, however, in

subsection (4), reflect that a block pier of a mobile or manufactured home can be more than 40

inches but not more than 80 inches in height. This subsection sets forth the installation

requirements for block piers that fall within this range. NAC 489.420, pursuant to NRS 489.288,

cannot be circumvented or modified, either directly or indirectly, by any local government

ordinance, regulation, or code.

For example, even though NAC 489.420 does not expressly establish a minimum or maximum

height for mobile or manufactured homes, the fact that it does dictate specific footing and pier

support requirements could, in many instances, create certain height allowances that local

ordinances or codes could not circumvent. If the footing and pier requirements of NAC 489.420

cause or allow a mobile or manufactured home's pier to exceed a certain height, no local ordinance

can require a pier height maximum shorter than that pier height which may result when a mobile or

manufactured home is installed or erected in compliance with state regulations.

Washoe County Development Code (WCDC) Article 312, section 110.312.10(f), Article 206,

section 110.206.05(b)(6), and Article 218, section 110.218.35(b)(6), are in violation of NRS

489.288. These local codes provide that the foundation system of a mobile or manufactured home

must be set so that the height at the perimeter does not exceed a maximum of 36 inches as

measured from the bottom of the frame (e.g. support I-beam) to the surrounding finished grade,

with at least one section of the perimeter not exceeding 16 inches in height.

In analyzing technical aspects of NRS and NAC chapter 489, it appears that the WCDC are not

safety related regulations or codes. The WCDC are intended to limit the overall height of mobile

and manufactured homes for aesthetic purposes only. The height restriction of the WCDC are

designed merely to try to avoid a particular mobile or manufactured home from exceeding a height

which the local county government has apparently found to be visually unappealing.

Based on the Division's receipt of comments from the mobile and manufactured home industry

and the general public, it has become readily clear that when a mobile or manufactured home is

installed or erected on a sloping lot (more prevalent in the northern part of the state) in compliance

with provisions of NAC 489.420 that the height of the pier, will, in many instances, exceed 36

inches. The slope of a particular lot many times will require the pier at the lower portion of the

home to be more than 36 inches to make the mobile or manufactured home not only level, but

livable as well.

In other words, the above-referenced articles and sections of the WCDC actually set

requirements that are more stringent than the provisions of NRS chapter 489 and its accompanying

regulations. Because the above WCDC articles and sections are more stringent than NAC

489.420, they are in violation of NRS 489.288. In light of the fact that the legislature saw fit to

adopt a general scheme for the regulation of mobile and manufactured homes, the local control

ceased and the state statutes govern. Lamb v. Mirin, 90 Nev. 329, 526 P.2d 80 (1974). The above

articles and sections of the WCDC are superseded by NRS 489.288.

CONCLUSION

Municipal or other local government ordinances, which establish a maximum pier height for

installation and erection of mobile and manufactured homes that is more stringent than

requirements of NAC 489.420, violate NRS and NAC chapter 489 and are superseded by NRS

489.288. The Washoe County Development Codes set forth above, establish a maximum pier

height for installation and erection of mobile and manufactured homes that is more stringent than

requirements of NAC 489.420. These codes violate NRS and NAC chapter 489 and are

superseded by NRS 489.288.

FRANKIE SUE DEL PAPA

Attorney General

By: JOE S. ROLSTON IV

Deputy Attorney General

__________

OPINION NO. 96-20FIREARMS; WEAPONS; PERMITS: Chapter 202 of the NRS does not

require a permittee to reapply for a concealed weapons permit solely because of a change in

residence from one county to another county within the State of Nevada.

Carson City, July 15, 1996

Mr. J. Michael Memeo, Chief Deputy District Attorney, Elko County District Attorney's Office,

575 Court Street, Elko, Nevada 89801

Dear Mr. Memeo:

This letter is in response to your request for an opinion concerning a concealed weapons permit

issued pursuant to chapter 202 of the NRS.

QUESTION

Does a person have to reapply for a concealed weapons permit if he or she has a current permit

and moves to a different county within the State of Nevada?

ANALYSIS

Although chapter 202 of the NRS does not specifically address the question of whether it is

necessary for a person to reapply for a concealed weapon permit when he or she moves to a

different county within the State of Nevada, the legislative intent is clear.

The maxim "EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS", the expression of one

thing is the exclusion of another, has been repeatedly confirmed in this State. See also: In

re Bailey's Estate, 31 Nev. 377, 103 P. 232 (1909); Leake v. Blasdel, 6 Nev. 40 (1870);

State v. Arrington, 18 Nev. 412, 4 P. 735 (1884); Ex parte Arascada, 44 Nev. 30, 189 P.

169 (1920).

Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237 (1967).

In Bopp v. Lino, 110 Nev. 1246, 885 P.2d 559 (1994), the court recently used this maxim in a

situation analogous to legislative regulation of the power to revoke a concealed weapons permit.

The statute in question provided child "visitation can be granted at three distinct times: (1) in a

divorce decree; (2) in an order for separate maintenance; or (3) upon a petition filed by an eligible

person after a divorce or separation, or upon relinquishment of parental rights." Id. at 1252. The

court held: "Utilizing the maxim of statutory construction expressio unius est exclusio alterius,

those three times are the only times when visitation can be granted under NRS 125A.330." Id.

In reference to concealed weapons permits, NRS 202.366(4) provides: "Unless suspended or

revoked by the sheriff who issued the permit, a permit expires on the fifth anniversary of the

permittee's birthday. . . ." NRS 202.3657(3) details each circumstance under which the sheriff

shall revoke a permit. NRS 202.3657(4) describes the circumstances under which the sheriff may

revoke a permit. NRS 202.3657(5) describes a single circumstance under which the sheriff must

suspend a permit. Neither NRS 202.3657(3), (4), nor (5) include a change of residence from one

county to another as a basis for revoking or suspending a permit.

CONCLUSION

Since the legislature enumerated the circumstances under which a permit shall and may be

revoked and shall be suspended, but did not authorize revocation or suspension based on a change

in residence from one county to another, the permittee does not have to reapply for a concealed

weapons permit solely because he or she changes residence from one county to another county

within the State of Nevada.

FRANKIE SUE DEL PAPA

Attorney General

By: JOHN E. SIMMONS

Senior Deputy Attorney General

__________

OPINION NO. 96-21MARRIAGE; MINISTERS; RESIDENCY; SECRETARY OF STATE: A

minister who has been issued a certificate of permission to perform marriages in his/her county of

residence may perform marriages in other counties of the state.

Carson City, July 25, 1996

The Honorable Stewart Bell, Clark County District Attorney, Post Office Box 552215, Las Vegas,

Nevada 89155-2215

Dear Mr. Bell:

NRS 202.369 provides: "The department may adopt such regulations as are necessary to carry out the provisions of NRS 202.3653 to 202.369,

inclusive." Regulations have been proposed but as of this writing have not been adopted. The proposed regulations do not provide for revocation or

suspension of a permit based upon a change of residence.

You request the opinion of this office on a question concerning the extent of power of certified

ministers to perform marriages.

QUESTION

May a minister who has been issued a certificate of permission to perform marriages in the

minister's county of residence use that certificate to perform marriages in other counties throughout

the state?

ANALYSIS

The Clark County Clerk seeks guidance on whether a minister who has been certified to

perform marriages in another county may enter Clark County in order to perform marriages.

Based upon our review of the statutes and the legislative history, we conclude that once a minister

obtains and holds a valid certificate of permission to perform marriages, that minister may perform

marriage ceremonies in any county within the state.

Under NRS 122.064, a minister must apply in his/her county of residence for a certificate of

permission to perform marriages. The county clerk located where the minister has applied must

review the application to make certain determinations as to the minister's qualifications before

issuing such a certificate. The county clerk must review the application to make sure that the

applicant is a licensed or ordained minister and that the minister has a bona fide congregation.

NRS 122.064(1)(b). The county clerk located where the applying minister resides must also

determine that the applicant's ministry is primarily one of service to his/her congregation or

denomination and that his/her performance of marriages will be incidental to that service. NRS

122.064(3)(a); Paramore v. Brown, 84 Nev. 725, 448 P.2d 699 (1968).

In reviewing the 1967 legislation establishing the statutory language described above, we

found the purpose of the provision was to create a mechanism for determining that ministers were

legitimate and qualified to marry persons. There were no legislative discussions on S. B. 66 (Act

of April 20, 1967, ch. 487, 1967 Nev. Stat. 1289) limiting the marriage practice of certified

ministers solely to their county of residence.

NRS 122.062(1) sets forth in part:

Any licensed or ordained minister in good standing within his denomination, whose

denomination, governing body and church, or any of them, are incorporated or organized or

established in the State of Nevada, may join together as husband and wife persons who

present a marriage license obtained from any county clerk of the state, if such minister first

obtains a certificate of permission to perform marriages as provided in this section and

NRS 122.064 to 122.073 inclusive. [Emphasis added.]

The plain language of NRS 122.062(1) empowers a minister certified in his/her county of

residence to marry persons in other counties. Other statutes creating a statewide notification

process regarding certified ministers support this interpretation.

Once a county clerk has certified a minister to perform marriages under NRS 122.064, the

clerk must notify the secretary of state of the approval. The secretary of state thereafter shall

immediately certify the name of such minister to each county clerk and county recorder in the

state. NRS 122.066. If a county clerk who has issued a certificate to a residing minister has cause

to believe the minister has severed ties with his/her congregation or is unqualified in some other

respect, the county clerk may revoke the certificate for good cause after a hearing. NRS 122.068.

If the minister's certificate is revoked, the county clerk shall inform the secretary of state of the

revocation and the secretary of state shall immediately remove the name of such minister from the

statewide list and shall notify each county clerk and county recorder in the state. NRS 122.068(2).

We believe the secretary of state must add and delete names from this list and maintain notice

with all counties because the ministers could perform marriages in each of the counties. The

apparent purpose of the list is to allow county clerks and recorders to determine the qualification of

a minister entering from another county in order to perform a marriage. There is no other apparent

reason for requiring such a compilation and updating of a statewide list of certified ministers. We

read the secretary of state's notice duties under NRS 122.066 and 122.068 in this manner in order

to avoid rendering parts of those statutes meaningless. See Board of County Comm'rs v. CMC of

Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983).

CONCLUSION

A minister who has been issued a certificate of permission to perform marriages in his/her

county of residence may perform marriages in other counties of the state pursuant to the authority

of that certificate.

FRANKIE SUE DEL PAPA

Attorney General

By: ROBERT L. AUER

Senior Deputy Attorney General

__________

OPINION NO. 96-22ELECTIONS; PUBLIC OFFICERS: Incumbent county and township

officers are eligible to run for election to the office of county commissioner. Such county and

township officers must resign their positions if elected to the office of county commissioner. This

opinion reverses Op. Nev. Att'y Gen. No. 80-20 (June 19, 1980) to the extent it is inconsistent with

this opinion.

Carson City, August 6, 1996

Ms. Madelyn Shipman, Assistant District Attorney, Washoe County District Attorney's

Office, Post Office Box 11130, Reno, Nevada 89520

Dear Ms. Shipman:

We have received your letter of August 5, 1996, requesting the opinion of this office regarding

eligibility of a county officer for the position of county commissioner.

QUESTION

May an incumbent county or township officer run for the office of county commissioner

without resigning his current office?

ANALYSIS

Specifically, your request concerns whether the Director of the Washoe County Parks and

Recreation Department can be a candidate for county commissioner in light of NRS 244.020(2)

which provides: "No county or township officer shall be eligible to the office of county

commissioner." As you point out in your opinion request, in 1980 this office issued a formal

opinion which concluded that the word "eligible" as used in NRS 244.020(2) should be defined to

mean "ineligible to run for election" as well as "ineligible to hold the public office." In light of

more recent case precedent, and as explained below, we hereby reverse Op. Nev. Att'y Gen. No.

80-20 (June 19, 1980) to the extent it is inconsistent with this opinion.

The Nevada Supreme Court in SNEA v. Lau, 110 Nev. 715, 720, 877 P.2d 531, 535 (1994),

construing the Nevada Constitution, held that a provision affecting a candidate's eligibility, if

capable of two reasonable interpretations, should be construed "liberally in favor of the right of the

voters to exercise their electorial choice. . . ." Quoting from Gilbert v. Breithaupt, 60 Nev. 162,

165-66, 104 P. 2d 183, 185 (1940), the Nevada Supreme Court stated:

The right to hold public office is one of the valuable rights of citizenship. The exercise of

this right should not be declared prohibited or curtailed except by plain provisions of law.

Ambiguities are to be resolved in favor of the right of the people to exercise freedom of

choice in the selection of officers. Furthermore, disqualifications provided by the

legislature are construed strictly and will not be extended to cases not clearly within their

scope." [Citations omitted.]

See also Nevada Judges Association v. Lau, 112 Nev. 51, 54, 910 P.2d 898, 901 (1996)

(ambiguities are to be resolved in favor of eligibility to hold office). Attorney General Opinion

No. 80-20 notes the term "eligible" as used in NRS 244.020(2) is capable of two different

definitions under Nevada law, yet does not consider the mandate of Gilbert v. Breithaupt, 60 Nev.

162. The Nevada Supreme Court's conclusion in Gilbert, recently affirmed in SNEA v. Lau,

requires a strict interpretation of NRS 244.020(2). SNEA v. Lau, 110 Nev. 715. Since the term

"eligible" is capable of two interpretations, the ambiguity must be "resolved in favor of the right of

the people to exercise freedom of choice in the selection of officers." Gilbert v. Breithaupt, 60

Nev. 162. Therefore, NRS 244.020(2) must be construed to mean that incumbent county officers

are eligible to run for the office of county commissioner, but must resign if they are elected to that

office.

CONCLUSION

It is the opinion of this office that under NRS 244.020(2), incumbent county and township

officers are eligible to run for election to the office of county commissioner. Such county and

township officers must resign their positions if elected to the office of county commissioner.

FRANKIE SUE DEL PAPA

Attorney General

By: BROOKE A. NIELSEN

Assistant Attorney General

__________

OPINION NO. 96-23ELECTIONS; LOCAL GOVERNMENT; PUBLIC OFFICERS: If voters

approve term limits for state and local officials in November 1996, only periods of service

commencing after November 27, 1996, will be counted as a term for limitation purposes.

"Local governing body" is defined and local offices evaluated to determine to which ones term

limits will apply.

Carson City, August 9, 1996

The Honorable Scott W. Doyle, Douglas County District Attorney, Post Office Box 218, Minden,

Nevada 89423

Dear Mr. Doyle:

You have requested an opinion from this office regarding term limits for state and local public

officials.

BACKGROUND

In 1994 an initiative petition proposing to amend the Nevada Constitution to limit terms for

various state and local public officers qualified for the general election ballot. This ballot measure

was identified as Question 9. The full text of the petition follows. Voters at two consecutive

elections must approve such a ballot question before it becomes law. Nev. Const. art. 19, § 2(4).

Voters in the 1994 general election approved Question 9.

Voters must again approve this

question in the 1996 general election for it to be effective.

Since 70 percent of the voters

approved the question in 1994, the issues raised in this opinion request are relevant, as the

probability of the question passing in 1996 is high.

The initiative proposes to limit terms of service of three groups of elected officials: all state

officers, all judges, and certain local officials. The language of the initiative is clear that all state

officers and all judges are included. However, the language is not clear as to which local officials

are included.

In drafting the explanation and arguments for and against passage that appear on the ballot,

general and inclusive language was used to inform the voters that state and local public officers

were subject to the term limitations of the initiative. Since local judges as well as members of local

governing bodies would be affected by the initiative, the general term local public officers was

used. Also, the initiative petition filed with the Secretary of State is entitled "Initiative to Limit

Terms of State and Local Officers." The question then becomes which local public officers would

be subject to term limitations if the voters again approve the ballot question.

The full text of the initiative petition as filed with the Secretary of State pursuant to NRS

295.015 is as follows:

INITIATIVE TO LIMIT TERMS OF STATE AND LOCAL OFFICERS

EXPLANATION -- Mater is italics or underscored is new;

matter in brackets[] is material to be omitted.

The People of the State of Nevada do enact as follows:

Section 1. Section 3 of article 4 of the constitution of the State of Nevada is hereby

amended to read as follows:

[Sec:] Sec. 3. 1. The members of the Assembly shall be chosen [biennialy] biennially by

the qualified electors of their respective districts, on the Tuesday next after the first

The 1994 General Election Returns supplied by the Secretary of State at page 12 indicates 259,211 votes in favor of Question 9 and 108,780

votes against.

If a majority of voters approve the ballot question, it will become part of the Nevada Constitution upon completion of the canvass of votes by

the Nevada Supreme Court. The canvass will be conducted on November 27, 1996. Nev. Const. art 5, § 4; NRS 293.395(2).

The Nevada Judges Association (Association) filed a lawsuit in 1995 to remove from the ballot that portion of the question pertaining to justices

of the supreme court, district judges, and justices of the peace. The Nevada Supreme Court denied the relief the Association sought, but split the

initiative into two questions: one pertaining to supreme court justices, district court judges, justices of the peace, and all other judges; and the other, to

the other affected elected officials. Nevada Judges Ass'n v. Lau, 112 Nev. 51, 910 P.2d 898 (1996). The court in a footnote clarified: "If either

proposal passes in the 1996 general election, the Constitution will be effectively amended as to the proposal or proposals receiving a majority vote."

Id. 112 Nev. at 904, n.2. The Association petitioned for a rehearing arguing the divided question pertaining to judges required passage in two general

elections before it could be effective. The court denied the rehearing confirming its previous determination that either part of the question only needs

to be approved by the voters in the 1996 general election. Nevada Judges Association v. Lau, No. 26177 (Nev. Apr. 30, 1996) (order denying

rehearing).

Monday in November and their term of office shall be two years from the day next after

their election.

2. No person may be elected or appointed as a member of the Assembly who has served

in that office, or at the expiration of his current term if he is so serving will have served, 12

years or more, from any district of this state.

Sec. 2. Section 4 of article 4 of the constitution of the State of Nevada is hereby amended

to read as follows:

[Sec:] Sec. 4. 1. Senators shall be chosen at the same time and places as members of the

Assembly by the qualified electors of their respective districts, and their term of Office

shall be four Years from the day next after their election.

2. No person may be elected or appointed as a Senator who has served in that office, or at

the expiration of his current term if he is so serving will have served, 12 years or more,

from any district of this state.

Sec. 3. Section 19 of article 5 of the constitution of the State of Nevada is hereby

amended to read as follows:

[Section] Sec. 19. 1. A secretary of state, a treasurer, a controller, and an attorney general,

shall be elected at the same time and places, and in the same manner as the governor. The

term of office of each shall be the same as is prescribed for the governor.

2. Any elector shall be eligible to [either of said] any of these offices[.], but no person

may be elected to any of them more than twice, or more than once if he has previously held

the office by election or appointment.

Sec. 4. Section 11 of article 6 of the constitution of the State of Nevada is hereby

amended to read as follows:

Sec. 11. 1. The justices of the supreme court and the district judges shall be ineligible to

any office, other than a judicial office, during the term for which they shall have been

elected or appointed; and all elections or appointment to any such judges by the people,

legislature, or otherwise, during said period, to any office other than judicial, shall be void.

2. No person may be elected a justice of the supreme court, judge of any other court, or

justice of the peace more than twice for the same court, or more than once if he has

previously served upon that court by election or appointment.

Sec. 5. Section 3 of article 15 of the constitution of the State of Nevada is hereby

amended to read as follows:

[Section] Sec. 3. 1. No person shall be eligible to any office who is not a qualified elector

under this constitution.

2. No person may be elected to any state office or local governing body who has served

in that office, or at the expiration of his current term if he is so serving will have served, 12

years or more, unless the permissible number of terms or duration of service is otherwise

specified in this constitution.

QUESTION ONE

To which offices does the term "local governing body" as used in section 5 of the proposed

initiative apply?

ANALYSIS

Section 5 of the initiative proposes to amend section 3 of article 15 of the Nevada Constitution

by adding language to limit the number of terms members of local governing bodies may serve.

However, the initiative does not define "local governing body."

Courts from various jurisdictions provide guidance. The Minnesota Court of Appeals stated "it

is the power to decide, as opposed to the right to recommend, that determines whether one is a

member of a governing body." Blaine v. Anoka-Hennepin Independent School District, 498

N.W.2d 309, 314 (1993). See also Minnesota Education Association v. Bennett, 321 N.W.2d 395

(1982). The Supreme Court of Georgia in one case described a governing body as a policy-making

apparatus. City of Cave Spring v. Mason, 310 S.E.2d 892, 893 (1984). In another case, the

Supreme Court of Georgia identified a governing authority with performing legislative functions.

The Supreme Court of Florida agrees a governing body would have the last word concerning

policies. Metro-Dade Fire Rescue Service District v. Metropolitan Dade County, 616 So.2d 966

(1993).

The Supreme Court of Virginia characterizes a governing body as having the authority to

legislate by ordinance. Laird v. City of Danville, 302 S.E.2d 21 (1983). The Supreme Court of

Texas agrees a governing body exercises legislative powers. Burch v. City of San Antonio, 518

S.W.2d 540 (1975). The Superior Court of New Jersey also equates governing body with

legislative functions. Mentus v. Town of Irvington, 191 A.2d 806 (1963).

After reviewing these court decisions, it is our opinion a governing body performs legislative

functions, makes policy for the jurisdiction it governs, and makes decisions as opposed to making

recommendations. Applying this definition, we evaluated many different local boards to determine

which are governing bodies whose members would be subject to the term limitations.

Term limits clearly apply to members of a county commission, board of supervisors, or a city

council since these bodies are local governing bodies. The Supreme Court of Delaware, in an

unreported case, characterized the New Castle County Council as the legislative governing body of

the county. Riley v. Moyed, 1986 WL 8169 (Del. July 22, 1986).

It is also equally clear, term limits would not apply to other elected county officials, such as

county clerk, recorder, sheriff, treasurer, assessor, district attorney, and public administrator, since

they are not members of governing bodies. The same conclusion applies to elected city attorneys,

city clerks, and city treasurers

, as well as township constables.

The Minnesota Supreme Court

in McGuire stated the city attorney is not part of the governing body. McGuire v. Hennessy, 193

N.W.2d 313 (1971). Pursuant to various enabling statutes, these elected officials discharge their

duties individually or with the assistance of deputies and staff. See NRS 246.060; 246.030;

247.060; 247.030; 248.090; 248.040; 249.090; 249.010; 249.060; 250.010; 250.060; 252.110;

252.070; 253.040; 253.025; 258.070; 258.060; 266.405; 266.470; 266.480; 266.500; and 266.455.

The nature of these offices does not involve a governing body in performance of duties and

therefore, these officers are not subject to the proposed constitutional term limitations.

However, if an elected official is a member of a group whose function is to govern, that is to

control, direct, or exercise authority over others, or perform legislative or policy making decisions,

then that officer would be subject to the term limitations.

The office of mayor and other local boards are more difficult to analyze. It is not clear whether

mayors are included, nor is it clear which boards within a county would be affected. Mayors have

both executive and legislative duties. Cf. NRS 266.165; 266.190; and 266.200. An examination of

the instrument creating each city is necessary before a conclusion can be reached as to whether a

mayor would be subject to term limits. If the creating instrument indicates the mayor's main

function is to be an administrator for the city, and the mayor does not exercise legislative power as

a member of the city council, then the mayor would not be subject to term limits. If, on the other

hand, the mayor functions as a member of the city council, a governing body, then term limits

would apply to that position as well as to the other members of the city council.

If a city has an auditor who is elected, that auditor would not be subject to term limits.

Term limits would apply to justices of the peace and elected municipal court judges pursuant to section 4 of the initiative petition.

Cities can be created either by special charter or by general law. Nev. Const. art. 8, §§ 1, 8.

General law cities have the authority to create the office of city manager. NRS 266.390(1). These

city managers can have the duties of chief administrator for the city. If such is the case, the duties

performed by the mayor are more legislative in nature, that is, to preside over city council meetings

and exercise legislative power as a member of the council. Therefore, the proposed term

limitations would apply to mayors of general law cities if the office of city manager has been

created and the city manager is the chief administrator for the city. In general law cities with no

city manager and the mayor's duties are executive in nature (i.e., mayor is not voting member of

council), the proposed term limitation would not apply.

The charters of cities created by special charter must be examined on a city by city basis. If the

mayor is appointed, instead of elected, then the mayor is not subject to term limits. If the mayor is

elected, has voting authority, and does not merely preside over council meetings, then the mayor is

a member of the governing body and the number of terms served would be limited. In those cities,

the mayor is part of the governing body that discharges legislative duties for the city.

Carson City is unique in that it is a consolidated city and county government with features

comparable to both cities and counties. The functions performed by members of the board of

supervisors and the mayor are legislative in nature, so the proposed initiative would apply to both

the board members and the mayor.

If members of a town board are elected and perform legislative duties comparable to those in

municipalities, then such members would be subject to term limitations. Citizen advisory council

members would not be subject to the limitation since such offices are appointive and merely

advisory. The same conclusion applies to town advisory boards if the members are appointed.

However, if members of a town advisory board are elected, they would be subject to term

limits. We reach this conclusion even though the board may be denominated the "town advisory

board" since such a board may often have the same attributes as a local governing body. By

statute, a town advisory board may be responsible for providing and managing many town

services, may control expenditures, and may have the authority to promulgate town bylaws and

codes as well as acquire, manage, and improve town property. See NRS 269.575; 269.580;

269.590; 269.595; 269.600; 269.610; and 269.620.

Elected trustees of county school districts would be included in the term limitation due to the

nature of the responsibilities they discharge pursuant to NRS 386.350 and the fact that school

districts are political subdivisions pursuant to NRS 386.010(2). "Elected members of a county

board of education are `members of the legislative body of [a] political subdivision . . . .'" West

Virginia v. West Virginia Public Employees Retirement System, 401 S.E.2d 916, 918 (1991).

Statutory authority exists for creation of other local districts. The test to determine whether

term limits will apply to the directors of such districts is two-fold: (1) Are the directors elected?

and (2) Is the function of the directors legislative in nature? Examples of these types of boards

include: districts created pursuant to the Nevada Improvement District Act, NRS 309.050 and

309.070; general improvement districts, NRS ch. 318; boards of hospital trustees and district

hospitals, NRS ch. 450; county fire protection districts and districts for the control of floods, NRS

ch. 474. An example of a board to which term limits would not apply is an irrigation district.

NRS ch. 539 authorizes creation of irrigation districts. If such a district is created, it is to be

administered by elected directors. NRS 539.045. However, the Nevada Supreme Court has

characterized an irrigation district as a "public corporation" and elaborated that "[t]he district is not

established for political or governmental purposes." In re Walker River Irrigation District, 44 Nev.

321, 339, 195 P. 327, 335 (1921). Subsequent courts have agreed with this reasoning. See

Truckee-Carson Irrigation Dist. v. McLean, 49 Nev. 278, 287, 245 P. 285, 294 (1926); Truckee-

Carson Irrigation Dist. v. Barber, 80 Nev. 263, 266, 392 P.2d 46, 49 (1964).

If such a district has no governmental purpose, then it cannot be a local government for

purposes of the term limitation petition and its directors would not be members of a local

governing body. This conclusion is supported by State of Nevada Employees Ass'n, Inc. which

requires liberal construction in favor of the right of the voters to exercise their electoral choice.

State of Nevada Employees Ass'n v. Lau, 110 Nev. 715, 720, 877 P.2d 531, 535 (1994).

Elected members of the State Board of Education would be subject to the 2-term limitation

pursuant to the language in section 5 of the initiative petition that includes other state elected

officials. NRS 385.021(6) currently imposes a limitation of three terms upon members of this state

board; however, the exemption granted in section 5 of the petition is only for those offices where

the term is already limited by the Nevada Constitution, like the position of governor.

Members of the board of regents would also be subject to the term limitation under the "any

state office" limitation in section 5 of the initiative petition.

If a question arises concerning an elected local position which is not resolved by the guidelines

provided above, this office will issue a supplemental opinion upon request of the district attorney

or city attorney.

CONCLUSION TO QUESTION ONE

The initiative will apply to county commissioners for the reasons that they are elected and

perform a legislative function as members of the county commission, a "local governing body."

The petition will not limit terms of service of the county clerk, recorder, sheriff, treasurer, assessor,

district attorney, and public administrator because they do not perform legislative functions as part

of a "local governing body."

The initiative will also apply to city councils and to mayors in general law cities where city

managers have been appointed, but not to mayors in general law cities where no city manager has

been appointed and the mayor exercises only executive functions. The petition will not limit terms

of service of city attorneys, city clerks, and city treasurers. Nor will it limit terms of township

constables.

For special law cities, the limitation will apply to city council members and those mayors who,

by charter, are part of the city council.

Members of an elected town board would be subject to term limitations, but advisory board

members would not, if they are appointed, not elected. If advisory board members are elected and

perform legislative functions, term limits would apply.

For other districts, the test is whether the directors are elected and whether the function of the

directors as a board is legislative in nature. If the answer to both of these questions is yes, then

term limits would apply. An exception to this is an irrigation district.

QUESTION TWO

How will limitations on elective service be construed and applied should the initiative be

approved by the voters in the general election in November 1996?

This case is discussed more fully in the analysis to the second question of this opinion.

ANALYSIS

If this measure is approved in November, limitations on terms of elective service for most state

and many locally elected officials will be placed in the Nevada Constitution. To answer this

second question, two issues must be resolved: (1) When does the initiative go into effect? and

(2) Which terms of office will be counted under the proposed limitations on service?

The issue of when the initiative goes into effect is controlled by a 1977 opinion issued by the

Nevada Supreme Court. In Torvinen v. Rollins, 93 Nev. 92, 560 P.2d 915 (1977), the court

addressed a similar question regarding the effective date of a constitutional amendment approved

by the voters extending the term of office for district court judges.

In Torvinen the lower court ruled the amendment applied retroactively to all judges holding

office at the time it was adopted, thereby extending their 4-year terms to six years. Id. at 93. The

supreme court reversed, holding "the amendment applies prospectively only to elections held after

its effective date." Id. at 94.

The supreme court reasoned:

We therefore determine a constitutional amendment adopted pursuant to article 16 becomes

effective upon the canvass of the votes by the supreme court. This provides uniformity for

the effective date of amendments adopted pursuant to article 16 and those adopted pursuant

to the initiative procedures of article 19, which specifically mandates such amendments

"become a part of this constitution upon completion of the canvass of voters by the

supreme court." Nev. Const. Art. 19 §2.

As a general rule, a constitutional amendment is to be given only prospective application

from its effective date unless the intent to make it retrospective clearly appears from its

terms. Here, the amendment is void of any term indicating the legislature or electorate

intended retrospective application.

Id. (citations omitted). Accordingly, if the voters approve this term limitation initiative, the

provisions will go into effect on the day of the canvass, November 27, 1996.

The Torvinen case also assists in analyzing the second issue in this question: Which terms of

office will be counted under the proposed limitations on service?

The court in Torvinen applied the general rule that "a constitutional amendment is to be given

only prospective application from its effective date unless the intent to make it retrospective clearly

appears from its terms." Id. The court had previously stated "statutes are presumed to operate

prospectively and shall not apply retrospectively unless they are so strong, clear and imperative

that they can have no other meaning or unless the intent of the legislature cannot be otherwise

satisfied." Holloway v. Barrett, 87 Nev. 385, 390, 487 P.2d 501, 506 (1971).

An examination of the language of the term limitation initiative reveals the petition is not clear

as to when the tenure limitations start. In fact, it is vague and ambiguous on the point of when to

begin counting terms. The Arkansas Supreme Court in U.S. Term Limits, Inc,. v. Hill, 872 S.W.2d

349, 360 (1994) aff'd U.S. Term Limits, Inc. v. Thornton, ___ U.S. ___, 115 S. Ct. 1842 (1995)

noted several other states have adopted term limitation amendments and provided a date certain

from which terms will be counted:

Hill addressed term limitations for state and congressional officers. The U.S. Supreme Court granted certiorari, but limited its review to the

issue of term limits for congressional officers.

--State of Washington. Wash.Rev.Code § 29.15.240 (Supp.1993) (no terms served before

November 3, 1992, may be used to determine eligibility to appear on the ballot) (approved

Nov. 3, 1992).

--State of California. Cal. Const. art. XX, § 7 (applies to terms of state constitutional

officers and legislators where the official was elected or appointed to the office after

November 6, 1990) (adopted Nov. 6, 1990).

. . . .

--State of Colorado. Colo. Const. art. XVIII, § 9a (applies to terms of office in Congress

beginning on or after January 1, 1991) (approved Nov. 6, 1992).

--State of Wyoming. Wyo.Stat. §§ 22-5-103, 22-5-104 (1992) (terms of service in state

offices and in Congress prior to January 1, 1993, shall not be counted) (approved Nov. 3,

1992).

Nevada's term limits initiative does not provide a date after which terms of service will be counted,

although it easily could have stated that it applies to all prior terms of service.

The court in Hill concluded only periods of service commencing on or after the effective date

of the amendment would be counted as a term for limitation purposes. Id. at 361. Besides

applying the rule of statutory construction that constitutional amendments operate prospectively

unless the language used or the purpose of the provision indicates otherwise, the court also

reasoned "with respect to an amendatory act the legislation will not be construed as retroactive

when it may be reasonably construed otherwise. The same rule of construction is equally

applicable to a constitutional amendment." Id. at 361 (citations omitted); see also State v. Dovey,

19 Nev. 396, 399 (1885).

Since the initiative fails to include specific language indicating it is intended to be retroactive in

effect, it must be applied prospectively. This is especially apparent in light of the Nevada Supreme

Court holding: "The right to hold public office is one of the valuable rights of citizenship. The

exercise of this right should not be declared prohibited or curtailed except by plain provisions of

law. Ambiguities are to be resolved in favor of eligibility to office. Gilbert v. Breithaupt, 60 Nev.

162, 165-66, 104 P.2d 183, 185 (1940)." Nevada Judges Ass'n, 112 Nev. at 54.

In 1994, the court addressed the term limitation provision imposed on the governor by article 5,

section 3 of the Nevada Constitution. In holding a governor who had served two "years" of

another governor's term was eligible for reelection since "years" as used in the constitution referred

to "official years" rather than "calendar years," the court stated:

Most importantly, we conclude that the people's ability to choose a governor should not be

restricted by an ambiguous provision. Petitioners should prevail only if the phrase "years

of a term" cannot possibly refer to anything other than "calendar years." If a constitutional

provision is capable of being understood in two or more senses by reasonably informed

persons, it must be liberally construed in favor of the right of the voters to exercise their

electoral choice:

The right to hold public office is one of the valuable rights of citizenship. The

exercise of this right should not be declared prohibited or curtailed except by plain

provisions of law. Ambiguities are to be resolved in favor of eligibility to office . . . .

"Statutes imposing qualifications should receive a liberal construction in favor of the

right of the people to exercise freedom of choice in the selection of officers." Gilbert

v. Breithaupt, 60 Nev. 162, 165-66, 104 P.2d 183, 185 (1940) (quoting 46 C.J.S.

Officers Sec. 32 at 937 (1928)).

State of Nevada Employees Ass'n v. Lau, 110 Nev. 715, 720, 877 P.2d 531, 535 (1994) (citations

omitted).

Since the effective date of the petition would be November 27, 1996, the term limitations will

not apply to affected officials elected in the 1996 general election. If approved, term limits would

be in effect for the 1997 municipal elections, and the 1998 primary and general elections, and so

on.

CONCLUSION TO QUESTION TWO

If the voters approve the Initiative to Limit Terms of State and Local Officers in the general

election in November 1996, only periods of service commencing after November 27, 1996, will be

counted as a term for limitation purposes.

FRANKIE SUE DEL PAPA

Attorney General

By: KATERI CAVIN

Deputy Attorney General

__________

OPINION NO. 96-24BOARD OF PRISON COMMISSIONERS;PRISONS, NEVADA

DEPARTMENT OF: Board is head of Department of prisons, sets policies, and guides the

Director of the Department of Prisons. The Director is responsible for administration, including

budget. Interlocal agreements and contracts are given effect by the Board. The Board need not

hold meetings unless action is required by statute, and it may meet jointly with the Board of

Examiners. Board approval of women's prison under S.B. 278 is not required, but the Department

of Prisons anticipates seeking Board approval under the request for proposal. The Board serves

public interest by guiding prison policies and acting as check on the Director.

Carson City, September 5, 1996

The Honorable Dean Heller, Secretary of State, State of Nevada, Capitol Complex, Carson City,

Nevada 89710

Dear Mr. Heller:

You have requested an opinion from this office in response to various questions regarding the

role and responsibilities of the Board of Prison Commissioners (Board).

QUESTION ONE

What is meant by the term "head of the department" as used in NRS 209.101(2) to describe the

Board?

QUESTION TWO

How does this designation relate to the appointment of the prison director in NRS 209.121 and

the delineation of his responsibilities in NRS 209.131?

QUESTION THREE

Officials elected at the general election on November 5, 1996, but who take office at a later date, are not affected by this opinion.

What is meant by "full control of all grounds, buildings, labor and property of the department"

as stated in NRS 209.111?

The remaining questions will be addressed in the latter part of this opinion.

ANALYSIS AS TO QUESTIONS ONE, TWO, AND THREE

The term "head of the department" as it applies to the Board is not specifically defined in the

Nevada Revised Statutes. However, under the traditional rules of statutory construction, one looks

to the plain language of the statute. Thompson v. Hancock, 49 Nev. 336, 341 (1926). If the

language of the statute is plain and unambiguous, it must be given effect unless to do so would

violate the spirit of the act. In re Application of Filipini, 66 Nev. 17, 24, 202 P.2d 535, 538 (1949).

Where the legislature uses plain ordinary language expressing a definite idea, the court should not

construe the language to convey a different meaning. Eddy v. State Bd. of Embalmers, 40 Nev.

329, 334 (1917). Words are to be given their ordinary meaning if possible. Dumaine v. State, 103

Nev. 121, 125, 734 P.2d 1230, 1237 (1987). Words which have definite and plain meaning retain

that meaning unless clearly not intended. State v. State of Nevada Employees Assn., Inc., 102 Nev.

287, 289, 720 P.2d 697-98 (1986).

The word "head" is generally defined as "a person who leads, rules or is in charge of

something: leader, chief, or director . . . ." American Heritage Dictionary, 606 (2d ed. 1976). The

plain intention of the legislature appears to be that the Board would therefore appear to have

ultimate authority over the Nevada Department of Prisons (NDOP), at least to the extent of the

parameters of its authority under the NRS.

Chapter 209 of the Nevada Revised Statutes governs establishment and operation of the state

prison system. Section 209.101, added in 1977, provides:

1. The department of prisons is hereby created.

2. The head of the department is the board of state prison commissioners.

3. The governor is the president of the board. The secretary of state is the secretary of the

board.

4. Any two members of the board constitute a quorum for the transaction of business.

5. The secretary shall keep full and correct records of all the transactions and proceedings

of the board.

The Board is defined in section 209.021 to mean "the board of state prison commissioners as

defined by section 21 of article 5 of the Nevada Constitution." The Nevada Constitution provides:

The Governor, Secretary of State and Attorney General shall constitute a Board of State

Prison Commissioners, which Board shall have such supervision of all matters connected

with the State Prison as may be provided by law. They 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 against the State (except salaries or compensation of officers fixed by

law) shall be passed upon by the Legislature without having been considered and acted

upon by said "Board of Examiners."

Nev. Const. art. 5, § 21.

Thus, the Nevada Constitution contemplates the legislature will establish the parameters of the

Board's duties. The extent of the powers and duties of the Board as presently constituted are

described in NRS 209.111:

The board has full control of all grounds, buildings, labor, and property of the department,

and shall:

1. Purchase, or cause to be purchased, all commissary supplies, materials and tools

necessary for any lawful purpose carried on at any institution or facility of the department.

2. Regulate the number of officers and employees of the department.

3. Prescribe regulations for carrying on the business of the board and the department.

In State ex rel. Fox v. Hobart, 13 Nev. 419 (1878), the Nevada Supreme Court affirmed that

the powers of the Board are defined by state statute. In Craig v. Hocker, 405 F. Supp. 656, 681-82

(U.S.D.C. Nev. 1975), the United States District Court examined the Nevada Constitution, as well

as the provisions of the Nevada Revised Statutes creating the Board, and concluded that the Board

is primarily responsible for administration of the prison and promulgation of rules and regulations

governing the prisoners, employees, and other persons. To the warden alone, however, is

delegated authority to make rules and regulations governing the "separation and classification" of

prisoners. See NRS 209.270.

These functions are somewhat interrelated.

The Craig court stated:

Prison officials have a very difficult task. In their constant association with social misfits,

faced with insults, threats and danger to the safety of themselves and their employees, they

are apt to acquire a somewhat myopic view of the rights and privileges of prisoners as

citizens and human beings. The Nevada Constitution and statutes place responsibility for

supervision of the prison in a board of prison commissioners. The evident intent is that this

lay board, removed from the difficult problems of prison administration, should review and

pass upon the basic rules and regulations in the light of their own experiences, knowledge

of public affairs, social conscience and legal expertise.

Craig, 405 F. Supp. at 682.

Subsequently, in 1977 the position of Director of the NDOP was established by the legislature

through passage of NRS 209.121, significantly changing the administrative structure of the NDOP:

1. The chief administrative and fiscal officer of the department is the director.

2. The director:

(a) Shall be appointed by the governor.

(b) Is responsible to the board.

field of corrections.

(d) Is entitled to receive an annual salary in an amount fixed by law.

(e) Shall not engage in any other gainful employment or occupation.

NRS 209.121

Under NRS 209.131, the director's responsibilities are as follows:

1. Administer the department under the direction of the board.

2. Supervise the administration of all institutions and facilities of the department.

3. Receive, retain and release in accordance with law offenders sentenced to

imprisonment in the state prison.

At the time of the Craig decision in 1975, the position of Director of the Nevada Department of Prisons had not yet been created; the Warden of

the Nevada State Prison was responsible for the day-to-day administration of prison affairs. The position of director was approved by the legislature

in 1977.

4. Be responsible for the supervision, custody, treatment, care, security and discipline of

all offenders under his jurisdiction.

5. Establish regulations with the approval of the board and enforce all laws governing the

administration of the department and the custody, care and training of offenders.

6. Take proper measures to protect the health and safety of the staff and offenders in the

institutions and facilities of the department.

7. Cause to be placed from time to time in conspicuous places about each institution and

facility copies of laws and regulations relating to visits and correspondence between

offenders and others.

8. Provide for the holding of religious services in the institutions and facilities and make

available to the offenders copies of appropriate religious materials.

In Buckner v. State, 599 F. Supp. 788, 790 (U.S.D.C. Nev. 1984) the court noted the role of the

Director of the NDOP under NRS 209.131(4) as having "direct responsibility 'for the supervision,

custody, treatment, care, security and discipline' of all inmates of Nevada's prisons" and is

"charged with the duty of establishing regulations covering the same subject matter." Id. at 790.

An examination of the growth of the prison population in this state is helpful in understanding

how the respective roles of the Board and the Director have evolved both legislatively and from a

practical standpoint since the days when Nevada was a new state. In 1880, for example, there were

150 inmates, and the annual budget for the NDOP was $175,000. In 1952, 72 years later, the

prison population finally doubled to 300. Only 13 years after that, in 1965, the population doubled

again to 600. Since the early 1970s, the rate of incarceration increased at a phenomenal rate. In

the last ten years alone, the number of inmates has once again doubled from 4,000 (1986) to nearly

8,000 (projected 1996). The annual budget is now approximately $130,000,000, and the NDOP

employs nearly 2,000 officers and staff to manage its correctional facilities. Today, it is one of the

state's largest agencies.

Board minutes from the 1970s and 1980s reveal that much of the Board's time was devoted to

discussing the NDOP's efforts to construct new facilities in which to house the burgeoning inmate

population. Until 1964, the only prison facility in Nevada was the Nevada State Prison in Carson

City. In the mid-1960s, the state added the Nevada Women's Correctional Center and the Northern

Nevada Correctional Center. In 1978 and 1982, respectively, the Southern Nevada Correctional

Center and Southern Desert Correctional Center were opened in the Las Vegas area. Finally, in

1989 Ely State Prison became the state's maximum security facility, and in 1995, the first phase of

the Lovelock Correctional Center opened. During the 1980s, most of the state's conservation

camps and restitution centers were created, now numbering 12.

Since the early days of the prison system, the role of the Board has changed dramatically.

When the prison consisted of a single facility holding no more than a few hundred inmates, the

Board met somewhat more frequently, and almost always for the sole purpose of approving

detailed payments for services, equipment, and supplies (e.g., for thread, stable rent, malt, buckskin

mittens, hogfeed, food for inmate meals, and, on one occasion $5 to a physician for examining the

insane). The warden was a part-time job of the lieutenant governor until 1873 when the board was

empowered to select the warden. Finally in 1977 the legislature created the Director's position,

making it appointed by the governor, and gave the Director the authority to appoint the wardens for

each institution.

Legislation should be construed in light of its purpose and as a whole. 20th Century Hotel &

Casino, Ltd. v. Clark County Fair & Recreation Board, 97 Nev. 155, 156, 625 P.2d 576, 577

(1981); Colello v. Administrator, Real State Div., 100 Nev. 344, 347, 683 P.2d 15, 16 (1984).

Legislative acts should be harmoniously construed where reasonably possible. First American

Title Co. of Nevada v. State, 91 Nev. 804, 806, 543 P.2d 1344, 1345 (1975); Ex Parte Iratacable,

55 Nev. 263, 283 (1934). From the language of the statutes, it may be fairly concluded that the

legislative purpose behind the provisions of chapter 209 concerning the Board and the Director is

that the responsibility for the day-to-day operations of the NDOP rests with the director, subject to

the oversight of the board in the areas described in NRS 209.111.

Consequently, as the size and complexity of the state's prison system has increased, the Board

has approved administrative regulations delegating certain authority to the Director and his staff.

For example, in exercising its authority to control purchasing of "all commissary supplies,

materials and tools" under NRS 209.111(1), the Board has approved regulations specifying the

procedures to be followed by NDOP staff in purchasing items for the department. Administrative

Regulation (AR) 210, adopted August 1, 1992. Other related financial functions necessary to the

day-to-day operation of the NDOP were similarly approved by the board. (See, e.g., AR 200

series).

The Board is also responsible for regulating the number of officers and employees of the

NDOP. NRS 209.111(2). The only instance in which it appears Board action was necessary in

this regard was on January 21, 1992, when it approved personnel layoffs at the Southern Nevada

Correctional Center in an effort to reduce the NDOP budget.

Finally, under NRS 209.111(3), the Board has authority to prescribe regulations for "carrying

on the business of the board and the department." In 1990, the Board approved a regulation which

set forth guidelines for development, review, and approval of administrative regulations. AR 100,

adopted November 6, 1990. Under AR 100, the Director and NDOP staff are responsible for

proposing administrative regulations to the Board for approval. The Director has the authority to

issue Information Bulletins until such time as the board meets to consider a proposed

administrative regulation. AR 100V(F)(3).

CONCLUSIONS TO QUESTIONS ONE, TWO, AND THREE

As the provisions of chapter 209 of the NRS have been interpreted by court decisions and by

application of the rules of statutory construction, the Director of the NDOP is responsible for day-

to-day operations of the NDOP, subject to the oversight of the Board. The Board, under its

authority to adopt regulations for carrying on the business "of the Board and the department," may

delegate these functions to the extent of its statutory authority.

QUESTION FOUR

Should the Board play any role in development of NDOP's budget? I note for your reference

that minutes of the board since 1986 contain no record of it ever having been consulted on budget

issues. Am I therefore to assume that the governor's constitutional authority is supreme in this

regard?

ANALYSIS

As described hereinabove, the powers and duties of the Board as set forth in NRS 209.111 do

not impose upon the Board any specific responsibilities with respect to development of a budget

for the NDOP. The Director, under NRS 209.121, is the chief administrative and fiscal officer of

the NDOP, appointed by the governor and responsible to the Board.

The Board may choose to examine the NDOP budget as part of its role in overseeing purchase

of items necessary to operate the prison system under NRS 209.111(1) and may promulgate

policies or regulations which affect the NDOP budget process. Further, to the extent the Board

regulates the number of officers and employees of the NDOP under 209.111(2), such actions may

impact the budget.

Past Board minutes reflect that the Board has been apprised from time-to-time of the status of

the budget and on one occasion approved a budget reduction in which layoffs of personnel were

recommended pursuant to its statutory obligation to regulate the number of officers and employees

of the NDOP. See Board Minutes of January 21, 1992. Information regarding budgets pending

before the legislature and matters impacting the NDOP's budget have periodically been brought to

the attention of the Board. However, it appears that historically the Board has not required in-

depth budget presentations. For example, in 1981, then Director Wolff stated "it has never been

the policy for the Prison Board to be involved with the budget process before, nor other problem

areas. These have all been traditionally funneled through the Governor's office. He indicated he

would be happy to do so if that were to become the policy of the Board." Board Minutes of

August 25, 1981. Subsequent Board minutes do not reflect that the Board expressed a desire to

adopt such a policy, nor is there an indication that the Board has been refused any requested

information or briefings.

Board participation in development of the NDOP's budget is not a statutory requirement. It

would appear from statutory language that this is the responsibility of the Director. Ultimate

approval of the budget rests with the state legislature.

CONCLUSION TO QUESTION FOUR

The Board is not required by statute to play any role in the development of the NDOP budget.

However, the Board has authority to review and set policies relating to NDOP budget matters, and

is empowered to regulate the number of officers and employees of the NDOP.

QUESTION FIVE

Should the Board approve contracts and/or cooperative agreements? What is the force and

effect of such contracts or agreements if they are entered into without a Board vote?

ANALYSIS

A. Interlocal (Cooperative) Agreements

NRS 277.100, known as the Interlocal Cooperation Act, provides guidelines under which state

and other public agencies may enter into interlocal (or cooperative) agreements with each other for

the most efficient use of governmental resources. NRS 277.110(2) provides:

Any two or more public agencies may enter into agreements with one another for joint or

cooperative action pursuant to the provisions of NRS 277.080 to 277.170, inclusive. Those

agreements become effective only upon ratification by appropriate ordinance, resolution or

otherwise pursuant to law on the part of the governing bodies of the participating public

agencies.

The State Administrative Manual (SAM) summarizes a cooperative agreement as "an

agreement between two or more public agencies for the 'joint exercise of powers, privileges and

authority,' including, but not limited to law enforcement." SAM 0306.0. Interlocal (cooperative)

agreements are not required to be approved by the Board of Examiners, but must be approved as to

form only by the Attorney General's office. The agreement must be filed with the appropriate

county recorder, and with the Secretary of State. NRS 277.140; SAM 0310.0.

State law requires that an interlocal agreement must be ratified by one of several actions which

may be taken by an agency's governing body (in this case the Board). The Board may ratify

through passage of an ordinance, a resolution, or "otherwise pursuant to law" (NRS 277.110). For

example, in Ambulance Service of Reno, Inc. v. Nevada Ambulance Services, Inc., 819 F.2d 910

(9th Cir. 1987), the court held that under Nevada's Interlocal Cooperation Act, cities and counties

could delegate to the district board of health their authority to award an exclusive franchise for the

provision of ambulance services. Another obvious method of vesting authority to approve or ratify

an agreement is by legislative act.

B. Interlocal Contracts

Interlocal contracts are permitted under NRS 277.180(1), which provides:

Any one or more public agencies may contract with any one or more other public agencies

to perform any governmental service, activity or undertaking which any of the public

agencies entering into the contract is authorized by law to perform. Such contract shall be

ratified by appropriate official action of the governing body of each party to the contract as

a condition precedent to its entry into force. Such contract shall set forth fully the

purposes, powers, rights, objectives and responsibilities of the contracting parties.

SAM 0314.0 states: "Interlocal contracts are distinguished from cooperative agreements in that

cooperative agreements are for the 'joint exercise of powers, privileges and authority' by public

agencies, and interlocal contracts are agreements by public agencies to 'obtain a service' from

another public agency."

The statutes governing interlocal contracts do not require approval of the Attorney General's

office as to form, nor is Board of Examiners' approval required. NRS 277.180.

Through approval of AR 212 (Contract Controls, Management, and Monitoring) on March 24,

1988, the Board adopted contract guidelines for NDOP staff. On May 2, 1991, the Board approved

a revision of AR 212, superseding the original version. The purpose of AR 212 is described as

follows: "To establish standardized procedures for the Administrative Office and originators of

contracts within the Department of Prisons. The objective of this procedure is to implement

guidelines for the proper method and standardization of the submission, maintenance and

monitoring of contracts and contract files."

AR 212 provides guidelines to NDOP staff for entering into contracts, including cooperative

agreements, interlocal contracts, and independent contracts and requires staff to adhere to the

procedures set forth in the SAM beginning with section 0300. AR 212(III)(A). The regulation

requires the NDOP Contract Coordinator to obtain approval of the Attorney General's office as to

form for all such documents. AR 212(IV)(C)(5). In addition, the Contract Coordinator is to

"[o]btain contractor's and Assistant Director's [of Support Services] signatures and submit

document with all appropriate attachments to proper authority for final execution to effect

document." AR 212(IV)(C)(6).

The question appears to be whether the Board must approve interlocal (cooperative)

agreements on behalf of the NDOP, whether it has delegated this authority to the director, or

whether the director independently has this authority.

NRS 209.141 provides the Director with independent authority to enter into "agreements with

other governmental agencies and private organizations . . . ." Thus, not only does the Director

under NRS 277.110 have authority to enter into interlocal (cooperative) agreements which must be

ratified by the Board, the Director appears to have been granted this authority by the legislature

through NRS 209.141, which requires that such agreements must be made "with the approval of

the board."

AR 212 does not clearly state who or what is the "proper authority" for final execution of

agreements and contracts. However, since AR 212 requires NDOP staff to follow the procedures

in section 0300 of SAM, it must be assumed that the NDOP is expected to obtain approval (or

ratification) from the Board for interlocal (cooperative) agreements. Therefore, any interlocal

(cooperative) agreement is subject to ratification or approval by the Board.

Should an interlocal (cooperative) agreement be entered into by the NDOP without ratification

by the Board, or where no specific legislative act has authorized the Director to enter into such an

agreement, then under NRS 277.110, the agreement is not effective until ratification occurs.

The question is also asked as to what the "force and effect" might be of an unratified

agreement. In the absence of specific statutory direction addressing this situation, it is likely the

usual principles of contract law would be applied to any dispute between the parties to the

agreement. Each party would be free to request that a court provide equitable relief in the

appropriate circumstances.

It should be noted that during the current biennium, the Attorney General's office has been

conducting a comprehensive study of contract and purchasing procedures for state agencies.

Recommendations for preparation and review of requests for bid proposals, contract negotiation

and drafting, financing, and related functions will be designed to bring uniformity, clarity, and

efficiency to these areas. It is anticipated reorganization of efforts will provide state agencies with

access to the expertise of appropriate state agencies and personnel, and result in better contracts at

less cost to the state.

CONCLUSION TO QUESTION FIVE

Interlocal agreements and interlocal contracts must be ratified through appropriate official

action by the governing body of each party to the contract. Unlike interlocal agreements, there is

no statutory requirement that an interlocal contract must be approved either by the Attorney

General's office or by the Board of Examiners. However, NDOP regulations require its staff to

obtain approval of the Attorney General's office as to form.

QUESTION SIX

Since the same three individuals who comprise the Board—Governor, Secretary of State, and

Attorney General—also comprise the Board of Examiners, are separate meetings of the two bodies

required under either the Open Meeting Law or other state statute in the event both bodies must act

on the same issue?

ANALYSIS

The statute which creates the NDOP and the Board authorizes the Board to transact business,

but does not require the Board to meet any minimum number of times, or at all. NRS 209.101. It

may be inferred from the legislature's silence in this regard that it is left to the discretion of the

president of the Board (the Governor) as to when and whether it is desirable to call a Board

meeting.

Chapter 241 of NRS, commonly known as Nevada's Open Meeting Law, generally provides

that the meetings of all public entities where action is to be taken by a majority of its members are

to be noticed in advance and open to the public. Any action taken by a public entity which has not

adhered to the requirements of chapter 241 is void. NRS 241.036. There is no provision in chapter

241 which requires that any public entities hold meetings, only that certain procedures must be

followed in the event they do.

Section 241.030 of NRS, which states the exceptions to the open and public meeting

requirements, does not exempt the Board. Thus, whenever a Board meeting is called by the

president for the purpose of taking action as defined under NRS 241.015(1), the notice and meeting

requirements of chapter 241 must be met. If no such action is contemplated, then chapter 241 does

not apply.

With respect to the question of whether the Board of Examiners and the Board must hold

separate meetings if both entities must act on the same matter, there does not appear to be any

statute which addresses this question. However, as long as each entity fulfills the requirements of

chapter 241 if action is anticipated (e.g., notice and a meeting open to the public), a joint meeting

of both boards would not appear to violate either the letter or spirit of the Open Meeting Law.

CONCLUSION TO QUESTION SIX

Under the Open Meeting Law, if the President of the Board calls a meeting for the purpose of

taking action pursuant to NRS 241.015(1), the meeting must be noticed and open to the public.

Joint meetings of the Board of Examiners and the Board of Prison Commissioners are permissible.

There is no requirement that the Board hold any minimum number of meetings.

QUESTION SEVEN

Based on state law and/or the request for proposals recently issued by the Department of

Prisons for a new women's correctional facility in southern Nevada, must the Board approve the

selected bid before a contract can be voted upon by the Board of Examiners?

ANALYSIS

Senate Bill 278, which was approved in the 1995 Legislative Session, authorized the director of

the NDOP to enter into a contract for the construction and operation of a new correctional facility

for women in southern Nevada. The bill specifically set forth requirements of the contemplated

contract, prohibited delegation of certain powers of the Director under the contract, and exempted

the contract from the normal state bidding requirements under NRS. Act of March 17, 1995, ch.

656, § 10, 1995 Nev. Stat. 2529.

Section 4 of S.B. 278 requires approval of the amount of the contract by the Board of

Examiners, but not by the Board of Prison Commissioners. The legislature could have required

Board approval, but apparently chose not to do so. Under the rules of statutory construction, the

legislature would have provided language of inclusion if it had so intended. Clark County Sports

Enter., Inc. v. City of Las Vegas, 96 Nev. 167, 174, 606 P.2d (1980). In general, when certain

things have been enumerated by the Legislature, other things are to be excluded. State ex rel. Nev.

Tax Comm'n v. Boerlin, 38 Nev. 39, 45, 144 P. 738 (1914); State ex rel. Leake v. Blasdel, 6 Nev.

40, 44 (1870).

Senate Bill 278 contemplates the Director enter into an agreement with an independent

contractor experienced in the management and operation of private correctional facilities. The

State Administrative Manual delineates the general responsibilities of state agencies with respect to

entering into agreements with independent contractors in sections 0320.0 through 0344.0. In

section 0322.0(2), SAM provides:

The Board of Examiners shall review each contract submitted for approval and consider:

A. Whether sufficient authority exists to expend the money required by contract; and

B. Whether the services which are the subject of the contract could be provided by a state

agency in a more cost effective manner.

There is no reference in SAM or in the NRS to any requirement that the governing board of a

state agency must approve agreements with independent contractors. Only the Board of Examiners

is required to approve such agreements. NRS 284.173(b). Nonetheless, it should be noted that the

NDOP, in its request for proposal issued on January 26, 1996, provided in article IV, section 4.4,

that:

No agreement shall be effective or binding upon the state until it is approved by the

Director of the Nevada Department of Prisons, the Director of the Department of

Administration, the State Public Works Board, the Department of Taxation, the Department

of Administration [sic], the Attorney General, the State Board of Examiners, and the Board

of Prison Commissioners, and reviewed by the Interim Finance Committee.

Thus, the NDOP contemplates requiring approval of various state entities as a condition to be

satisfied before any agreement negotiated by the Director with an independent contractor selected

by him for the southern women's prison will take effect. Inclusion of the above paragraph in the

request for proposal indicates the Director's expectation Board members will be requested to

review and approve the negotiated contract.

There is no requirement either in the NRS or in the request for proposal that the Board or any

other entity must review or approve any of the women's prison proposals submitted to the Director

for his evaluation and consideration. The NDOP, through its Director, was given sole authority

and discretion to select, or not select, a proposal for the purpose of entering into contract

negotiations.

CONCLUSION TO QUESTION SEVEN

The approval of the Board is not required by statute for any contract contemplated under S.B.

278 for construction of a women's correctional facility in southern Nevada. However, under the

terms of the request for proposal issued by the NDOP, Board approval of the final agreement will

be required.

QUESTION EIGHT

If you determine that the Prison Board is a ceremonial or "pass through" entity, what

regulations must be adopted to effectively clarify its responsibilities vis-a-vis those of the Prison

Director? Furthermore, if you reach this conclusion, do you believe Nevadans would be better

served by a constitutional amendment to abolish the Board?

ANALYSIS

In responding to this question, it is helpful to understand the role of the Board as it has evolved

from a historical perspective.

The first territorial prison was established in 1862. The territorial governor appointed Abram

Curry as the first warden that same year. In 1864, the territorial legislature passed an act

establishing a Board of Prison Commissioners, which originally consisted of the secretary of the

territory, the territorial auditor, and the territorial treasurer. In 1864, Robert M. Howland replaced

Curry as warden.

When Nevada's Constitution was adopted in 1864, the members of the Board of Prison

Commissioners included the Governor, the Secretary of State, and the Attorney General; the

Lieutenant Governor was designated the ex officio warden. The warden was to submit monthly

statements of estimated expenditures to the Board, and the secretary of the Board was responsible

for auditing and paying amounts due for prison purchases.

The Board was authorized to arrange for employment of prisoners, to advertise for bids for any

prison supplies, to maintain legal actions to collect money owed for items made or services

performed by prisoners, to post rules regarding visitors to inmates, to determine and regulate which

inmates should be granted credits for work and good behavior, and to appoint a warden in the

event of a vacancy. The Board was required to hold at least one meeting, on the first Monday after

the act was passed, to organize itself and "take charge of the prison." Act of March 4, 1865, ch.

LXIX, § 5, 1865 Nev. Stat. 219.

Little had changed by 1873, when the legislature enacted the following statutory change:

Government of the State Prison of this State shall be under the control of the Board of

State Prison Commissioners . . . who shall have full and exclusive control of, and over, all

the State Prison grounds, buildings, prisoners, Prison labor, Prison property, and all other

things belonging or appertaining to said Prison, and shall establish such rules, regulations,

and by-laws, for the government and regulation thereof, as they may deem proper, and

shall, from time to time, visit the Prison, examine into its affairs and government, and, from

personal observation and conference with the officers, change, alter, or abolish the same,

as, in their judgment, may be found necessary for the well-being thereof.

Act of March 7, 1873, ch. CIX § 1, 1873 Nev. Stat. 181.

The legislature vested in the Board the responsibility to "appoint all necessary help, and have

the general superintendence of the business of the Prison and Prison labor. . . ." Id. at 182. The

Board was to receive a detailed monthly report from the warden, as well as detailed requisition for

clothing, provisions, medicines, stores, and supplies. Id. The Board was given the additional duty

of providing "for the holding of divine services in the State Prison on each Sabbath day . . . a copy

of the Bible, and such other books and papers as may be deemed for the well-being of the

prisoners." Id. at 184.

The legislature required the Board to have one meeting on the first Monday of April 1873 to

select a warden who was subject to removal by the Board at any time, and who would receive a

salary up to $3,000 per year. Id. at 182. The lieutenant governor of the state was thus no longer

designated the ex officio warden of the state prison. Later, in 1893, the legislature further defined

the role of the warden as the "chief executive officer of the Prison, at a salary of two thousand

dollars per annum, and shall reside at the Prison . . . ." Act of March 6, 1893, ch. XCI, § 2, 1893

Nev. Stat. 101. The warden was "subject, at all times, to the order and direction of said Board of

State Prison Commissioners." Id.

Since the legislature's creation of the position of Director in 1977, the Board met on three

occasions in 1978, primarily to approve a Code of Penal Discipline and Manual of Procedures, and

to receive reports on construction. There were three meetings in 1979, and four in 1980. The

Board met five times in 1981, but only once in 1982. The Board, as it was comprised in the 1980s,

held meetings during the period when prison construction was proceeding at a rapid pace (three

meetings in 1983, four in 1984, and five in 1985). There was one meeting in 1986, two in 1987,

three in 1988, six in 1989, three in 1990, two in 1991, three in 1992, one in 1993, and one to date

in 1996. At meetings held during the late 1980s and early 1990s, many of the NDOP's

administrative regulations were adopted and/or revised by the Board.

The Director is appointed by the Governor, and the Governor as President of the Board

determines whether it appears necessary or desirable to call a Board meeting. The NRS does not

require the Board to meet any minimal number of times. Thus, the frequency of Board meetings or

the business conducted would appear to depend on the need to adopt or review administrative

regulations, to approve an increase or decrease in the number of officers and staff, or if the Board

no longer wishes to delegate purchase decisions to the director. Finally, it depends in part upon the

philosophy of the Governor and other members of the Board and the Director.

The type of Board involvement in the administration of prison operations which existed during

the NDOP's early years is no longer appropriate or necessary. The function of the Board today is

more akin to that of a guiding hand for the Director and the NDOP where the need to provide such

guidance or to conduct a review of statewide NDOP regulations or policies arises. Whether the

Board chooses to meet or not, however, it exists to provide an important "check" on the Director of

the NDOP, and to discuss any matters the Board is either statutorily required to, or for other

reasons wishes to, raise at a public forum.

CONCLUSION TO QUESTION EIGHT

As reflected by provisions of NRS chapter 209, the Board provides guidance to the Director

when it deems necessary, rather than involving itself in day-to-day administration of NDOP

activities. The extent to which the Board chooses to meet, to request information from the

Director, and to provide direction, is a matter which the legislature has left to the discretion of the

Governor and other members of the Board. The Board acts as a "check" on the management of the

NDOP. In this regard, the public interest is served by having a Board.

To ensure that members of the Board receive regular reports from the Director and have a

reasonable opportunity to provide guidance to him or her, it is recommended that the Director give

periodic reports on the state's prison system, and that the Board meet at a regularly scheduled

meeting or as part of a regularly scheduled Board of Examiners meeting, at least twice a year for

this purpose.

FRANKIE SUE DEL PAPA

Attorney General

By: ANNE B. CATHCART

Senior Deputy Attorney General

__________

OPINION NO. 96-25EMPLOYEES; EMPLOYERS; LABOR COMMISSION: The legislature

intended the employee to have two 10-minute breaks throughout the day, however, these breaks do

not apply when only one person is employed at a particular place of employment. Moreover, the

NRS 608.019(3)(b) exemption applies to NRS 608.019(1) and (2).

Carson City, September 9, 1996

Mr. David Dahn, Nevada State Labor Commissioner, 555 East Washington Avenue, Suite 4100,

Las Vegas, Nevada 89101

Dear Mr. Dahn:

You have asked this office for an opinion regarding certain provisions of NRS 608.019. Your

questions are specifically addressed as follows:

QUESTION ONE

Does NRS 608.019(2) require an employee receive a rest period of at least ten minutes in

duration or may the rest period be divided into smaller intervals?

ANALYSIS

NRS 608.019(2) provides that an employer shall allow an employee to take a 10-minute break

for every four hours that the employee has worked each day. These 10-minute breaks shall be

taken, insofar as practicable, "in the middle of each work period."

This statute contemplates that an employee shall take two breaks of ten minutes each, in the

middle of each 4-hour period. NRS 608.019(2). An exhaustive review of A.B. 219 and its

legislative history reveals that little if any discussion had taken place concerning duration of the

break time. Act of May 27, 1975, ch. 741, § 1, 1975 Nev. Stat. 1582.

The leading rule of statutory interpretation is to ascertain intent in enacting the statute and

ascertained intent will prevail over the literal sense. See Roberts v. State, Univ. of Nevada System,

104 Nev. 33, 752 P.2d 221 (1988). The intent of A.B. 219 was to remove numerous

discriminatory provisions within the state's labor laws. A.B. 219 was enacted to benefit as well as

to add protection for employees, not the employers. Act of May 27, 1975, ch. 741, § 1, 1975 Nev.

Stat. 7. If the language in a statute is ambiguous, then the construction that best reflects the

legislative intent should be adopted. Nevada Power Co. v. Public Service Comm'n, 102 Nev. 1, 4,

711 P.2d 867, 874 (1986).

CONCLUSION TO QUESTION ONE

The language regarding whether the ten minutes can be taken all at one time is ambiguous.

The clear intent of A.B. 219 was to benefit the employee. The statutory language clearly provides

for a 10-minute break in the middle of each work period (morning period, lunch, and afternoon

period). Accordingly, it can be inferred that the legislature intended the worker to have two 10-

minute breaks, one in the morning and one in the afternoon.

QUESTION TWO

Should NRS 608.019(3)(a), which exempts an employer from NRS 608.019 when only one

person is employed at a particular place of employment, be read narrowly or should it be read more

broadly, allowing an employer to utilize the exemption when several employees are employed at

one location but work in different areas of the property?

ANALYSIS

NRS 608.019(3)(a) provides an exception to NRS 608.019(1) and (2) which mandates a

continuous 10-minute rest period or an uninterrupted 30-minute lunch period, unless only one

person is employed at a particular place of employment. In this situation, the plain language of the

statute controls. If language is plain and unambiguous, there is no room for construction. Nevada

Power Co., 102 Nev. at 4.

This exemption applies when there is only one person working at a place of employment at a

certain period of time where it would be impracticable or impossible to grant the employee a 10-

minute break or a 30-minute lunch period. Examples might include only one clerk working at a

Seven-Eleven, only one night security guard at an apartment complex, or employees in other such

situations.

CONCLUSION TO QUESTION TWO

The NRS 608.019(3)(a) exemption should be read narrowly and would only apply in situations

where there is one person employed at a particular place of employment.

QUESTION THREE

Does the collective bargaining agreement exemption mentioned in NRS 608.019(3)(b) apply to

NRS 608.019(1) and (2)?

ANALYSIS

NRS 608.019(3)(b) provides that employees included within the provisions of a collective

bargaining agreement are exempted from NRS 608.019(1) and (2). In order to have the employer

bound to the collective bargaining agreement, the union must represent a majority of the

employer's workers. Otherwise, pursuant to the National Labor Relations Act 8(a)(5), 29 U.S.C.

158(a)(5) (1935), such bargaining constitutes an unfair labor practice. N.L.R.B. v. Albany Steel,

Inc., 17 F.3d 564, 568 (2nd Cir. 1994). Once a viable collective bargaining agreement exists, the

rights employees have under such an agreement can be determined.

The collective bargaining agreement usually controls the employment relationship. For

waivers of statutorily protected rights, such rights must be "clearly and unmistakably articulated"

within the collective bargaining agreement. Furniture Renters of America, Inc. v. N.L.R.B., 36

F.3d 1240 (3rd Cir. 1994), citing Metropolitan Edison Co. v. N.L.R.B., 460 U.S. 693, 708, (1983).

"As a matter of federal labor law, courts will not intervene in the collective bargaining process and

require the employer to take steps unauthorized by the duly-negotiated agreement." Marshall v.

Western Grain Co., Inc., 830 F.2d 1165, 1169 (11th Cir. 1988).

Generally, as long as the collective bargaining agreement is nondiscriminatory, the courts, in

order to promote respect for the collective bargaining process, will refuse to tamper with the

agreement. Id. However, the United States Supreme Court has recently ruled that when liability is

governed by independent state law, the mere need to look to the collective bargaining agreement

for damage computation is no reason to hold the state law claim defeated by the pre-emptive

powers National Labor Relations Act § 301 (1947). Livadas v. Bradshaw, 114 S. Ct. 2068, 2079

(1994).

In Livadas, Karen Livadas, a supermarket employee, was terminated from her job. Pursuant to

California state law, the employer must pay Livadas her earned wages immediately upon

termination or the employer would have to pay Livadas' wages every day thereafter for a 30-day

period. The collective bargaining agreement stated that all resolutions should be handled through

arbitration. The employer paid Livadas' wages three days after her termination. Livadas filed a

claim with the California Labor Commission stating that pursuant to California law, she was due

three days wages.

The Labor Commissioner denied her claim because there existed a collective bargaining

agreement which stated that all such matters are to be decided by an arbitrator. The federal district

court ruled for Livadas, but the 9th Circuit Court of Appeals reversed the district court's ruling.

The Supreme Court reversed the 9th Circuit stating that:

Denying represented employees basic safety protections might "encourage" collective-

bargaining over that subject, and denying union employers the protection of generally

applicable state trespass law might lead to increased bargaining over the rights of labor

pickets, but we have never suggested that labor law's bias toward bargaining is to be served

by forcing employees or employers to bargain for what they would otherwise be entitled to

as a matter of course.

Livadas, 114 S. Ct. at 2081 (citation omitted).

The United States District Court in California published an exemplary remedial order

interpreting the Supreme Court's ruling in Livadas. The district court further cited another

Supreme Court ruling which clarified Livadas, Hawaiian Airlines, Inc. v. Norris, 114 S. Ct. 2239

(1994). "[I]f the state law right is completely stated in the statute and there is no need to interpret

the CBA [collective bargaining agreement] to resolve or enforce that right, there is no reason for

[LMRA § 301] preemption to apply." Livadas v. Bradshaw, 865 F. Supp. 642, 644 (N.D. Cal.

1994) (emphasis in original).

Certain statutes create mandated rights and although subject to certain restrictions, are

applicable to all Nevada employees whether or not such employees are covered by a collective

bargaining agreement.

An example of such a right is illustrated by the following: A union represented employee

claims that her employer failed to pay her wages during the employee's trial period. NRS 608.016

provides that an employer shall not allow an employee to work without wages during the trial

period. The collective bargaining agreement states that all grievances must be taken before an

arbitrator. NRS 608.016 creates a state-mandated right to be paid during the trial period. In this

case, the Labor Commissioner can enforce NRS 608.016, even though the agreement provides for

an arbitrator. NRS 608.016 creates a state mandated right to collect wages during the trial period.

CONCLUSION TO QUESTION THREE

NRS 608.019(1) and (2) were specifically exempted by NRS 608.019(3)(b). The legislature

intended for employers and employees to be able to bargain for lunch and rest periods. However,

if the collective bargaining agreement is devoid of any reference to lunch breaks and/or rest

periods, then 608.019(1) and (2) will prevail. Accordingly, the NRS 608.019(3)(b) exemption

applies to NRS 608.019(1) and (2).

FRANKIE SUE DEL PAPA

Attorney General

By: MATTHEW T. DUSHOFF

Deputy Attorney General

__________

OPINION NO. 96-26DRIVER'S LICENSES; MOTOR VEHICLES; SOCIAL SECURITY

NUMBERS: The Department of Motor Vehicles and Public Safety may release social security

account numbers and related records only to states or their political subdivisions for purposes

specified in 42 U.S.C.A. § 405(c)(2)(C)(i) (1991).

Carson City, September 13, 1996

Mr. James P. Weller, Director, Department of Motor Vehicles and Public Safety, 555 Wright Way,

Carson City, Nevada 89711-0525

Dear Director Weller:

You have asked this office for an opinion regarding the Department of Motor Vehicles and

Public Safety's (Department) disclosure of social security account numbers and related records.

QUESTION ONE

To whom may the Department disclose social security account numbers under current state and

federal law?

ANALYSIS

As an overview, a state agency's lawful authority to require that a social security account

number be provided is extremely limited. The Privacy Act of 1974 provides that it is unlawful for

a state agency to deny an individual any right or privilege based on his or her refusal to furnish his

or her social security account number. 5 U.S.C.A. § 552a (1996).

However, in 1976 Congress provided for certain limited exceptions, whereby only state

agencies administering tax, public assistance, driver's license, or motor vehicle registration, may

require that the person provide a social security account number. See 42 U.S.C.A. §

405(c)(2)(C)(i) (1991). It provides that individuals may be required to provide their social security

numbers, but only for certain specified, limited purposes:

It is the policy of the United States that any State (or political subdivision thereof) may, in

the administration of any tax, general public assistance, driver's license, or motor vehicle

registration law within its jurisdiction, utilize the social security account numbers issued by

the Commissioner of Social Security for the purpose of establishing the identification of

individuals affected by such law, and may require any individual . . . to furnish . . . the

social security account number . . . issued to him . . . .

42 U.S.C.A. § 405(c)(2)(C)(i) (1991) (emphasis added). The above provisions evince an intent to

protect the privacy of one's social security account number, even from state agencies.

Thus, pursuant to the above provision, the Department may require that an individual furnish

his or her social security account number for purposes of establishing identification pursuant to

administration of any tax, driver's license, or motor vehicle registration law. The 1989 Nevada

Legislature enacted provisions relative to obtaining and maintaining social security account

numbers and related records. NRS 483.290 requires driver's license applicants to furnish social

security information. NRS 483.345 provides that the drivers license number will be the social

security number, or a unique number formulated on the basis of the social security number.

With regard to the social security account numbers and related records which the Department

requires under federal and state law, the next issue is to whom may the Department disclose such

information. The Nevada Legislature recently amended Nevada Revised Statutes 481.063,

482.170 and 483.916. Act of July 5, 1995, ch. 560 § 1, 1995 Nev. Stat. 1927. The amendments

prohibit the Department from releasing "personal information" except as specifically permitted by

statute. The "personal information" to be protected is defined to include social security numbers

and driver's license numbers. This definition of "personal information" is identical to the

information deemed protected by the federal Driver's Privacy Protection Act of 1994. 18 U.S.C.A.

§ 2721 (Cum. Supp. 1996). However, simply because state law may allow release of "personal

information" under specified circumstances does not mean that such release is not subject to

federal law governing release of social security account numbers or related records.

Nor does the federal Driver's Privacy Protection Act eliminate the well-established protections

afforded social security account numbers and information. This is so particularly as the express

purpose of the Act is driver's privacy protection. The federal Driver's Privacy Protection Act

carves out "personal information" for special treatment—it is not to be disclosed by the

Department except as provided by law. That social security account numbers are defined as

"personal information" does not mean any permitted user of "personal information" is ipso facto

entitled also to social security information. To so find would eliminate the long-standing, long-

recognized privacy protections afforded by the 1974 Privacy Act and the 1976 amendment of the

social security laws. 5 U.S.C.A. § 552a (1996); 42 U.S.C.A. § 405(c)(2)(C)(i) (1991)

respectively. This would produce an absurd result and fails to harmonize the two provisions.

Thus, the Department may require an individual to furnish his social security number but only

for administration of driver's license or motor vehicle registration law. Further, the Department's

use of the social security information should only be used or disclosed for the express purposes in

42 U.S.C.A. § 405(c)(2)(C)(i) (1991): "[T]he administration of any tax, general public assistance,

driver's license, or motor vehicle registration law . . . for the purpose of establishing the

identification of individuals affected by such law . . . ." Id.

In 1990 Congress enacted 42 U.S.C.A. § 405(c)(2)(C)(viii)(I) (1991), which provides: "Social

security account numbers and related records that are obtained or maintained by authorized persons

pursuant to any provision of law enacted on or after October 1, 1990, shall be confidential, and no

authorized person shall disclose any such social security account number or related record." It also

provides that willful unauthorized disclosure by authorized personnel of confidential social

security account numbers and related records is a felony.

NRS provisions relevant to the Department's obtaining and maintaining social security account

numbers or related records were enacted in 1989: NRS 483.290 governs furnishing to the

Department social security information for drivers license applicants; NRS 483.345 governs the

Department assigning a driver's license number formulated on the basis of the social security

number (social security account number related records). Because these statutes predate the

October 1, 1990, cutoff, it appears that 42 U.S.C.A. § 405(c)(2)(C)(viii)(I) (1991) does not apply to

the Department's use of social security information. However, the intent of the federal law is clear

to limit unauthorized disclosure by authorized personnel.

The federal Privacy Act of 1974, 42 U.S.C.A. § 405(c)(2)(C)(i) and (viii) (1991), which makes

unauthorized willful disclosure a felony, and the Driver's Privacy Protection Act of 1994, have the

clear purpose of protecting individuals from compelled disclosure of social security information

except to specific authorized agencies for specific purposes. If these federal laws were interpreted

to allow the Department to disclose social security account numbers and related records to anyone

pursuant to state law, it would emasculate the federal protections of this federal identifier. The

federal protections would be effectively nullified. That would produce an absurd result.

Laws must be interpreted harmoniously, to avoid an absurd result. Weston v. County of

Lincoln, 98 Nev. 183, 185, 643 P.2d 1227, 1229 (1982); First American Title Co. v. State of

Nevada, 91 Nev. 804, 806, 543 P.2d 1344, 1345 (1975). Further, "statutes must be given a

reasonable construction with a view to promoting rather than defeating the legislative policy

behind them." State, Dep't Mtr. Vehicles v. Brown, 104 Nev. 524, 526, 762 P.2d 882, 883 (1988).

The policy is to afford privacy protection, with exceptions as needed for the state or political

subdivision to administer any tax, general public assistance, driver's license, or motor vehicle

registration law within its jurisdiction.

The Department's prior release of social security account numbers and related records is not

expressly and specifically prohibited by federal law. However, based on the federal laws which

limit the purposes for which a social security account number may be required, and which punish

as a felony unauthorized disclosure by authorized persons of confidential social security account

numbers and related records, the clear implication is that the Department should limit disclosure of

social security account numbers and related information to those agencies entitled to such pursuant

to 42 U.S.C.A. § 405(c)(2)(C)(i) (1991).

CONCLUSION TO QUESTION ONE

To promote the policy behind the Privacy Act, this office recommends that the Department

limit disclosure of social security account numbers and related records to the users and purposes

specified in 42 U.S.C.A. § 405(c)(2)(C)(i) (1991):

[A]ny State (or political subdivision thereof) . . . in the administration of any tax, general

public assistance, driver's license, or motor vehicle registration law within its jurisdiction . .

. for the purpose of establishing the identification of individuals affected by such law. . . .

Id. County or city government would be included as political subdivisions of the state to whom

disclosure would be permitted for the administration of any tax, welfare program, driver's license,

or registration law within its jurisdiction for the purpose of correctly identifying the individual

affected.

QUESTION TWO

To whom may the Department disclose a person's drivers license number?

ANALYSIS

As discussed above, there are restrictions on disclosure of social security account numbers and

"related records." 42 U.S.C.A. § 405(c)(2)(C)(viii)(IV) (1991) defines "related record" as any

record, list or compilation that indicates, directly or indirectly, the identity of any individual with

respect to whom a social security account number or request for a social security account number

is maintained.

Pursuant to the Department's current interpretation of NRS 483.345(1), the driver's license

number is numerically formulated based on the social security number. Thus, the social security

account number can be numerically derived from the driver's license number. This means that the

driver's license number is a record which directly or indirectly indicates the identity of an

individual with respect to his or her social security number. As such, the driver's license number is

a "related record" which must be afforded the same protection as the social security account

number itself.

CONCLUSION TO QUESTION TWO

The Department may release the driver's license number only to those entitled to receive social

security account numbers or related records, as the drivers license number is a "related record" in

that it directly or indirectly indicates the identity of an individual with respect to his or her social

security number.

FRANKIE SUE DEL PAPA

Attorney General

By: LAURIE B. BUCK

Deputy Attorney General

__________

OPINION NO. 96-27CIVIL RIGHTS; FELONS; VOTING: Felons convicted in a Nevada district

court may have their civil rights restored pursuant to NRS. Nevada can only restore the civil rights

of Nevada felons. Federal felons may have their civil rights restored only by presidential pardon.

Whether Nevada must afford full faith and credit to the restoration of civil rights by a foreign

jurisdiction depends on the individual circumstances.

Carson City, September 25, 1996

The Honorable Stewart L. Bell, Clark County District Attorney, 500 South Grand Central

Parkway, Post Office Box 552215, Las Vegas, Nevada 89155-2255

Dear Mr. Bell:

You have requested an opinion on the "correct course of action" to take on the request of a

Clark County resident who is a federal felon convicted in the United State District Court, Southern

District of New York, who wishes to regain the right to vote. Your inquiry raises several

questions.

QUESTION ONE

How do Nevada felons (felons convicted in a Nevada district court) obtain restoration of their

civil rights?

ANALYSIS

Article 2, § 1 of the Nevada Constitution states: "no person who has been or may be convicted

of treason or felony in any state or territory of the United States, unless restored to civil rights" may

vote. There are several statutory mechanisms in place for restoration of civil rights to Nevada

felons depending on whether the felon is on probation, receives a pardon, successfully completes

probation, or serves a sentence.

NRS 176.227 provides for the restoration of civil rights of a convicted person after honorable

discharge from probation by the district court where the felon was convicted. If the convicted

person was granted an honorable discharge from probation, has not previously been restored to his

civil rights, and is not convicted of any offense greater than a traffic violation within six months

after the discharge, he may apply to the Division of Parole and Probation for restoration of civil

rights. The Division of Parole and Probation then petitions the court in which the applicant was

convicted for restoration of the convicted person's civil rights. If the Division refuses to petition

the court, the convicted person may petition the district court in which the conviction was obtained

directly for restoration of his civil rights.

Pursuant to NRS 213.090, the Nevada Board of Pardons Commissioners may restore civil

rights of felons at the time a pardon is granted or at a later date. If restoration of civil rights is

granted at a date subsequent to the pardon, the applicant shall not have been convicted of any

offence greater than a traffic violation within five years after the pardon was granted. If the Board

of Pardons Commissioners refuses to restore the applicant's civil rights, the applicant may petition

the district court in which the conviction was obtained for an order directing the Board of Pardons

to grant such restoration.

The Nevada Parole Board, pursuant to NRS 213.155, may restore a paroled prisoner to his civil

rights at expiration of his parole. If the convicted person did not receive a restoration upon

expiration of his parole, and has not been convicted of an offense greater than a traffic violation

within five years after completion of parole, he may apply to the Parole Board for restoration of his

civil rights. If the Parole Board refuses to restore the applicant's civil rights, the applicant may

petition the district court in which the conviction was obtained for an order directing the Parole

Board to grant such restoration.

The Division of Parole and Probation may restore a convicted person's civil rights after his

sentence has been served pursuant to NRS 213.157. If the convicted person has not been convicted

of any offense greater than a traffic violation within five years of his release, he may apply to the

Division for restoration of his civil rights. Upon submission of proof that the convicted person

meets the criteria for restoration of his civil rights, the Division of Parole and Probation shall

petition the district court in which the conviction was obtained for restoration of the applicant's

civil rights. If the Division of Parole and Probation refuses to submit such a petition, the applicant

may directly petition the district court in which the conviction was obtained for an order directing

the Division of Parole and Probation to grant such restoration.

CONCLUSION TO QUESTION ONE

Depending on the status of the convicted person, restoration of civil rights may be obtained for

Nevada felons from the district court in which the felon was convicted, the Board of Pardons or the

Parole Board.

QUESTION TWO

Can Nevada restore civil rights of felons who were not convicted in a Nevada district court?

ANALYSIS

The statutory language referred to in Question One limits authority of the Board of Pardons

Commissioners, the Board of Parole Commissioners, and the Nevada district courts to restoring the

rights of Nevada felons only. It is almost axiomatic that a state's ability to pardon and restore civil

rights is limited to convicted persons over which the state has jurisdiction. This proposition is

buttressed by the opinion of the U.S. Supreme Court in Beecham v. U.S., U.S. , 114 S. Ct.

1669 (1994). Beecham involved federal felons who obtained state restorations of their civil rights

and were subsequently convicted of being felons in possession of firearms in violation of 18

U.S.C.A. § 922(h) (1994).

The question before the Supreme Court in Beecham was "[W]hich jurisdiction's law is to be

considered in determining whether a felon `has had civil rights restored.'" Beecham, 114 S. Ct. at

1670 (emphasis added).

The Beecham Court went on to hold:

Throughout the statutory scheme, the inquiry is: Does the person have a qualifying

conviction on his record? Section 922(g) imposes a disability on people who "ha[ve] been

convicted." The choice-of-law clause defines the rule for determining "[w]hat constitutes a

conviction." The exemption clause says that a conviction for which a person has had civil

rights restored "shall not be considered a conviction." Asking whether a person has had

civil rights restored is thus just one step in determining whether something should "be

considered a conviction." By the terms of the choice-of-law clause, this determination is

governed by the law of the convicting jurisdiction.

This interpretation is supported by the fact that the other three procedures listed in the

exemption clause--pardons, expungements, and set-asides--are either always or almost

always (depending on whether one considers a federal grant of habeas corpus to be a "set

aside," a question we do not now decide) done by the jurisdiction of conviction. That

several items in a list share an attribute counsels in favor of interpreting the other items as

possessing that attribute as well. Dole v. Steelworkers, 494 U.S. 26, 36, 110 S.Ct. 929,

934-935, 108 L.Ed.2d 23 (1990); Third Nat. Bank in Nashville v. Impac Limited, Inc., 432

U.S. 312, 322, 97 S.Ct. 2307, 2313, 53 L.Ed.2d 368 (1977); Jarecki v. G.D. Searle & Co.,

367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961).

Beecham, 114 S. Ct. at 1671 (emphasis added). See also U.S. v. Jones, 993 F.2d. 1131 (4th Cir.

1993) (state's post-conviction restoration of rights scheme cannot eliminate prior federal conviction

as prior conviction for federal offense as being a felon in possession of a firearm); U.S. v.

Dupaquier, 74 F.3d 615, 617 (5th Cir. 1996) (the federal court looks to state law to determine

whether a defendant's civil rights were restored); and U.S. v. Lowe, 50 F.3d 604 (8th Cir. 1995)

(Minnesota lacks authority to restore civil rights of Minnesota resident convicted in another state).

Beecham involved a violation of federal firearms laws. However, the rationale of Beecham and

its application to voting rights cases is supported by a lack of authority or rationale for deviating

from it.

CONCLUSION TO QUESTION TWO

Because of Nevada's express statutory language and the rationale of the Beecham line of cases,

Nevada can only restore the civil rights of Nevada felons.

QUESTION THREE

How do federal felons obtain restoration of their civil rights?

ANALYSIS

There does not appear to be a procedure under federal law for restoring a federal felon's civil

rights. See United States v. Geyler, 932 F.2d 1330, 1333 (9th Cir. 1991); Beecham, at 1671-72. In

a footnote, the Beecham Court stated:

We express no opinion on whether a federal felon cannot have his civil rights restored

under federal law. This is a complicated question, one which involves the interpretation of

the federal law relating to federal civil rights, see U.S. Const., Art. I, Sec. 2, cl. 1 (right to

vote for Representatives); U.S. Const., Amdt. XVII (right to vote for Senators); 28 U.S.C.

Sec. 1865 (right to serve on a jury); consideration of the possible relevance of 18 U.S.C.

Sec. 925(c) (1988 ed., Supp. IV), which allows the Secretary of the Treasury to grant relief

from the disability imposed by Sec. 922(g); and the determination whether civil rights

must be restored by an affirmative act of a government official, see United States v. Ramos,

961 F.2d 1003, 1008 (CA1), cert. denied, 506 U.S. , 113 S.Ct. 364, 121 L.Ed.2d 277

(1992), or whether they may be restored automatically by operation of law, see United

States v. Hall, 20 F.3d 1066 (CA10 1994). We do not address these matters today.

Id. at 1672, n. 2.

CONCLUSION TO QUESTION THREE

The only method available for a federal felon to obtain restoration of his civil rights appears to

be a presidential pardon pursuant to U.S. Const., art. II, § 2; authority of the President as Chief

Executive, 28 U.S.C. §§ 509 and 510 (1993); and 28 C.F.R. 0.35 and 1.1 (1993).

QUESTION FOUR

Is Nevada required to give full faith and credit to restorations of civil rights by other states?

ANALYSIS

The Full Faith and Credit Clause of the United States Constitution provides: "Full Faith and

Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every

other State. And the Congress may by general Laws prescribe the Manner in which such Acts,

Records and Proceedings shall be proved, and the Effect thereof." U.S. Const. art. IV, § 1.

The purpose of the Full Faith and Credit Clause is to preserve rights acquired or confirmed

under public acts or judicial proceedings of one state by requiring recognition of their validity in

other states. 16A Am. Jur. 2d Constitutional Law § 863 (1995). However, "[t]he Full Faith and

Credit Clause does not compel 'a state to substitute the statutes of other states for its own statutes

dealing with a subject matter concerning which it is competent to legislate.'" Sun Oil Co. v.

Wortman, 108 S. Ct. 2117, 2122 (1988), quoting Pacific Employers Ins. Co. v. Industrial Accident

Comm'n, 59 S. Ct. 629, 632 (1939). Nor is a state required to enforce a law obnoxious to its public

policy. Griffin v. McCoach, 313 U.S. 498 (1941), citing Bradford Electric Co. v. Clapper, 286

U.S. 145 (1932); Hartford Indemnity Co. v. Delta Co., 292 U.S. 143 (1934).

A split of authority exists regarding recognition of acts of clemency by sister states. There is

authority that, under the Full Faith and Credit Clause, one state need not recognize a pardon issued

by a sister state for an offense committed in that sister state. See Carlesi v. New York, 233 U.S. 51

(1914) (a presidential pardon operated only with regard to the sovereign that issued it); Thrall v.

Wolfe, 503 F.2d 313 (7th Cir. 1974), cert. denied, 420 U.S. 972 (1975) (U.S. not required to

recognize state pardon); White v. Thomas, 660 F.2d 680 (5th Cir. 1981), cert. denied, 455 U.S.

1027 (1982) (Texas sheriff not barred from firing a deputy who failed to indicate at the time of hire

that he had been convicted of a felony in California even though that conviction was later

expunged); Yaconvone v. Bolger, 645 F.2d 1028, cert. denied, 454 U.S. 844 (1981) (U.S. Postal

Service in deciding whether to employ someone convicted of shoplifting in Vermont was not

required to recognize Vermont's pardon of the offense); Groseclose v. Plummer, 106 F.2d 311 (9th

Cir.), cert. denied, 308 U.S. 614 (1939) (California not required to recognize Texas pardon);

Delehant v. Board of Police Standards and Training, 855 P.2d 1088 (Or. 1993) (Oregon not

required to recognize Idaho's expunction of defendant's Idaho conviction); State v. Edmondson,

818 P.2d 855, cert. quashed, 818 P.2d 419 (N.M. 1991) (New Mexico not required to recognize

Texas expunction of defendant's Texas conviction).

Other courts, however, have ruled that the law of comity requires that states recognize a sister

state's restoration of a convicted person's civil rights. See Wickizer v. Williams, 173 S.W. 288

(Tex. Ct. App. 1914) (pardon for felony committed in Mississippi by Mississippi authorities

removes disability of person to sit on jury in Texas); U.S. v. McMurrrey, 827 F.Supp. 424 (S.D.

Tex. 1993) (U.S. required to recognize Governor of Oklahoma's pardon of defendant's prior

Oklahoma conviction); People v. Willis, 435 N.Y.S.2d 655 (N.Y. App. Div. 1982) (New York

would not consider a Texas felony conviction for enhancement purposes where Texas would not

use the same conviction for enhancement under Texas law).

In determining whether the statute of a state under which foreign rights arose or the law of

the forum should control in matters involving policy and conflicting interests, the rule is

fairly well settled that different considerations usually apply where the statute creating a

foreign right, which it is claimed should be given effect, is set up by way of defense to an

asserted liability, from those where merely affirmative rights are claimed under a foreign

statute . . . . In both the conflict is to be resolved not by giving automatic effect to the full

faith and credit clause, compelling the courts of each state to subordinate its statutes to

those of the other, but by appraising the governmental interests of each jurisdiction and

turning the scale of decision according to their weight.

16A Am. Jur. 2d Constitutional Law § 867 (1995) (footnotes omitted).

[A]s a general rule, recognition will be required, unless the matter involves local

sovereignty over purely local questions, such as criminal or penal laws, or the statute

conflicts with a statute or policy of the forum state and the governmental interests of the

forum state in the persons, property, or events in the state involved in the litigation

outweigh the governmental interests of the foreign state for whose statute recognition is

sought.

Id. at § 868 (footnote omitted).

Recognition of restoration of civil rights almost always involves affirmative rights that are

claimed under a foreign statute. Therefore, the question of whether Nevada must recognize a sister

state's restoration of a convicted person's civil rights is determined by weighing the governmental

interests of Nevada and the foreign state. Several factors are relevant to this process including

what jurisdiction restored the civil rights, whether the restoration of civil rights was pursuant to

some affirmative act or by operation of law, the interest of the foreign state in having Nevada

recognize its restoration, and Nevada's interest in not recognizing the restoration.

Restoration of civil rights of a felon who was convicted in that state's courts would tend to

support extending full faith and credit to that state's restoration. If the restoring state purports to

restore the civil rights of a felon who was not convicted within that jurisdiction, it would present a

strong argument for nonrecognition under the full faith and credit clause. See Beecham, 114 S. Ct.

at 1671 and Question Two.

Judgments of other states are almost always given recognition under the full faith and credit

clause. Under full faith and credit principles, if the court that issued the judgment had jurisdiction

to render the judgment, other states are obligated to recognize the judgment. Underwriters Nat.

Assur. Co. v. North Carolina Life & Acc. & Health Ins. Guaranty Assn., 102 S. Ct. 1357 (1982).

Therefore, if a state restores the civil rights of one of its felons by way of an affirmative act that

results in a judgment or a finding by a tribunal, board or commission, rather than by mere

operation of law, a stronger argument is presented for recognition.

The jurisdiction that originally imposed the disabilities on the convicted felon has strong

interests in whether those disabilities are removed or remain with the felon. Certainly, there are

situations where the convicting jurisdiction would desire to have the disabilities associated with a

felony conviction removed. For example, if the convicting state issued the felon a pardon based on

information that the convicted person was actually innocent of the crimes he was convicted of, the

convicting state would have a strong interest in restoring the convicted person's civil rights and

remove any stigma that person might have for the unjust conviction.

A jurisdiction that purports to restore the civil rights of a felon who was not convicted in that

jurisdiction and did not impose the disabilities associated with being a convicted felon on that

person, has little, if any, governmental interest in removing those disabilities. Likewise, that

jurisdiction's governmental interest in having that person vote in Nevada is nonexistent.

Nevada's interest in carefully scrutinizing another state's restoration of civil rights to a

convicted felon is founded in Nevada's Constitution. Nevada's constitutional mandate that "no

person who has been or may be convicted of treason or felony in any state or territory of the United

States, unless restored to civil rights" may vote, expresses Nevada's very strong interest in keeping

convicted felons from voting. Nev. Const. art. 2, § 1. Nevada's interest in not recognizing another

state's restoration of civil rights is especially strong where the restoration is relevant only to rights

exercised in, and relating to, Nevada, such as voting in state elections.

Although the National Voter Registration Act of 1993, 42 U.S.C. § 1973gg-6, prohibits felons

from voting, the right to vote is primarily a function of a state's prerogative. Certainly, a state may

decide who votes in its own state elections. If one state has the prerogative to allow federal felons

to vote in its elections, then Nevada certainly can just as surely prevent federal felons from voting

in its elections unless their civil rights have been restored.

When all of the factors mentioned above are weighed and evaluated, the conclusion is that

Nevada is not bound to recognize another state's statute authorizing federal felons or out-of-state

felons to vote in that state's elections as having restored the convicted felon's constitutional rights

pursuant to the full faith and credit clause for two primary reasons: (1) Pursuant to Beecham, states

do not have jurisdiction to remove disabilities imposed by the federal government or by other

states; and (2) such statutes are not restorations at all. Rather, statutes that merely authorize federal

and out-of-state felons to vote do only that. Such statutes clearly do not purport to restore civil

rights.

CONCLUSION TO QUESTION FOUR

Nevada should give full faith and credit to restorations of civil rights where certain criteria are

met. The restoring jurisdiction must have also been the convicting jurisdiction. The restoration

must purport to be just that, a restoration of the convicted person's civil rights, and meet all the

constitutional and statutory requirements of the restoring jurisdiction. Nevada must not have any

overriding reason, such as a public policy set out in a statute or Nevada's Constitution, for not

recognizing the restoration. If all these questions can be answered affirmatively, then Nevada

should recognize a restoration of civil rights by a foreign jurisdiction.

QUESTION FIVE

What is the "correct course of action" to take on the request of a Clark County resident to

regain the right to vote who is a federal felon convicted in federal district court?

ANALYSIS

As stated above in Question One, the Nevada Constitution prohibits felons from voting unless

they have had their civil rights restored. Nev. Const. art. 2, § 1. The federal felon in question has

supplied documentation that on November 16, 1977, he was convicted of a felony in the United

States District Court-Southern District of New York. This person served his sentence at the

Federal Prison Camp at Lompoc, California, and was released to the Central District of California

where he was under special parole supervision with the U.S. Probation Office for the Central

District of California. This person has supplied documentation that he was successfully discharged

from parole supervision on October 3, 1985.

The federal felon claims that his civil rights have been restored by New York State and relies

on a New York statute that states in pertinent part:

No person who has been convicted in a federal court, of a felony, or a crime or offense

which would constitute a felony under the laws of this state, shall have the right to register

for or to vote at any election unless he shall have been pardoned or restored to the rights of

citizenship by the president of the United States, or his maximum sentence of

imprisonment has expired, or he has been discharged from parole.

N.Y. Election Law § 3 (Consol. 1995).

The statutory language quoted above does not purport to restore the civil rights of federal

felons as required by the Nevada Constitution. The language of the statute itself contemplates the

distinction between a pardon or a restoration of rights and merely expiring a sentence or being

discharged from parole. The cited language simply allows federal felons who have been pardoned

or restored or who have expired their sentences or who have been discharged from parole to vote in

New York. The statute does not purport to confer any rights that would be associated with a

restoration of rights.

The federal felon argues that his rights were restored by the State of New York even though he

was convicted in federal court. Pursuant to the rationale of Beecham, New York was without

jurisdiction or authority to restore his civil rights. Hence, recognition of his "restoration" is not

required. See Question Two. Moreover, since the language of the New York statute does not even

purport to constitute a restoration of the convicted person's civil rights, a full faith and credit issue

is not presented. There is no restoration of civil rights to recognize or not recognize.

In order for this person to vote in Nevada, he must obtain a restoration of his civil rights from

the jurisdiction that convicted him—federal authorities. He will need to seek a presidential pardon,

which is admittedly an exacting and time-consuming process. Nevada could allow this person, and

others similarly situated, to vote if the language in Nevada's Constitution were modified and

Nevada enacted statutory language similar to that found in the New York statute relied on by the

federal felon. However, at present, this person is not qualified to vote in Nevada.

CONCLUSION TO QUESTION FIVE

The proper course of action in this person's case is to direct him to the United States Pardon

Office. The Clark County Registrar of Voters should not allow him to register to vote until he has

obtained restoration of his civil rights from federal authorities.

FRANKIE SUE DEL PAPA

Attorney General

By: CHARLES HILSABECK

Deputy Attorney General

__________

OPINION NO. 96-28LIENS; PERSONAL PROPERTY; TAXATION; TAXES: The summary

seizure and sale remedy of NRS 361.535 is available to collect delinquent taxes assessed against

the specific personal property to which an NRS 361.450(1) lien has attached, but is no longer

owned by the person assessed. A holder of a recorded security interest in personal property is

entitled to notice by mail or personal service prior to tax sale of the personal property as a

supplement to the constructive notice required by NRS 361.535 in order to satisfy the requirements

of due process. However, due process does not require notice to a mere holder of a recorded

security interest prior to seizure of the property by the county assessor.

Carson City, September 27, 1996

Mr. Paul D. Johnson, Deputy District Attorney, Office of the District Attorney, Civil Division, Post

Office Box 552215, Las Vegas, Nevada 89155-2215

Dear Mr. Johnson:

You have requested an opinion from this office on two questions relating to the summary

seizure and sale of personal property for delinquent taxes authorized by NRS 361.535. Our

response follows.

QUESTION ONE

Is the seizure and sale remedy of NRS 361.535 available to collect delinquent taxes assessed

against personal property no longer owned by the person assessed?

ANALYSIS

NRS 361.450(1) creates “a perpetual lien against the property assessed” for taxes levied under

NRS chapter 361 “until the tax and penalty charges and interest which may accrue are paid.” With

certain exceptions, “the lien attaches on July 1 of the year for which the taxes are levied.” NRS

361.450(2). The statutes are clear. A personal property tax lien attaches to the personal property

assessed and remains with the property until satisfied, regardless of subsequent transfer(s) of the

property. See State of Nev. v. Yellow Jacket Silver Mining Co., 14 Nev. 220, 231 (1879) (analyzing

a tax lien statute substantially similar to NRS 361.450(1), the court stated “the lien created

continues indefinitely, or until the tax is paid . . . the effect of which is to subject the property to the

payment of the tax, although it may have passed into other hands subsequent to the date of the

lien”); cf. Magee v. Whitacre, 60 Nev. 208, 214-17, 106 P.2d 751, 753-55 (1940).

In 1977 the legislature amended NRS 361.450. Act of January 26, 1977, ch. 483 § 4, 1977

Nev. Stat. 1000. The amendment created an exception for mobile homes whereby the tax lien

expires upon sale, except liens for personal property taxes for the preceding twelve months. NRS

361.450(3). “Where a former statute is amended . . . it has been held that such amendment is

persuasive evidence of what the legislature intended by the first statute.” Hughes Properties v.

State of Nev., 100 Nev. 295, 298, 680 P.2d 970, 972 (1984). Although NRS 361.450(1) was and is

clear, the 1977 amendment confirms that a personal property tax lien created by NRS 361.450(1),

with the exception of mobile homes, remains attached to the property upon transfer.

NRS 361.535 sets forth the time for payment of personal property tax, the penalty for failure to

pay, and authorizes the summary seizure and sale of personal property to satisfy delinquent taxes

and costs. NRS 361.535 provides in pertinent part:

1. If the person, company or corporation so assessed neglects or refuses to pay the taxes

within 30 days after demand, a penalty of 10 percent must be added. If the tax and penalty

are not paid on demand, the county assessor or his deputy shall seize, seal or lock enough

of the personal property of the person, company or corporation so neglecting or refusing to

pay to satisfy the taxes and costs.

2. The county assessor shall post a notice of the seizure, with a description of the property,

in three public places in the township or district where it is seized, and shall, at the

expiration of 5 days, proceed to sell at public auction, at the time and place mentioned in

the notice, to the highest bidder, for lawful money of the United States, a sufficient quantity

of the property to pay the taxes and expenses incurred. For this service the county assessor

must be allowed from the delinquent person a fee of $3.

While one might argue that the summary seizure and sale remedy provided in NRS 361.535

applies only to the assessed taxpayer, the most reasonable conclusion, based on the lien created by

NRS 361.450(1), the purposes of the statutes, and case law from this and other jurisdictions, is that

the summary seizure and sale remedy follows liened personal property into the hands of

subsequent transferees for taxes assessed against that personal property. To conclude otherwise

would frustrate the legislative intent and render the lien for delinquent personal property taxes a

nullity upon mere transfer of the personal property.

Statutes and rules are to be read, construed, and interpreted in harmony with other statutes and

rules so as to render them compatible wherever possible. City of Las Vegas v. Mun. Court, 110

Nev. 1021, 1024, 879 P.2d 739, 741 (1994); Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 993, 860

P.2d 720, 723 (1993); City Council of Reno v. Reno Newspapers, 105 Nev. 886, 892, 784 P.2d 974,

978 (1989); Weston v. County of Lincoln, 98 Nev. 183, 185, 643 P.2d 1227, 1229 (1982) (holding

that real property redemption statute, NRS 361.585, applied to patented mining claims in addition

to NRS 517.410). When construing statutory provisions, “[a]n entire act must be construed in light

of its purpose and as a whole.” Acklin v. McCarthy, 96 Nev. 520, 523, 612 P.2d 219, 220 (1980);

see also List v. Whisler, 99 Nev. 133, 138-39, 660 P.2d 104, 107 (1983) (determining

constitutionality of factoring provisions of 1981 tax package, “construction of legislation should be

based on legislative intent, and legislative intent is to be determined by looking at the whole act, its

object, scope and intent”); Ex Parte Iratacable, 55 Nev. 263, 282-83, 30 P.2d 284, 290 (1934)

(construing provisions of act for licensing of motor vehicles, the “clear purpose of [which was] to

raise revenue,” entire act must be looked to and considered as a whole).

Although tax statutes are construed most strongly against the government and in favor of

the taxpayer, the rule of strict construction is only one of several factors to be considered,

and is to be utilized in conjunction with other rules of statutory construction. It is the duty

of this court to give effect to the clear intention of the Legislature and to construe the

language of a statute so as to give it force and not nullify its manifest purpose.

Hughes, 100 Nev. at 297 (citations omitted) (construing gaming license fees statutes and regulation

in light of their primary purpose which is to produce revenue); see also McKay v. Bd. of

Supervisors, 102 Nev. 644, 650-51, 730 P.2d 438, 443 (1986). When there are alternative possible

interpretations of a statute, an interpretation which produces an unreasonable result should be

rejected in favor of one producing a reasonable result. Hughes, 100 Nev. at 298. “If the language

[of a statute] is capable of two constructions, one of which is consistent and the other is

inconsistent with the evident object of the legislature in passing the law, that construction must be

adopted which harmonizes with the intention.” Recanzone v. Nev. Tax Comm'n, 92 Nev. 302, 305,

550 P.2d 401, 403 (1976) quoting State of Nev. v. Cal. M. Co., 13 Nev. 203, 217 (1878) (where

NRS 361.260 neither specifically permitted nor prohibited cyclical plan of reappraisal, the purpose

of the statute to ensure that all property be assessed as current as practicable and to ensure

obtaining maximum revenue from property tax structure, 5-year cyclical reappraisal of areas within

a county was appropriate rather than a reappraisal of the entire county.)

Long ago, in a case involving various aspects of summary proceedings for the collection of

taxes, the Nevada Supreme Court stated:

Revenue--money is what the state needs and must have to maintain its credit and keep the

machinery of government in motion. Taxes are assessed upon the property of the people

for the purpose of obtaining it. While the constitution requires that property shall not be

taken from the owner, either for taxes or anything else without due process of law, that

provision, as applied to the collection of taxes, requires the observance only of the most

essential and fundamental steps. While the rights of the individual must be protected, the

government should not be unnecessarily hampered in its efforts to make collections . . . .

State of Nev. v. Cent. Pac. R.R. Co., 21 Nev. 260, 269-70, 30 P. 689, 692 (1892), aff'd, 162 U.S.

512 (1896). Additionally, in an action to recover personal property sold at tax sale, wherein it was

held that personal property sold under a conditional sales contract which retained title in the seller

was assessable to the buyer in possession, the court explained:

The property itself is subject to taxation. The legal owner knows this. . . . Such taxes are

a primary lien, enforceable by seizure and sale. Both constitutional and statutory

requirements for equal taxation compel a reasonable and practicable method for making all

property share, through taxation, in the expense of government.

Gen. Elec. Cr. Corp. v. Andreen, 74 Nev. 199, 205-06, 326 P.2d 731, 734 (1958).

Application of the foregoing rules and principles leads to the conclusion that the summary

seizure and sale remedy of NRS 361.535 follows specific personal property, upon which tax was

assessed and to which a statutory lien has attached, into the hands of a transferee. NRS 361.535

must be read and interpreted in conformity with NRS 361.450(1) and the purposes of Nevada's

revenue laws. In order to give effect to the intention of the legislature, the statutes must be

construed as to give them force and not nullify their manifest purpose. In so doing, the most

reasonable conclusion is that liened personal property is subject to seizure and sale for taxes

assessed against that property in the hands of a transferee.

Numerous courts have arrived at this conclusion under similar statutes. See In Re Ever Crisp

Food Products Co., 11 N.W.2d 852 (Mich. 1943) (summary seizure and sale of personal property

subject to specific and perfected personal property tax lien authorized as against subsequent, bona

fide purchaser); Owens v. Or. Livestock Loan Co., 47 P.2d 963 (Ore. 1935) (tax assessed against

specific personal property is a lien on that personal property, which is subject to seizure and sale

upon transfer of ownership); Farm & Cattle Loan Co. v. Faulkner, 242 P. 415 (Wyo. 1926) (to the

same effect); Milliken v. O'Meara, 222 P. 1116 (Colo. 1924) (where personal property has been

assessed and is subject to lien, methods of enforcing discharge of lien applies to subsequent

owner); Robinson v. Youngblood, 103 N.E. 347 (Ind. Ct. App. 1913) (transferred personal property

subject to seizure and sale to enforce tax lien); Minshull v. Douglas County, 234 P. 661 (Wash.

1925) (“[u]nder the various statutes and under our own decisions it is manifest that the personal

property tax is a specific lien against the specific property assessed; that the assessed personal

property may be followed into the hands of a transferee and the assessed taxes collected”); Mills v.

County of Thurston, 47 P. 759 (Wash. 1897) (summary seizure and sale remedy applies to

transferred personal property to which tax lien has attached); cf. Magee v. Whitacre, 60 Nev 208,

106 P.2d 751, 753-55 (1940); Davis v. State of Ariz., 401 P.2d 749 (Ariz. Ct. App. 1965).

In Mills the court reasoned as follows:

It is further contended that the right of distraint can only be exercised against the person

owing the tax, and that, where the goods have been transferred and the title has passed, the

remedy is lost. But applying the same rule of a fair construction to effect the purpose of the

law, it would seem that the goods not only pass subject to the lien, but also subject to the

remedy given. The statute provides that: `Immediately after the first day of December the

county treasurer shall proceed to collect all delinquent personal property taxes, and if such

taxes are not paid on demand he shall distrain sufficient goods and chattels belonging to the

person charged with such taxes, if found within the county, to pay the same.' The lien

would be of little or no consequence if it was to cease upon the sale of the property to a

third party, as a transfer would be easy to make at any time, and the payment of the taxes

thus evaded in many instances. Taxes are usually collected in a summary manner; and

necessarily so, that there may be no harmful delay in providing the public revenue.

Unreasonable restrictions should not be placed thereon. The state is not required to resort

to judicial proceedings to enforce payment. If the contention of the plaintiffs was true, it

would destroy the object for which the lien was given, and would render that part of [the

lien statute] relating to personal property nugatory. No other means of enforcing the lien is

provided. The statutes referred to must be construed together, and one part will not be

given a construction that nullifies another part unless they are clearly inconsistent. It is

evident that the lien was given for the purpose of insuring the collection of the tax, and to

prevent a loss by reason of a transfer of the property. There is no reason why the same

remedy should not obtain against the party purchasing as against the original owner, so far

as the property purchased is concerned. The legislature had in mind the subjection of the

property to the payment of the tax, in giving this lien, rather than enforcing a mere personal

obligation of the original owner. [The summary collection statute] directs the distress of

goods and chattels, if found within the county; and this would indicate that it was not

intended that the original owner should be considered as the only person who could be

`charged with such taxes,' but that property might be taken anywhere in the county,

regardless of ownership or possession, where the lien had attached.

Mills, 47 P. at 760-61 (citations omitted).

In State of Nev. v. Yellow Jacket Silver Mining Co., 14 Nev. 220 (1879) the court discussed the

remedies provided under the revenue laws, including a summary seizure and sale statute

substantially similar to NRS 361.535, vis-a-vis the applicable statute of limitations. The court cited

a tax lien statute substantially similar to NRS 361.450 as providing a remedy against the property.

The court then stated “that the lien created continues indefinitely, or until the tax is paid, or the

property is sold under tax sale . . . the effect of which is to subject the property to the payment of

the tax, although it may have passed into other hands subsequent to the date of the lien.” Yellow

Jacket Silver Mining Co, 14 Nev. at 231.

The reasoning of the Mills court, and the statements of the Yellow Jacket court, are persuasive

and applicable to NRS 361.535 and NRS 361.450(1). The evident object of the Nevada legislature

in passing the laws was to subject personal property to not only the lien right but also the summary

seizure and sale remedy.

CONCLUSION TO QUESTION ONE

The summary seizure and sale remedy of NRS 361.535 is available to collect delinquent taxes

assessed against the specific personal property to which an NRS 361.450(1) lien has attached, but

is no longer owned by the person assessed.

QUESTION TWO

Whether the seizure and sale of personal property in accordance with NRS 361.535 satisfies

the requirements of procedural due process as applied to a security interest holder of record?

ANALYSIS

NRS 361.535(2) provides as follows:

The county assessor shall post a notice of the seizure, with a description of the property, in

three public places in the township or district where it is seized, and shall, at the expiration

of 5 days, proceed to sell at public auction, at the time and place mentioned in the notice, to

the highest bidder, for lawful money of the United States, a sufficient quantity of the

property to pay the taxes and expenses incurred. For this service the county assessor must

be allowed from the delinquent person a fee of $3.

NRS 361.535(4) provides:

Upon payment of the purchase money, the county assessor shall deliver to the purchaser

of the property sold, with a certificate of sale, a statement of the amount of taxes or

assessment and the expenses thereon for which the property was sold, whereupon the title

of the property so sold vests absolutely in the purchaser.

Both the Fourteenth Amendment of the United States Constitution and article 1, section 8 of

the Nevada Constitution provide that “no person shall . . . be deprived of life, liberty or property

without due process of law.” The Nevada Supreme Court has recognized that notice of a tax sale

of a mobile home pursuant to NRS 361.535(3) must be “reasonably calculated, under all the

circumstances, to apprise [property owners] of the pendency of the action and afford them an

opportunity to present their objection.” Keck v. Peckham, 93 Nev. 587, 590, 571 P.2d 813, 815

(1977), quoting Mullane v. Cent. Hanover Tr. Co., 339 U.S. 306, 314 (1950). The court has also

recognized that prior to a tax sale of land under NRS 361.565, “a county tax collector must give

personal notice to the holder of a recorded interest in the land.” Bell v. Anderson, 109 Nev. 363,

366, 849 P.2d 350, 352 (1993), citing Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798

(1983).

In Mennonite, the U.S. Supreme Court held that publication, posting, and mailed notice to the

owner of real property, prior to a tax sale, was inadequate to notify the holder of a recorded

mortgage, and did not meet the requirements of the Due Process Clause of the Fourteenth

Amendment. The Court stated:

When the mortgagee is identified in a mortgage that is publicly recorded, constructive

notice by publication must be supplemented by notice mailed to the mortgagee's last known

available address, or by personal service. But unless the mortgagee is not reasonably

identifiable, constructive notice alone does not satisfy the mandate of Mullane.

Mennonite, 462 U.S. at 798.

In Omnibank Iliff, N.A. v. Tipton, 843 P.2d 71 (Colo. Ct. App. 1992), the court held that a

holder of a recorded security interest in personal property was entitled to notice by mail or personal

service of tax sale, and statutory constructive notice was not sufficient under the due process

clause. Likewise, in Joe Self Chevrolet v. Bd. of County Comm'rs, 802 P.2d 1231 (Kan. 1990), the

court held that the sale of personal property for delinquent taxes assessed, without actual notice to a

secured creditor of record, violated due process and rendered the statute unconstitutional as

applied, although it was not unconstitutional on its face.

Based upon the above authorities, a holder of a recorded security interest in personal property,

is entitled to actual notice of a tax sale as a supplement to the constructive notice required by NRS

361.535(2). However, this does not end the inquiry. We must also determine whether due process

requires notice to a secured creditor of record prior to seizure of the personal property.

In T.M. Cobb Co. v. County of Los Angeles, 547 P.2d 431 (Cal. 1976), the purchaser of a

taxpayer's personal property at foreclosure sale conducted by secured creditors of taxpayer, sued

the city and county to recover taxes assessed against the property and paid by the purchaser under

protest. The court examined the constitutionality of the California statute authorizing the summary

seizure and sale of personal property to collect delinquent taxes. The court held that the statute did

not deny the assessee due process insofar as it authorized the seizure of the assessee's property.

The court reasoned as follows:

[T]he county has a substantial interest in the collection of revenue. The protection of this

interest justifies the summary seizure of property. Only in this manner can the assessee be

prevented from dissipating his assets and impeding the collection of the tax which he owes.

While seizure of the property may deprive the assessee or a third party claimant such as

plaintiff of the use of the asset during the period between the seizure and the final

determination of rights in the property at an administrative hearing, the collection of taxes

is one of those extraordinary situations where `summary procedure may well meet the

requirements of due process . . . .'

Id. at 436 (citations omitted).

The reasoning and holding of the California Supreme Court in T.M. Cobb as set forth above

applies to and answers the question at hand. Procedural due process does not require notice to a

secured interest holder of record prior to the seizure of personal property authorized by NRS

361.535.

CONCLUSION TO QUESTION TWO

A holder of a recorded security interest in personal property is entitled to notice by mail or

personal service prior to tax sale of the personal property as a supplement to the constructive notice

required by NRS 361.535 in order to satisfy the requirements of due process. However, due

process does not require notice to a mere holder of a recorded security interest prior to seizure of

the property by the county assessor.

FRANKIE SUE DEL PAPA

Attorney General

By: HARRY J. SCHLEGELMILCH

Deputy Attorney General

__________

OPINION NO. 96-29COUNTIES; ELECTIONS; PUBLIC OFFICERS;SECRETARY OF

STATE: When a county commissioner is elected to a 4-year term; his seat becomes vacant due to

resignation, death, or removal during the first two years of the term; and an appointment is made

by the governor to fill the vacancy, this county commission seat must appear on the next general

election ballot.

Carson City, October 10, 1996

The Honorable Robert S. Beckett, Nye County District Attorney, Post Office Box 39, Pahrump,

Nevada 89041

Dear Mr. Beckett:

You have requested an opinion from this office regarding the definition of "next general

election" as found in NRS 244.040.

QUESTION

When a county commissioner is elected to a 4-year term; his seat becomes vacant due to

resignation, death, or removal during the first two years of the term; and an appointment is made

by the governor to fill the vacancy, must this county commission seat appear on the next general

election ballot?

ANALYSIS

A Nye County Commissioner was elected in November 1994 for a 4-year term and his seat

became vacant in 1996.

When a vacancy occurs in a board of county commission, the governor fills the vacancy by

appointing a suitable person of the same political party as the most recent holder of the vacant

office. NRS 244.040(1). A vacancy can occur due to resignation, death, or removal. In August

1996, the governor filled this vacancy by appointment.

The term of office for the appointed person extends until the day before the first Monday in

January following the next general election. NRS 244.040(2). In order to answer this question, the

phrase "next general election" must be defined.

In 1948 the Attorney General issued an opinion addressing this same question. Op. Nev. Att'y

Gen. No. 571 (February 9, 1948). The facts were almost identical to those here. A 4-year county

Commissioner Copeland died in August 1996.

commissioner resigned a few months after taking office. The governor appointed a replacement.

The question was whether the newly appointed county commissioner was appointed for the entire

remainder of the unexpired term or whether a successor was to be elected at the next biennial

election.

The Attorney General concluded the appointment was for the entire remainder of the term. Id.

In reaching this conclusion the Attorney General relied on three Nevada Supreme Court cases in

which the court had addressed a similar issue regarding filling vacancies in offices of prosecuting

attorney, Sawyer v. Haydon, 1 Nev. 64 (1865); county clerk, State ex rel Bridges v. Jepsen, 48

Nev. 64, 227 P. 588 (1924); and state senate, Grant and McNamee v. Payne, 60 Nev. 250, 107

P.2d 307 (1940). In Bridges the court stated the next general election meant the "next general

election held at the time fixed by law for the election of county offices." 48 Nev. at 70. In Grant

the court defined general election to be "the general election at which state senators are ordinarily

elected." 60 Nev. at 254. Sawyer dealt with laws of the Territory of Nevada which did not provide

in any manner for an election to fill a fraction of a term. "No law was passed to authorize an

election by the people to fill a vacancy, or to elect for a fractional term." 1 Nev. at 66-67.

In 1954 the Nevada Supreme Court again dealt with the phrase "next general election." Brown

v. Georgetta, 70 Nev. 500, 275 P.2d 376 (1954). In this case the court interpreted the phrase "next

general election" as used in the statute providing the method to fill a vacancy in the office of

United States Senator. The court concluded "next general election . . . means the ensuing biennial

election." Id at 506. In reaching its conclusion the court discussed both Bridges and Grant. Id. at

502-04. However, the court based its conclusion on the Seventeenth Amendment to the United

States Constitution and construction of the amendment by Nevada officials from the time the

amendment was adopted in 1913 until 1954. 70 Nev. at 504-06.

The Attorney General in 1960 issued an opinion again pertaining to the length of term of an

appointee to an unexpired term. Op. Nev. Att'y Gen. No. 168 (July 12, 1960). A county

commission seat became vacant during the first two years of the 4-year term. The governor filled

the vacancy by appointment. The question was whether the appointment was for the duration of

the term or until the next general election. The Attorney General determined the office should

appear on the ballot of the next general election and the term would be for the duration of the

predecessor's term (two years).

In reaching this conclusion the Attorney General relied on the Brown case and the reasoning

that any other construction of NRS 244.040(2) would render that subsection meaningless.

We affirm Op. Nev. Att'y Gen. No. 168 (July 12, 1960) and overrule Op. Nev. Att'y Gen. No.

571 (February 9, 1948) based on the intervening Nevada Supreme Court Case, Brown, and in light

of the reasoning in the 1960 Attorney General Opinion.

CONCLUSION

When a county commissioner is elected to a 4-year term; his seat becomes vacant due to

resignation, death, or removal during the first two years of the term; and an appointment is made

by the governor to fill the vacancy, this county commission seat must appear on the next general

election ballot.

FRANKIE SUE DEL PAPA

Attorney General

By: KATERI CAVIN

Deputy Attorney General

__________

OPINION NO. 96-30EDUCATION: Members of State Board of Education may review pilot

proficiency examinations for grades 11 and 12 to the extent that the review relates to their official

duties. Such review must be conducted under supervision of Department of Education staff to

provide security for the examination. Parents may not review the current proficiency exam for

grades 4 and 8.

Carson City, October 10, 1996

Ms. Mary Peterson, Superintendent of Public Instruction, Department of Education, 700 East Fifth

Street, Carson City, Nevada 89710

Dear Ms. Peterson:

You have asked this office for an opinion regarding NRS 389.015(5) and confidentiality of

achievement and proficiency examinations.

The legislature provided funding to the State Department of Education (Department) to

develop a new high school exit examination to be administered to students in grades 11 and 12.

Passing this examination is a requirement for graduation from Nevada public schools. The

Department hired staff, appointed teams of educators which have reviewed existing test item

banks, developed new test items, and received training in the standard setting process. At this time

a pilot examination in seven versions is ready to be administered as a pilot test. The pilot testing is

anticipated to begin early November 1996. Based on the results of the pilot test, final forms of the

examination will be developed for administration in the fall of 1997.

The State Board of Education (Board) is an 11-member board. NRS 385.021. The members

are elected and some are currently public school teachers or school district administrators. A

Board member who is also an administrator of a math institute in Clark County School District has

requested that he be given a copy of the pilot examination to keep in his possession for purposes of

review. As State Superintendent of Public Instruction you have offered to allow him or any other

board member to review the test, but under conditions designed to protect security of the test.

In another matter related to NRS 389.015, certain parents in Nye County School District desire

to see the test questions of the TerraNova Test prior to administration of the test to their children in

grades 4 and 8.

QUESTION ONE

May Board members review the pilot proficiency examination for students in grades 11 and

12? If so, under what conditions?

ANALYSIS

NRS 385.347(1) and (2) mandate administration of state wide examinations in grades 4, 8, and

11 as part of a program of accountability for quality of Nevada public schools and educational

achievement of the pupils in every school district. The report of the achievement is based on

results of the examinations administered pursuant to NRS 389.015.

NRS 389.015(1) provides that all public school districts shall administer examinations for

proficiency in reading, writing, and mathematics before completion of grades 4, 8, and 11. NRS

389.015(5) further directs as follows:

The state board shall prescribe standard examinations of achievement and proficiency to

be administered pursuant to subsection 1. The examinations on reading and mathematics

prescribed for grades 4 and 8 must be selected from examinations created by private

entities and administered to a national reference group, and must allow for a comparison of

the achievement and proficiency of pupils in grades 4 and 8 in this state to that of a national

reference group of pupils in grades 4 and 8. The questions contained in the examinations

and the approved answers used for grading them are confidential, and disclosure is

unlawful except:

(a) To the extent necessary for administering and evaluating the examination.

(b) That a disclosure may be made to a state officer who is a member of the executive or

legislative branch to the extent that it is related to the performance of that officer's duties.

instruction determines that the content of the questions and answers is not being used in a

current examination and making the content available to the public poses no threat to the

security of the current examination process. [Emphasis added.]

The statute specifically states that test items and answers are confidential and must not be

disclosed. The statute does allow an exception to the prohibition for state officers of the executive

branch.

A Board member is a state officer who is a member of the executive branch. See Op. Nev.

Att'y Gen. No. 246 (July 21, 1965).

Disclosure to the Board member is permissible to the extent that it is necessary for the member

to perform his or her official duties. Not all of the questions that are being tested in the pilot

program will be in the final form. Some questions will be discarded for various reasons, and some

will be kept. The decision as to the final form of the test will be made by the Board. It is

anticipated that the selection of the final form will come before the Board in March or April of

1997. You may disclose the pilot test to Board members because of the members' need to review

the test items for the purpose of making the ultimate decision. Similarly, Board members may also

review the proposed final form of the test.

Your question also asks under what conditions the test items may be viewed. There are strict

protocols for the security of tests that must be followed by teachers and school administrators who

receive the tests to administer to the students. The protocols have been the policy and practice of

the Department and were codified in regulation in September 1996. The whereabouts of each test

must be accounted for at all times, they must be locked up when not attended, and test questions

and answers in current use must not be disclosed except for purposes of administering the test.

Whether exposure of the test items is inadvertent or deliberate, the potential for harm is the same.

Not only is there potential for compromise of the goal of the testing because assessment of the

performance of schools and students would be inaccurate, but potentially new tests would have to

be purchased or developed if the breach of security was substantial. These concerns are not abated

simply because the test is at the pilot stage and the final form is not yet determined.

You have made the pilot forms available but required that Board members review the test items

at the Department offices in Carson City or Las Vegas with staff supervision. The arrangements

do not set a limit on how much time the member will need or a limit on how many days the

materials will be available for review. Nor do they require that the materials only be reviewed

during regular business hours. In addition, the time for the Board to select the final form of the test

is not until March or April 1997. These arrangements reasonably provide for security of the test

NRS 385.355 is a similar statute prohibiting disclosure of General Educational Development examinations, commonly known as the G.E.D.,

except that disclosure may be made to a state officer of the executive branch to the extent that it relates to official duties.

forms assuring that only persons with the statutory authorization have access and accommodate the

need of the Board members to perform their official duties.

CONCLUSION TO QUESTION ONE

Board members may review the pilot proficiency examination for grades 11 and 12 to the

extent that it relates to their official duties. Since members will be prescribing the final form of the

exam, their review of the pilot forms and the final form relates to that duty. It is reasonable to limit

review of the examination to the security of Department offices under staff supervision because of

the duty of the State Superintendent of Public Instruction to protect security of the test and such

conditions do not prevent board members from an adequate review.

QUESTION TWO

May parents review the proficiency examinations administered to students in grades 4 and 8?

If so, under what conditions?

ANALYSIS AND CONCLUSION TO QUESTION TWO

NRS 389.015 does not contain an exception to the nondisclosure and confidentiality

requirement for parents to review the examination. We have carefully considered whether there

was any provision that would allow review by parents and found none. It cannot be said that such

a review is necessary to administration or evaluation of the examination, or that the "state officer"

exception applies. The examination can still be given by the school district whether an individual

parent has reviewed the questions beforehand.

The only time that test questions would be disclosable to parents, or any other member of the

public, would be if the content of the questions and answers were no longer being used in a current

examination and making the content available to the public posed no threat to the security of the

current examination. NRS 389.015(5)(c). The current test is new, and has never before been used

in this state or another state. Therefore, at this time there are no test questions that could be

disclosed.

FRANKIE SUE DEL PAPA

Attorney General

By: BROOKE A. NIELSEN

Assistant Attorney General

__________

OPINION NO. 96-31TRANSPORTATION, DEPARTMENT OF; BOARD OF EXAMINERS;

CONTRACTS: The Department of Transportation has independent authority to enter into

independent services contracts and is not required to submit these to the Board of Examiners for

prior approval.

Carson City, November 4, 1996

Thomas E. Stephens, P.E., Director, Nevada Department of Transportation, 1263 South Stewart

Street, Carson City, Nevada 89712

Dear Mr. Stephens:

You have stated that there is a recurring question outside of the Department of Transportation

(NDOT) as to whether NDOT’s contracts for services of independent contractors need to be

submitted to the State Board of Examiners for approval prior to their execution. Under its current

practice, NDOT does not submit any of its contracts to the State Board of Examiners for approval.

As a result, staff for the Board of Examiners and others, from time to time, have expressed concern

as to the legality of NDOT’s practice. More recently, you have learned that a legal opinion was

issued by Legislative Counsel indicating that contracts executed by NDOT for certain services are

subject to filing and approval requirements of section 284.173(5), (6) of the Nevada Revised

Statutes. You have asked this office for an opinion on this issue.

QUESTION

Must NDOT submit any of its contracts for services of independent contractors to the State

Board of Examiners for approval prior to their execution and effectiveness?

ANALYSIS

Our analysis starts with a review of the applicable state statutes and the rules for statutory

construction. Following that review will be a discussion of past and current practices regarding the

subject contracts and the policy reasons for contract review procedures. Our analysis will then turn

to a review of the legislative counsel opinion.

A. Statutes and Statutory Construction.

Pursuant to NRS 284.173, heads of departments may contract for services of independent

contractors. Each contract for services of a person as an independent contractor must be submitted

to the Board of Examiners for approval before becoming effective. Subsection (7)(a), however,

provides that copies of contracts executed by NDOT "for any work of construction or

reconstruction of highways" need not be filed with or approved by the State Board of Examiners as

provided in subsections (5) and (6). There is no definition of "highways" or any other explanation

of the phrase "construction or reconstruction of highways" in chapter 284.

The Department of Transportation is governed largely by chapter 408 of NRS which is entitled

"Highways and Roads." A brief examination of several of the statutes contained in chapter 408

indicates that, in addition to the exception provided NDOT under NRS 284.173(7)(a), the

legislature has supplied NDOT with broad authority to enter into contracts. Section 408.100,

which is a broad statement of legislative intent, indicates that the legislature has given NDOT

significant authority with respect to management of state highways.

Another statute concerns

duties of the NDOT Board of Directors and provides that the board shall: "5. Execute or approve

all instruments and documents in the name of the state or the department necessary to carry out the

provisions of this chapter. 6. . . . . delegate to the director such authority as it deems necessary

under the provisions of this chapter." NRS 408.131(5), (6) (emphasis added). The NDOT Board

of Directors has seven members "consisting of the governor, the lieutenant governor, the attorney

general and the state controller, who serve ex officio, and three members who are appointed by the

governor. . . ." NRS 408.106(1). Of significance is the fact that the Board of Examiners is

NRS 408.100 provides in pertinent part:

4. [T]he legislature places a high degree of trust in the hands of those officials whose duty it is, within the limits of available funds, to

plan, develop, operate, maintain, control and protect the highways and roads of this state, for present as well as future use.

5. To this end, it is the express intent of the legislature to make the board of directors of the department of transportation custodian of the

state highways and roads and to provide sufficiently broad authority to enable the board to function adequately and efficiently in all areas

of appropriate jurisdiction, subject to the limitations of the constitution and the legislative mandate proposed in this chapter. [Emphasis

added.]

comprised of the governor, the secretary of state, and the attorney general. NRS 353.010. Of those

three members, only one, the secretary of state, is not also a member of the NDOT Board of

Directors.

As with the Board of Directors, the legislature has provided the Director of NDOT with a high

degree of authority:

1. With the approval of the board, the director may execute all plans, specifications,

contracts and instruments in the name of State of Nevada necessary for the carrying out of

the provisions of this chapter, except those construction contracts as provided in NRS

408.327 and 408.347.

2. The director has such other power and authority as is necessary and proper under the

provisions of this chapter, or as the board delegates to him.

NRS 408.205 (emphasis added).

The Director is specifically and statutorily authorized to

contract for "technical services required for the purpose of this chapter." NRS 408.225.

In connection with the Director’s powers indicated above, NRS 408.172(5) provides "[a]ll

contracts, instruments and documents executed by the department must be first approved and

endorsed as to legality and form by the [department’s] chief counsel." No other state agency is

required to have its contracts approved as to "legality," nor is any other state agency required to

have a "chief counsel" appointed by the Attorney General at the request and approval of its board

of directors.

While chapter 408 provides NDOT with broad authority concerning contracts, it contains no

provision requiring NDOT to submit all of its independent contractor agreements to the Board of

Examiners for review and approval. Notably, chapter 408 does mention the Board of Examiners in

the context of payment of NDOT’s bills out of the state highway fund:

All bills and charges against the state highway fund for administration, construction,

reconstruction, improvement and maintenance of highways under the provisions of this

chapter must be certified by the director and must be presented to and examined by the

state board of examiners. When allowed by the state board of examiners and upon being

audited by the state controller, the state controller shall draw his warrant therefor upon the

state treasurer.

NRS 408.235(6). Additionally, and more importantly, chapter 408 does require any contracts into

which NDOT wishes to enter with a board member or employee to be submitted "to the state board

of examiners for approval." NRS 408.353(2). Thus, the legislature knows how to specify that

NDOT contracts must be so submitted. This is an indication that, had the legislature intended that

NDOT independent contractor agreements be approved by the Board of Examiners, the legislature

Notably, if one of the four constitutional offices (the offices of governor, lieutenant governor, attorney general, and state controller) on the

NDOT Board of Directors is vacant, "the secretary of state shall serve ex officio on the board until the vacancy is filled." NRS 408.106(1) (emphasis

added).

NRS 408.327, referenced in NRS 408.205(1), provides procedures for the advertising for bids, "for such work according to the plans and

specifications prepared by him." NRS 408.347, which concerns execution of construction contracts, provides:

1. All construction contracts authorized by NRS 408.327 must be executed in the name of the State of Nevada and must be signed by the

chairman of the board and attested by the director, under the seal of the department, signed by the contracting party or parties, and the form

and legality of such contracts approved by the attorney general or chief counsel of the department.

2. When the contract is fully executed, a copy of the same, including plans and specifications, must be filed in the office of the

department at Carson City, Nevada, and with the clerk of the board of county commissioners of the county in which the work is to be

performed.

would have specifically so provided. See Clark County Sports v. City of Las Vegas, 96 Nev. 167,

174, 606 P.2d 171, 176 (1980).

Finally, chapter 408 does provide a definition of "highways" which we must note when

determining the meaning of the phrase in NRS 284.173 "any work of construction or

reconstruction of highways." The definition of "highway"

contained in chapter 408 reads:

"Highway" means roads, bridges, structures, culverts, curbs, drains and all buildings,

communication facilities, services and works incidental to highway construction,

improvements and maintenance required, laid out, constructed, improved or maintained as

such pursuant to constitutional or legislative authorization.

NRS 408.070 (emphasis added). If this is the definition applied to the phrase in NRS 284.173, it

appears that most contracts for services of independent contractors for NDOT would fall within

that exemption from Board of Examiners approval. Most of the work NDOT performs under

chapter 408 is incidental to highway construction and maintenance.

We start our construction of these statutes with the premise that statutes must be construed to

give effect to the legislative intent. Roberts v. State, Univ. of Nevada System, 104 Nev. 33, 37, 752

P.2d 221, 223 (1988); Sheriff v. Morris, 99 Nev. 109, 117, 659 P.2d 852, 858 (1983). Statutory

interpretation should not yield an unreasonable result if a more reasonable result is available.

Breen v. Caesars Palace, 102 Nev. 79, 82, 715 P.2d 1070, 1072 (1986); State Indus. Ins. Sys. v.

Jesch, 101 Nev. 690, 694, 709 P.2d 172, 175 (1985). When there is more than one statute

regarding the same subject, the statutes must be construed to render them compatible if possible.

State v. Rosenthal, 93 Nev. 36, 45, 559 P.2d 830, 836 (1977); City of Carson v. County Comm’rs,

47 Nev. 415, 423, 224 P. 615, 617 (1924). "Where a general and a special statute, each relating to

the same subject, are in conflict and they cannot be read together, the special statute controls."

Laird v. State of Nev. Pub. Emp. Ret. Bd., 98 Nev. 42, 45, 639 P.2d 1171, 1173 (1982) (citing

cases). See also McIntosh v. Streight, 110 Nev. 1148, 1151, 881 P.2d 1337, 1339 (1994); State

Indus. Ins. Sys. v. Surman, 103 Nev. 366, 368, 741 P.2d 1357, 1359 (1987).

In the situation before us, NRS 284.173 generally provides authority to state agencies to

contract for services of independent contractors and generally requires prior approval of the Board

of Examiners. Numerous exceptions to the prior approval are listed, one of which is for NDOT

contracts as stated above. Chapter 408, however, contains more specific provisions for the

operation of NDOT, including the authority of NDOT to enter into agreements. Notably, NRS

284.173(7)(a) was added to the Nevada Revised Statutes in 1961 (Act of April 6, 1961, ch. 345, §

1, 1961 Nev. Stat. 687) and has remained unchanged since then except for a cosmetic change in

1976 which replaced the phrase "Department of Highways" with "Department of Transportation."

(Act of June 5, 1979, ch. 683, § 91, 1979 Nev. Stat. 1791-92). The enabling statutes for NDOT

have existed in almost the same form for almost 40 years. See Act of April 1, 1957, ch. 370, §§

27(5), 28(5), 41(1), 1957 Nev. Stat. 666, 668. Thus, it seems logical that we should look to how

the executive branch has interpreted interplay of these statutes with regard to the approval of

independent contracts. As a matter of fact, an administrative construction of statutes which is

within the language of the statutes will not be readily disturbed by the courts. Dep't of Human Res.

v. UHS of The Colony, 103 Nev. 208, 211, 735 P.2d 319, 321 (1987). The construction adopted by

officials entrusted with administration of the independent contracts at issue is of persuasive force.

See Alper v. State ex rel. Dep't of Highways, 96 Nev. 925, 929, 621 P.2d 492, 495 (1980). With

Three other chapters of the Nevada Revised Statutes contain statutes defining "highway": chapter 482-vehicle licensing, registration (NRS

482.045); chapter 483-driver’s license and schools (NRS 483.030); and chapter 484-traffic laws (484.065). All of these definitions generally provide

that "highway" means the entire width between the boundary lines of every way maintained by a public authority when any part of such way is open

to the use of the public for purposes of vehicular traffic. None of these statutes concerns operation of NDOT in chapter 408 or construction or

reconstruction of highways as discussed in NRS 284.173(7)(a).

this in mind, we turn to a review of how the state has processed NDOT independent contracts over

almost four decades.

B. History of Approval of NDOT Independent Contractor Agreements.

We have been informed that NDOT has never submitted independent contracts to the Board of

Examiners for filing, review, or approval. As a matter of fact, in 1983 a former NDOT Assistant

Director requested a legal opinion from NDOT legal counsel regarding this very issue. In a

memorandum dated August 30, 1983, an NDOT Assistant Chief Counsel and Deputy Attorney

General addressed the issue. He stated that there had been some question as to whether certain

types of independent contracts needed to be submitted to the Board of Examiners. He concluded in

his brief three-page memorandum, based on review of some of the statutes noted above, that the

then-present practice by NDOT of not submitting independent contracts for approval was

"supported by legal authority and statutory construction."

Memorandum to NDOT Assistant

Director Gene Phelps from Deputy Attorney General William Raymond of August 30, 1983, at 3.

The opinion relied heavily on the broad definition of highways in chapter 408 as providing breadth

to the general exemption in NRS 284.173(7)(a). It was also pointed out that the legislature had

over 22 years or 11 sessions to limit the scope of the exemption in NRS 284.173(7)(a) and had not

done so, thus indicating legislative approval of the practices followed by NDOT.

Based on this

1983 memorandum, NDOT continued to follow and has continuously followed to date, its practice

of not submitting its independent contracts to the Board of Examiners. NDOT was entitled to rely

on this opinion. Cf. Cannon v. Taylor, 88 Nev. 89, 91-92, 493 P.2d 1313, 1314 (1972)

(government officials are entitled to rely in good faith on attorney general opinions and avoid

damages responsibility).

The issue again arose in 1991 when the clerk of the Board of Examiners asked the Attorney

General several questions concerning hiring independent contractors by NDOT. The first four

questions concerned the propriety of NDOT contracting with former employees and the criteria in

determining whether an individual is considered an independent contractor or an employee. The

fifth and final question submitted stated was: "Is it the Attorney General's opinion that NRS

284.173 contracts should continue to be exempt from review by the Board of Examiners?"

Memorandum to Deputy Attorney General James T. Spencer from Director of Department of

Administration Judy Matteucci of May 28, 1991 (emphasis added).

As had been the case for

many years, NDOT was not submitting independent contracts to the Board of Examiners for prior

It was stated in the memorandum that the opinion was not to be construed or held out as an official attorney general's opinion which would

require more in-depth research and analysis. Nevertheless, we have been informed that NDOT has relied on this opinion in not obtaining prior

approval of independent contracts since that time.

The opinion concluded:

[T]he present practice as followed by the Department is supported by legal authority and statutory construction. If we should suggest

otherwise, we can, as can you, envision just another layer of delay for the approval request standing between the contractor and the

employer. I do not feel that this was intended. I further do not feel that NRS 284.173(7)(a) should be read or construed in any manner so

as to limit or minimize its full operation and effectiveness.

Memorandum of August 30, 1983, at 3.

In the memorandum dated May 28, 1991, the then-Director of the Department of Administration referred to contracts concerning the following:

(1) contract file purging and related training; (2) chip seal research and training; (3) development of Incident Management Plan; (4) completion of

Strategic Highway Research program; (5) updating material safety data sheets; (6) Upgrading snow removal/avalanche control plan; (7) coordinating

NDOT’s portion of the Pacific Snow Conference; (8) development of work program procedures; (9) Project Management training; (10) computer

software training for Construction Division; (11) training new employees in Programs and Budgets Division; (12) bridge inspection; (13) landscape

design and plan development; (14) erosion control consulting and training; (15) contractor claim defense research and preparation. The memorandum

also requested that the written opinion include "the answer as to whether it is the Attorney General’s opinion that such contracts should continue to be

exempt from Board of Examiners review." The wording of the inquiry illustrates the assumption that, at the very least, a very broad range of NDOT

contracts had been exempt from Board of Examiners review at least by practice.

approval. The answer was: "Currently NDOT is exempt from Board of Examiners review for

independent contracts having to do with 'any work of construction or reconstruction of highways.'

NRS 284.173(7)(a). The Attorney General believes that amendment or abolishment of that

exemption is a policy decision properly left to the Legislature." Letter Opinion to Director of

Department of Administration Judy Matteucci from Deputy Attorney General James T. Spencer of

May 30, 1991. Although there was no legal analysis of the situation, it appears that the Director of

the Department of Administration (and clerk to the Board of Examiners) was acknowledging the

long-standing practice of NDOT not to submit, and of the Board of Examiners not to approve,

NDOT independent contracts.

In order to understand the ramifications of an interpretation of the statutes involved here, we

have obtained information from NDOT regarding its approval process for independent contracts.

NDOT presently processes approximately 600 nonconstruction contracts each year. Of these,

more than 200 are what would be considered as independent services agreements. These consist of

landscape and janitorial services, engineering design, right-of-way acquisition and condemnation,

appraisal services, computer services,

security assessments, expert witnesses, training services,

utility adjustments, and DOT facility construction, maintenance, and repairs. Additionally, NDOT

constantly monitors these and processes numerous amendments each year. Requiring those

contracts to be filed with and approved by the Board of Examiners would significantly impede the

efficiency of this process. The Board of Examiners currently meets every four to five weeks.

According to a Board staff member, a state agency requesting Board approval of a contract must

submit it at least three weeks prior to the meeting for which it is calendared. If the contract is

found to contain any errors, including insignificant errors, it is rejected and sent back to the agency.

Under such circumstances, the agency will not be able to get the contract before the Board until the

following month. If a contract generally takes about two to three weeks to go through the NDOT

review process, it is reasonable to conclude that, even under ideal circumstances, there will be at

least a 4-week addition to the process of contract approval and execution. What benefits this could

provide is not known.

We have also located numerous federal statutes and regulations binding NDOT with regard to

engagement of consultants, or independent contractors. These federal laws apply because NDOT

receives federal highway funds which come with numerous requirements. When federal money is

involved, NDOT must follow award procedures for contracts for construction management,

feasibility studies, preliminary engineering, design, engineering, surveying, mapping, or

architectural related services. 23 U.S.C. § 112 (1995). There are laws against discrimination, 23

U.S.C. § 140, and restrictions on lobbying and on use of federal funds by contractors, 31 U.S.C. §

1352. There are also specific regulations regarding engineering and design related service

contracts, 23 C.F.R. pt. 172 (1993), and the Federal Acquisition Regulations, 48 C.F.R. pt. 31,

require audits of certain consultant agreements. The NDOT Board of Directors or NDOT staff

must be familiar with these requirements and apply them for independent contracts.

The general statute requiring Board of Examiner approval of independent services contracts

exempts NDOT-executed contracts for any work of construction or reconstruction of highways.

Chapter 408 defines "highways" to include any services and works "incidental to highway

construction, improvements and maintenance." The mission of NDOT in chapter 408 of NRS is

largely to construct, improve, and maintain highways. Contracting for independent services to

carry out that mission appears to be largely incidental to that mission.

See Black's Law

It may be arguable that some computer services fall within the separate exemption from Board of Examiner contract review for "[c]ontracts

executed with business entities for any work of maintenance or repair of office machines and equipment." NRS 284.173(7)(e).

It should be pointed out that NDOT also has responsibilities to develop and coordinate balanced transportation policy and planning for railways,

urban public transportation and aviation. NRS 408.233(1). It may be stretching it to say that these duties are "incidental" to highway construction or

maintenance. Nevertheless, the statute has been in existence for more than 15 years. See Act of June 5, 1979, ch. 683, § 57, 1979 Nev. Stat. 1782.

Dictionary 904 (4th ed. 1968) (defining "incidental"). It appears that administrative construction

of the statutes by practice of NDOT and the Department of Administration is within the language

of the statutes.

We believe the appropriate reading of NRS 284.173, in light of the more specific statutes in

chapter 408 and the practices and understandings followed by NDOT and the state Department of

Administration for several decades, is that independent contracts executed by NDOT need not be

filed with or have prior approval of the Board of Examiners. The broad definition of "highways"

in chapter 408 provides meaning to the exemption in NRS 284.173(7)(a) and includes any services

and works incidental to highway construction.

C. Impact of Legislative Counsel Opinion.

As previously noted, the legislature has not changed interpretation of the statutory interplay by

the executive branch for several decades. It would seem that, if the legislature intended that NDOT

submit any or all of its independent contracts to the Board of Examiners for review and approval,

the legislature could have easily provided such a requirement. See State, Dep't of Motor Vehicles

& Public Safety v. Brown, 104 Nev. 524, 526, 762 P.2d 882, 883 (1988); Penrose v. Whitacre, 62

Nev. 239, 243, 147 P.2d 887, 889 (1944).

In spite of the broad definition of "highways" in chapter 408 and the long-standing practice of

the executive branch, the Legislative Auditor recently requested a legal opinion of Legislative

Counsel regarding this subject. Specifically, the inquiry was whether NDOT’s contracts for certain

services

are required to be filed with and approved by the Board of Examiners. In a nutshell,

Legislative Counsel concluded that the contracts executed by NDOT for the services specified by

the Legislative Auditor were subject to filing and approval requirements of NRS 284.173. With all

due respect to the Legislative Counsel, we disagree.

The opinion of the Legislative Counsel did note the broad definition of "highways" in chapter

408 but only said:

NRS 408.070 specifically refers to “services and works” which are “incidental to highway

construction[.]” Thus it is reasonable to conclude that the exemption provided in

paragraph (a) of subsection 7 of NRS 284.173 is broad enough to include a contract

executed with an independent contractor which is “incidental” to the construction of a

highway.

Letter to Legislative Auditor from Legislative Counsel of January 31, 1996, at 3 (emphasis added).

Immediately following this quotation, and without any further analysis, the opinion states, "Despite

this broader interpretation," however, NRS 284.173 still requires NDOT to file with, and obtain the

approval of, the Board of Examiners any contracts not for any work of construction or

reconstruction of highways. Id. The opinion failed to note that most of the work performed by

NDOT involves "services and works incidental to highway construction" The difficulty here is

that most of the independent contracts executed by NDOT are for the purpose of carrying out its

mission to build and maintain "highways" as defined by 408.070.

We have not been informed as to whether there have been any independent services contracts in these areas or whether the review process is any

different for these. We reserve judgment as to contracts in these areas.

Listed in the request were contracts for such services as: (1) conversion of computer systems; (2) development of policy and procedure manuals

for accounting and maintenance; (3) audit services; (4) geological studies; (5) expert witnesses; (6) leases of communication equipment; (7) personal

computer training; (8) acquisition of rights-of-way; and (9) airport system planning consultants.

The Legislative Counsel opinion also stated that NDOT’s interpretation of NRS 284.173(7)(a),

"is of questionable import" because NDOT "has not been specifically charged with the

administration of the provisions of NRS 284.173, but is simply an agency to which provisions of

NRS 284.173 apply." Id. at 4, citing Adams Fruit Company, Inc. v. Barrett, 494 U.S. 636 (1990).

The opinion failed to note, however, that NRS 284.173(7)(a) is only one piece of the statutory

scheme from which NDOT derives its policies and procedures with respect to its independent

contracts. The opinion failed to recognize that the majority of NDOT’s reliance on the legality of

its practice concerning the processing of its contracts is based on the numerous statutes within

chapter 408 which provide the NDOT Board and Director with extremely broad authority with

respect to independent contracts.

Importantly, while failing to note the decades-long practice of both NDOT and the Department

of Administration with respect to NDOT independent contracts, the Legislative Counsel opinion

theorized that NDOT’s interpretation of NRS 284.174(7)(a) might be based upon a 1992 proposal

by the Legislative Commission’s Subcommittee on Feasibility of Privatizing the Provision of

Governmental Services. See Legislative Counsel Bureau Bulletin No. 93-18. The opinion states

that "the amendment was proposed by the Subcommittee based on a perceived need to clarify the

limit on the authority of the Department of Transportation to enter into certain contracts without

the approval of the State Board of Examiners." Opinion at 4.

Because the "clarifying

amendment" was indefinitely postponed by a 1993 senate committee, Legislative Counsel asserted,

without citing authority, "that a court would not consider the action of four senators . . . as

controlling evidence of the intent of the entire Legislature."

Legislative Counsel concluded that

the language of NRS 284.173 is plain and unambiguous and, thus, we cannot go beyond the face of

the statute to lend it a contrary construction.

Again, reading the statutes in pari materia, we disagree that it is clear that the language of NRS

284.173 mandates prior approval of all NDOT independent agreements. This would nullify a large

number of statutes in chapter 408, contrary to the rules of construction. This would also nullify the

historical interpretation by practice of NDOT and the Department of Administration. Moreover,

Senate Bill No. 158 (February 1, 1993) proposed several changes to NRS 284.173. It was proposed that subsection 7(a) be amended by

replacing the word "highways" with the phrase "a highway," so that the subsection would read: "Contracts executed by the department of

transportation for any work of construction or reconstruction of a highway." The bill also proposed to add subsection 8 to NRS 284.173:

As used in this section, "work of construction or reconstruction of a highway" includes only work and services directly related to the

actual construction, reconstruction, improvement, maintenance or design of a highway. The term does not include:

(a) Administrative work or service; or

(b) Other work or service which is merely incidental to the construction, reconstruction, improvement, maintenance or design of a

highway.

The Senate Committee on Government Affairs discussed Senate Bill No. 158 on April 14, 1993. On April 14, 1993, Ron Hill, Deputy Director,

Nevada Department of Transportation, testified against the bill. Mr. Hill’s main concern was that the increased time necessary to execute NDOT

contracts caused by having NDOT’s contracts reviewed by the Board of Examiners may hinder the department’s ability to complete federal aid

projects. NDOT’s agreements are authorized through its Board of Directors, and NDOT’s audits are performed by its own internal auditing division,

legislative auditors, and the Federal Highway Administration. Therefore, Mr. Hill felt that passage of Senate Bill 158 would add a bureaucratic step

that would not serve to save money or streamline the process of handling federal funds. On April 16, 1993, based on Mr. Hill’s testimony, Senator

Hickey moved to postpone indefinitely Senate Bill 158. In response to Senator Raggio’s opposition, Senator Hickey stated:

With all due respect, the testimony that we heard here, it interferes with the fluid operation of the Department of Transportation in it's

entering in of contracts [sic

]. That interference could cause delay and also an increase in expenses. With that testimony that we heard and

under the present system it seems to be working well, I support my motion.

Minutes of April 16, 1993, hearing on S.B. 158 before the Senate Committee on Government Affairs at 895. Senator Lowden, who seconded the

motion, added:

My opinion was that it was another layer of bureaucracy that I believe there are two or three members of the board of examiners that are

already on the board of transportation and it did seem to me to be bureaucratic.

Id. The motion then passed. The above statements indicate a conscious decision, on the part of the Committee, to reject the bill.

the fact that the legislature had the opportunity to amend the statute to change this historical

interpretation and practice is indicative of an intent to reject the idea of a change. See McKay v.

Board of County Comm'rs of Douglas County, 103 Nev. 490, 492 n.2, 746 P.2d 124, 125 n.2

(1987). If the legislature had wished or intended to limit the breadth and scope of the exemption

set forth in subsection 7(a) of NRS 284.173 in connection with chapter 408, it has had over 35

years in which to do so. That it has not indicates that the past and present procedures followed by

NDOT and the Department of Administrative have legislative approval. Summa Corp. v. State

Gaming Control Bd., 98 Nev. 390, 392, 649 P.2d 1363, 1365 (1982); Sierra Pac. Power Co. v.

Department of Taxation, 96 Nev. 295, 298, 607 P.2d 1147, 1149 (1980) (legislative acquiescence

to agency’s reasonable interpretation of statute indicates interpretation is consistent with legislative

intent).

CONCLUSION

The legislature has provided NDOT with broad authority throughout chapter 408. It has

further provided in NRS 284.173(7)(a) that NDOT need not file any contracts of construction or

reconstruction of highways to the Board of Examiners for approval. The definition of highways in

chapter 408 is very broad and includes any services and works incidental to highway construction

and maintenance which is NDOT’s primary mission. Since 1961, when NRS 284.173(7)(a) was

added to the Nevada Revised Statutes, NDOT has not submitted its independent services contracts

to the Board of Examiners for approval. In 1983, NDOT requested and received an opinion as to

the legality of this practice. It was the conclusion of that opinion that NDOT’s practice was

supported by legal authority. Based on that opinion, NDOT has continued to follow the procedure

for approximately 13 additional years. The Department of Administration has acknowledged the

practice of NDOT. Requiring NDOT to submit its independent contracts to the Board of

Examiners for another round of review and approval is bureaucratic redundancy. The fact that

NDOT and the Department of Administration has been following the existing procedure for so

long, and that the legislature has not amended NRS 284.173(7)(a), indicates that the legislature has

acquiesced to this interpretation of the statute and, thus, NDOT’s procedure with respect to

independent contracts. Based on the above, one can reasonably conclude that NDOT has authority

to contract for the services of most independent contractors as set forth in chapter 408 without

submitting the contracts to the State Board of Examiners for approval.

FRANKIE SUE DEL PAPA

Attorney General

By: BRIAN HUTCHINS

Chief Attorney General

__________

OPINION NO. 96-32SALES TAX; EXEMPTIONS; LOCAL GOVERNMENT: NRS 372.320(4)

provides an exemption from the sales tax for sales of tangible personal property to a county.

Therefore, in order for the exemption to apply, the county must be the entity that actually

purchases the tangible personal property. The purchase of tangible personal property by private

property management companies that contract with Clark County to manage and maintain its

commercial properties is subject to sales tax unless: (1) the management contract between the

companies and the county specifically designate the companies as purchasing agents with the

authority to bind the county contractually for the purchase of tangible personal property necessary

to carry out the companies contractual obligations under the contract; (2) the fact of the companies

The exceptions might be for independent services related to airports, railways and transit which may not be incidental to highway construction

and maintenance. See footnote 9.

agency status on behalf of the county is disclosed to the vendors on the purchase orders, invoices

or purchase contracts; and (3) the county is directly liable to the vendor for the purchase price.

Carson City, November 6, 1996

Mr. E. Lee Thomson, Deputy District Attorney, Clark County District Attorney's Office, Post

Office Box 552215, Las Vegas, Nevada 89155-2215

Dear Mr. Thomson:

Clark County, through its Department of Aviation, owns certain commercial and residential

rental properties. It has contracted with several property management companies to manage and

maintain these properties. The county's contract with Ribeiro Corporation is an example. Ribeiro

Corporation, in the course of its activities to manage and maintain these rental properties, is

required to purchase tangible personal property. The county's contract with Ribeiro Corporation

and other documents have been submitted to support the county's position that Ribeiro

Corporation's purchases under its Commercial Property Management Services Agreement should

be exempt from sales tax under NRS 372.325(4). In this regard, you have asked this office for an

opinion to the following question.

QUESTION

Does NRS ch. 372 require collection of sales tax on purchases made by a county's real estate

management agent on behalf of and in the name of the county?

ANALYSIS

It is presumed that sales tax is owed on the retail sale of tangible personal property in this state.

NRS 372.155. Thus, unless some exemption or exception applies, sales tax is owed on the

purchase of tangible personal property in this state. Campbell v. State, Dep't of Taxation, 109 Nev.

512, 516, 853 P.2d 717, 719 (1993). Tax exemptions are strictly construed in favor of finding

taxability, and any reasonable doubt about whether an exemption applies must be construed against

the taxpayer. Sierra Pac. Power Co. v. Dep't of Taxation, 96 Nev. 295, 297, 607 P.2d 1147, 1148

(1980).

The retail sale of tangible personal property to a county is exempt from sales tax pursuant to

NRS 372.325(4). However, NRS 372.340 states:

The taxes imposed under this chapter apply to the sale of tangible personal property to and

the storage, use or other consumption in this state of tangible personal property by a

contractor for a governmental, religious or charitable entity which is otherwise exempted

from the tax unless the contractor is a constituent part of that entity.

It is evident that a private for profit property management company, such as Ribeiro

Corporation, hired by the county to manage and maintain the county's commercial properties, is

not a constituent part of the county government. However, paraphrasing Scotsman Mfg. Co. v.

State, Dep't of Taxation, 107 Nev. 127, 134 n.4, 808 P.2d 517, 521 (1991), NRS 372.340 does not

apply if, upon analysis of the purchase transaction, the county is found to be the actual purchaser of

the tangible personal property as opposed to the contractor.

Accordingly, for purposes of our

The Scotsman case is not applicable to the question presented by the county. The “legal incidence” test described by the Nevada Supreme Court

in Scotsman was applied in a case involving a federal contractor acting under a contract with the federal government. In Kern-Limerick, Inc. v.

Scurlock, 347 U.S. 110 (1954) the “legal incidence” test was developed and applied to resolve the issue whether state sales tax could constitutionally

be applied to purchases of tangible personal property by government contractors which would become federal government property. The Scotsman

court concluded that the legal incidence of the Nevada sales tax under federal law fell on the federal government under the circumstances in that case.

analysis, it is necessary to examine the specifics of the contractual relationship between Ribeiro

Corporation and the county.

The contract itself is described as a “Commercial Property Management Services Agreement.”

According to the terms of the agreement the county is seeking to have Ribeiro Corporation perform

property management services for the county's commercial properties. Ribeiro Corporation's

specific duties are set out in Exhibit A to the agreement, and are divided into four sections; namely,

Management, Collections, Maintenance, and Landscape Maintenance. Among the duties listed

under the Management section of Exhibit A are:

2. Employ, supervise, discharge and pay on behalf of and for County all servants,

employees or contractors necessary to be employed in the management and operation of

the Property;

3. Purchase on behalf of and in the name of County, all materials, supplies, uniforms,

laundry services, exterminating and other services necessary for the maintenance or

operation of the Property;

. . . .

5. Make, with the written permission of County's Designated Representative, except as

otherwise provided herein-and at County's expense, all repairs, decorations, revisions,

alterations and improvements to the Property as are necessary for the proper maintenance

thereof. . . .

6. Maintain and operate, at the expense of the County, all common areas and facilities in

the Property;

Under the duties described in the Landscape Maintenance section of Exhibit A is Ribeiro

Corporation's obligation to “purchase and maintain all equipment, tools, appliances, materials,

supplies, and uniforms necessary or appropriate for the ordinary landscape maintenance of the

Property.” Replacement of trees, fountain repairs, replacement and repairing sprinkler heads, valve

lines or major lines are to be performed by Ribeiro at the county's expense.

Terms of compensation and payment are set forth in Article IV of the agreement. Article IV of

the agreement also describes the financial relationship between Ribeiro and the county. Ribeiro is

required to establish a bank account, termed a “Property Management Account,” in which all

money received by Ribeiro from the tenants is deposited and all expenses incurred by Ribeiro,

approved by the county, are reimbursed from that account. Additionally, Ribeiro's compensation

for performing services under the agreement is withdrawn from this account. Each month, Ribeiro

disburses the money in the account to the county minus reimbursement and payment for services.

Article V of the agreement requires Ribeiro to obtain liability insurance coverage for itself and the

county.

Based on the contract and the bank accounts records submitted, Ribeiro was the actual entity

which established the bank accounts and signed the signature cards. There is no evidence that

county employees or officials have signatory power to withdraw funds from the accounts. Checks

drawn on the accounts are Ribeiro's corporate checks that also reference the specific group of Clark

County properties to which the account relates. Ribeiro is listed by the vendors as the purchaser of

various items of tangible personal property and sales tax has been charged. Although the rental

agreements are between the county as lessor and a business as tenant, the rent checks are made

payable to Ribeiro Corporation and deposited into these bank accounts.

However, the determination of where the legal incidence of the sales tax falls may differ under state law. See, e.g., Hibernia Bank v. State Bd. of

Equalization, 212 Cal. Rptr. 556, 562 (Cal. Ct. App. 1985) (the court held that absent a federal law issue, state courts have final authority to interpret

state laws, such as where the legal incidence of the state sales tax lies and, under California law, the legal incidence of the sales tax falls on the retailer,

not the purchaser). The Nevada Supreme Court has never determined where the legal incidence of the Nevada sales tax falls under our state law.

However, for purposes of this opinion it is not necessary to make this determination.

The issue to be resolved is whether the county's contractual authorization to Ribeiro to make

certain purchases of tangible personal property “on behalf of and in the name of the county” makes

the county the purchaser of the property for sales tax purposes. Under this contractual

authorization, Ribeiro purchases certain items of tangible personal property and pays for the

property by a draw from the separate bank accounts. Courts faced with this issue often analyze

whether the contractor has purchased the property from the vendor for resale to the government.

This analysis assumes that the contractor was the initial purchaser. Under this analysis, the courts

look to whether the purchasing contractor makes any use of the property purchased other than to

simply transfer title or possession to the government. Where the property is purchased for the

contractor's use to carry out its contractual obligations to the government, the courts tend to

conclude that the sale to the contractor is subject to sales or use tax since the sale is to the

contractor and no resale to the government occurred even though ownership of the property

transferred to the government. See Regional Transportation Dist. v. Martin Marietta, 805 P.2d

1102, 1105 (Colo. 1991); American Totalisator Co., Inc. v. Dubno, 555 A.2d 414, 417 (Conn.

1989).

Other courts focus on determining whether, under the facts presented, the contractor is acting

as an agent for the government in making the purchase. For example, in Weed v. City of Pueblo,

591 P.2d 80, 82 (Colo. 1979), the court noted in order to determine whether a contractor's

purchases are exempt as a sale to an exempt entity, such as the city, it must be established that the

contractor acted as the agent of the exempt entity when the purchase was made. One of the

essential characteristics of such an agency is the agent's power to bind the principal contractually to

a third party. Id. at 82; see also Bill Roberts, Inc. v. McNamara, 539 So.2d 1226, 1229 (La. 1989),

wherein the court held proof of an agency relationship was lacking simply because the bid forms

and purchase orders the contractor received from the government agency stated sales tax should

not be included in the bid or that the government was exempt from paying sales tax. In Brown

Plumbing & Heating v. Tax Comm'n, 848 P.2d 181 (Utah 1993), aff'd, 861 P.2d 435 (Utah 1993),

the court held where the construction contract provided that the school district could directly

purchase some of the materials to be used by the contractor in completing construction of a school,

the contract did not make the school district a purchasing agent for the contractor and subject the

contractor to use tax liability for those materials. In a similar case, the Utah Supreme Court held

that use tax could not be imposed on a contractor on materials purchased by an exempt entity for

use by the contractor in completing a construction contract for the exempt entity absent proof of

the exempt entity's purchase of materials as agent for the contractor. Thorup Bros. Constr. Co. v.

Auditing Div., 860 P.2d 324 (Utah 1993). The court found that the exempt entity made the

purchases because it:

(1) directly issued the purchase orders for the materials, (2) issued checks for materials

directly to vendors, (3) took title in its own name, (4) inspected and stored the material on

its own property, (5) insured those materials, (6) assured that associated warranties ran to

itself, (7) exercised direct supervision, and (8) explicitly reserved in its contract [the right to

purchase the materials]. . . .

Thorup, 860 P.2d at 328.

While the property purchased under paragraph 3 of the Management Section of Exhibit A to

the agreement was to be purchased “on behalf of and in the name of” the county, Ribeiro has not

been purchasing this property in the name of the county, but in its own name and with funds it

controls. Ribeiro has not disclosed to the vendors that it is acting solely as an agent of the county

to purchase the tangible personal property, nor has evidence been submitted that Ribeiro is

authorized to contractually bind the county to pay the vendors. Although the property purchased

by Ribeiro under paragraph 3 of the agreement eventually becomes property belonging to the

county, under the current manner in which the management contract is being carried out, the

vendors are clearly looking to Ribeiro for payment not the county. Furthermore, the property

being purchased is used by Ribeiro to carry out its contractual obligations to the county to manage

and maintain the rental properties. All the county has agreed to do is to reimburse Ribeiro for its

purchases under the contract. Since Ribeiro is actually using the property to fulfill its management

contract, Ribeiro is not simply reselling the property to the county.

The property purchased under the Landscape Maintenance section of the contract does not

contain language indicating that the property is being purchased on behalf of or in the name of the

county. The contract language simply states Ribeiro will purchase and maintain that personal

property it needs to carry out ordinary landscape maintenance of the properties.

Upon review and analysis of the contract between Ribeiro and the county, we believe that

Ribeiro is acting as an independent contractor and as an agent of the county for certain purposes.

However, we do not find that Ribeiro is acting as a purchasing agent for the county under the

provisions of this contract such that its purchases of tangible personal property are exempt as

purchases by the county, an exempt agency. Case law suggests that unless the county is actually

listed as the purchaser on the purchase orders and invoices for the tangible personal property

purchased by the property management companies, and the management contract clearly

authorizes the property management companies to bind the county contractually in the purchase of

tangible personal property, sale of the tangible personal property to those companies is subject to

sales tax.

CONCLUSION

NRS 372.320(4) provides an exemption from the sales tax for sales of tangible personal

property to a county. Therefore, in order for the exemption to apply, the county must be the entity

that actually purchases the tangible personal property. The purchase of tangible personal property

by private property management companies that contract with Clark County to manage and

maintain its commercial properties is subject to sales tax unless: (1) the management contract

between the companies and the county specifically designate the companies as purchasing agents

with the authority to bind the county contractually for the purchase of tangible personal property

necessary to carry out the companies contractual obligations under the contract; (2) the fact of the

companies' agency status on behalf of the county is disclosed to the vendors on the purchase

orders, invoices or purchase contracts; and (3) the county is directly liable to the vendor for the

purchase price.

FRANKIE SUE DEL PAPA

Attorney General

By: JOHN S. BARTLETT

Senior Deputy Attorney General

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OPINION NO. 96-33ETHICS; FINANCIAL DISCLOSURE: Las Vegas's city manager is a

"public officer" under NRS 281.4365 and must, therefore, file a financial disclosure statement

according to NRS 281.561. Other appointive officers of Las Vegas, including deputies,

department heads, and directors are not "public officers" under NRS 281.4365 and are not required

to file financial disclosure statements according to NRS 281.561.

Carson City, November 8, 1996

Mr. Larry G. Bettis, Deputy City Attorney, Las Vegas City Attorney's Office, 400 East Stewart,

9th Floor, City Hall, Las Vegas, Nevada 89101

Dear Mr. Bettis:

You have asked whether certain employees of the city of Las Vegas are "public officers" under

NRS 281.4365 so that they would be required to file financial disclosure statements as required by

NRS 281.561. The brief answer to your question is that the city manager is a "public officer" who

is required to file a financial disclosure statement, but the employees appointed by the city manager

are not "public officers" and thus do not need to file financial disclosure statements. Our analysis

follows.

QUESTION

Are Las Vegas's city manager and department heads and staff directors "public officers" as

defined in NRS 281.4365 who would be required to file financial disclosure statements pursuant to

NRS 281.561?

ANALYSIS

In Op. Nev. Att'y Gen. No. 193 (September 3, 1975) (AGO 193) and Op. Nev. Att'y Gen. No.

96-15 (May 28, 1996) (AGO 96-15), this office opined the definition of "public officer" under

NRS 281.005 and an earlier version of the Nevada Ethics in Government Law. As you are aware,

in AGO 96-15 we concluded that department heads and staff directors employed by Clark County

were not "public officers" who were required to file financial disclosure statements. Because of

the differences between the Clark County ordinances and the Las Vegas ordinances, our analysis is

slightly different in this matter than it was in AGO 96-15.

Las Vegas Code § 3.030 (1991) provides that the city manager is "the chief administrative

officer of the city" and that he or she is "responsible to the city council for the efficient and proper

administration of all the affairs of the city." Thereafter are nine affirmative duties or obligations

placed upon the city manager, including supervision of all departments and divisions of city

government (Las Vegas Code § 3.030(2)), preparation of the city's annual budget (Las Vegas Code

§ 3.030(4)), enforcement of all general laws and city ordinances (Las Vegas Code § 3.030(5)), and

execution, monitoring, and enforcement of all city contracts (Las Vegas Code §§ 3.030(6) and (7)).

The city manager is a public officer because: (1) his position is "established by . . . ordinance

of a political subdivision of the state, and (2) his position "involves the continuous exercise of a

public power, trust or duty." NRS 281.4365. Las Vegas Code § 3.030 (1991) satisfies both parts

of the "public officer" test, since it simultaneously creates the position and defines the broad

authority granted to the position. As we stated in our conclusion in AGO 193:

2. A person appointed to a governmental position, whether on a state, district, county or

municipal level, is a public officer if his position is created by the Constitution, a statute or

ordinance and if, further, his duties are specifically set forth in the Constitution, statute or

ordinance and that person is made responsible, by the Constitution, statute or ordinance, for

the direction, supervision and control of his agency.

Regarding the other appointive officers employed by Las Vegas, they are not "public officers"

under NRS 281.4365 because although their positions are created by ordinance,

their duties are

See Las Vegas Code § 3.070 (1991) (appointment of director of financial management, director of public services, fire chief, city clerk,

and directors of other departments); Las Vegas Code § 3.080 (1991) (appointment of deputies and other employees); Las Vegas Code § 3.090 (1991)

(appointment of city clerk); Las Vegas Code § 3.130 (1991) (qualifications and duties of director of financial management); Las Vegas Code § 3.150

(1991) (duties of city treasurer); and Las Vegas Code § 3.170 (1991) (duties of city auditor).

only such as are delegated to them by higher authorities such as the city council, the city manager,

directors, or department heads. Because their duties are derived through higher officials, they are

not "public officers" under NRS 281.005. See AGO 193, at 57 and 61, quoted in AGO 96-15.

CONCLUSION

Las Vegas's city manager is a "public officer" under NRS 281.4365 and must, therefore, file a

financial disclosure statement according to NRS 281.561. Other appointive officers of Las Vegas,

including deputies, department heads, and directors, are not "public officers" under NRS 281.4365

and are not required to file financial disclosure statements according to NRS 281.561.

FRANKIE SUE DEL PAPA

Attorney General

By: LOUIS LING

Deputy Attorney General

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OPINION NO. 96-34CLERKS; RECORDS; EVIDENCE: Few records of the clerk's office are

held in a fiduciary or custodial capacity within the meaning of NRS 52.247. Under prescribed

circumstances, original vital records may be destroyed after they are electronically recorded or

rerecorded.

Carson City, November 12, 1996

Mr. Larry G. Bettis, Deputy City Attorney, City of Las Vegas, 400 East Stewart, 9th Floor, City

Hall, Las Vegas, Nevada 89101

Dear Mr. Bettis:

You have asked the Attorney General for an opinion concerning NRS 52.247 which was

amended in the 1995 Legislative Session by S.B. 90. Act of May 31, 1995, ch. 131, § 1, 1995 Nev.

Stat. 181. The statute now provides that unless a record is held in a fiduciary or custodial capacity,

it may be destroyed once copied by a governmental agency and that a copy reproduced from such

copied records is admissible into evidence to the same extent as an original, without regard to

whether original is available for inspection. You have sought our opinion because the legislature

did not give any guidance as to when a record is deemed to be held in a fiduciary or custodial

capacity.

QUESTION ONE

Once records are filed with the city clerk's office are they then considered to be held in a

fiduciary or custodial capacity?

ANALYSIS

NRS 52.247 provides:

1. Unless held in a fiduciary or custodial capacity or unless specifically prohibited by a

federal or state statute or regulation, by a local ordinance or by an order or judgement of

court of competent jurisdiction, if any business or governmental agency has, in the regular

course of business:

(a) Produced, kept or maintained any document, memorandum, writing, entry, print or

other record of any act transaction, occurrence or event relating to the conduct of its

business; and

(b) Has caused any of those records to be rerecorded, copied or reproduced by any

photographic, photostatic or other process which ensures an accurate reproduction or

creates a reliable medium for reproducing the original of any of those records, the business

or governmental agency may, in the regular course of its business, destroy any of those

records.

2. Any rerecorded, copied or reproduced record specified in subsection 1 is admissible to

the same extent as an original, regardless of whether the original is available for

inspection or has been lost or destroyed, if the rerecorded, copied or reproduced record is

sufficiently authenticated.

. . . .

4. If a governmental agency destroys any of its records an causes those records to be

rerecorded, copied or reproduced pursuant to subsection 1:

(a) The rerecorded, copied or reproduced record shall be deemed a public record for the

purposes of chapter 239 of NRS; . . . . [Emphasis added.]

This statute allows for admission into evidence any rerecorded record, any copied record, or

any reproduction of a record to the same extend as the original if the record was produced, kept, or

maintained in the regular course of business and was rerecorded, copied, or reproduced in a

reliable medium. If the business or governmental agency meets this criteria, it may destroy any of

those records in the regular course of business except records held in a fiduciary or custodial

capacity.

The statute enables records that are already held in nonpaper medium to be rerecorded into the

latest technology.

The statute does not define "fiduciary or custodial capacity." "One is said to act in a 'fiduciary

capacity' . . . when the . . . property which he handles, is not his own or for his own benefit, but for

the benefit of another person as to whom he stands in a relationship implying and necessitating

great confidence and trust on the one part and a high degree of good faith on the other part."

Black's Law Dictionary 563-64 (5th ed. 1979). We believe that custodial capacity as used in the

statute conveys the same element of holding a document which belongs to another as found in the

term "fiduciary capacity." While held in a fiduciary or custodial capacity, the document must be

safeguarded for the owner. These terms have very limited effect regarding documents in the

clerks' office. In some jurisdictions, the county recorder and the county clerk are the same office.

An example of a document held in fiduciary or custodial capacity can be found in the recorder's

office. The recorder's office receives a deed to real property for the purpose of recording it. While

the deed is in the possession of the recorder's office it is held in a fiduciary or custodial capacity.

Once it is recorded, it is returned to the owner. A city or county clerk's office receives a myriad of

documents including records of the court and minutes of the governing boards. The Las Vegas

City Clerk's Office is also the repository for certain records relating to voter registration. Only

those documents for which ownership resides in someone other than the city, county, or district

court are held in a fiduciary or custodial capacity.

CONCLUSION TO QUESTION ONE

The mere fact that a record is filed with the clerk's office does not make it a record held in a

fiduciary or custodial capacity. The city clerk's office holds documents in a "fiduciary or custodial

capacity" only if ownership of a document remains with another. Very few of the records in the

clerk's office would meet this standard.

QUESTION TWO

Is the city prohibited from destroying records categorized as "vital records" even after the

originals have been electronically recorded and a copy of the recorded documents can be

reproduced with the same clarity and content as the original record?

ANALYSIS

You have advised us that the state archivist sent a notice to all local governments dated June

12, 1996, regarding a new record retention schedule. You ask Question Two because the comment

associated with "vital records" in information from the state archivist describe vital records as

"[t]hese records are irreplaceable or copies do not have the same value as originals."

The answer to Question Two is no. The city may destroy the form of the vital records after

they have been recorded electronically because state law defines electronic recording as an

original and chapter 239 provides for destruction after electronic recordation.

Pursuant to NRS 52.205(1) "[a]n original of a writing or recording is the writing or recording

itself or any counterpart intended to have the same effect by a person executing or issuing it."

[Emphasis added.] NRS 52.205(3) states that "[i]f data are stored in a computer or similar device,

any printout or other output readable by sight, shown accurately to reflect the data, is an 'original.'"

NRS 239.051(1) states:

Unless destruction of a particular record without reproduction is authorized by a schedule

adopted pursuant to NRS 239.080 or 239.125, any custodian of public records in this state

may destroy documents, instruments, papers, books and any other records or writings in his

custody only if those records or writings have been placed on microphotographic film or if

the information they contain has been entered into a computer system which permits the

retrieval and reproduction of that information. A reproduction of that film or that

information shall be deemed to be the original. [Emphasis added.]

A "vital record" does not have to be kept in the particular form the governmental office of

record had kept it yesterday or keeps it today. As that record is rerecorded into a different form, it

is still an original vital record. A copy can be made of that original vital record, in whatever form

it resides, and be admissible to the same extent as the original pursuant to NRS 52.247.

We note that NRS 52.247 applies to private business as well as government. The need for such

a statute to allow for storage of records in space saving medium without jeopardy should the record

need to be used as evidence was more urgent for private records because chapter 239 and chapter

52 of NRS has addressed much of the evidentiary concern for governmental records.

There may be some confusion regarding "vital records" because of the comment that they are

records where the original has more value than a copy. A "vital record" should not be confused

with a record that has intrinsic historical value, such as the original Nevada Constitution.

CONCLUSION TO QUESTION TWO

The city may destroy records categorized as "vital records" after the records have been

recorded into another form and a copy can be produced with the same clarity and content as the

original, provided destruction is not otherwise prohibited. If a vital record has also been identified

as a record with intrinsic value (such as a historical document) it should not be destroyed even if it

has been microfilmed or placed in another format. Whether a document has intrinsic value is

determined by the office of the state archivist. See NRS 378.250.

FRANKIE SUE DEL PAPA

Attorney General

By: MELANIE MEEHAN-CROSSLEY

Deputy Attorney General

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OPINION NO. 96-35COURTS; PENALTIES: The penalty provisions of NRS 444.630 permit a

court to impose criminal penalties of fines and imprisonment in addition to community service by

which a person convicted of a misdemeanor may be sentenced.

Carson City, December 19, 1996

Mr. Bruce Nelson, Deputy City Attorney, Las Vegas City Attorney's Office, 400 East Stewart

Avenue, 4th Floor, City Hall, Las Vegas, Nevada 89101

Dear Mr. Nelson:

You have requested an opinion regarding the scope of penalty provisions of NRS 444.630,

with particular regard to the exclusive or inclusive nature of those provisions:

QUESTION

Do penalty provisions of NRS 444.630 preclude a court from imposing criminal penalties in

addition to community service by which a person convicted of a misdemeanor may be sentenced?

ANALYSIS

NRS 444.630 states every person who improperly or unlawfully disposes of garbage or sewage

is guilty of a misdemeanor. The pertinent section of this statute further provides, "if the convicted

person agrees, he shall be sentenced to perform 10 hours of work for the benefit of the community

under the conditions prescribed in NRS 176.087." NRS 444.630(2).

NRS 193.150(1) provides:

Every person convicted of a misdemeanor shall be punished by imprisonment in the

county jail for not more than 6 months, or by a fine of not more than $1,000, or by both

fine and imprisonment, unless the statute in force at the time of commission of such

misdemeanor prescribed a different penalty.

As is the case with NRS 444.630, NRS 193.150 contains a community service provision which

refers to NRS 176.087. NRS 193.150(2) provides:

In lieu of all or a part of the punishment which may be imposed pursuant to subsection 1,

the convicted person may be sentenced to perform a fixed period of work for the benefit of

the community pursuant to the conditions prescribed in NRS 176.087. [Emphasis added.]

NRS 176.087 itself states:

Except where the imposition of a specific criminal penalty is mandatory, a court may

order a convicted person to perform supervised work for the benefit of the community:

(a) In lieu of all or a part of any fine or imprisonment which may be imposed for the

commission of a misdemeanor . . . . [Emphasis added.]

Nowhere do the above-referenced statutes indicate that sentencing of a convicted person to

community service will operate to preclude imposition of other available penalties. To the

contrary, NRS 176.087 plainly states that performance of community service may be "in lieu of all

or a part of any fine or imprisonment which may be imposed for the commission of a

misdemeanor . . . ." NRS 176.087(1)(a) (emphasis added).

The "plain meaning rule" of statutory construction holds that the words in a statute should be

given their plain meaning unless this violates the spirit of the act. McKay v. Board of Supervisors,

102 Nev. 644, 648, 730 P.2d 438, 441 (1986) (citing Application of Filippini, 66 Nev. 17, 24, 202

P.2d 535, 538 (1949)). Further, where a statute is clear on its face, a court may not look beyond

the language of the statute in determining the intent of the legislature. McKay, 102 Nev. at 648

(citing Thompson v. District Court, 100 Nev. 352, 354, 683 P.2d 17, 19 (1984); Robert E. v.

Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959 (1983)).

The relevant language of the statutes at issue, "in lieu of all or a part of any fine or

imprisonment," ought to be construed according to the plain meaning of its terms; that a sentence

of community service can be imposed in connection with the other punishment available or instead

of the other punishment available, rather than as the exclusive penalty for a misdemeanor

conviction.

There is no indication whatsoever that community service is intended to be the sole or

exclusive punishment imposed under the statutes in question. The clear and unambiguous

language of the pertinent statutes thus renders a determination of the proportionality of fines,

imprisonment, and community service a discretionary matter which is for the sentencing judge to

decide.

Assuming, arguendo, that reasonably informed minds could understand the statute(s) in

question in two or more senses, the statute(s) could be considered ambiguous. McKay, 102 Nev. at

649 (citing Robert E., 99 Nev. at 445). Ambiguous statutes can be construed "in line with what

reason and public policy would indicate the legislature intended." Id. It is necessary to examine a

statute's legislative history in order to determine such intent.

The operative statute regarding community service, NRS 176.087, was amended with the

addition of the community service provisions on July 3, 1991. A perusal of the Judiciary

Committee discussion of the proposed amendment (S.B. 84) reveals that the intent of the

legislature in enacting those provisions was not to make community service an exclusive remedy

vis-a-vis fines and imprisonment. Rather, the legislators' major concern was to provide an

alternative to imprisonment in an effort to reduce overcrowding of confinement facilities. Minutes

of February 11, 1991, at 191; February 26, 1991, at 153; March 14, 1991, at 864 hearings on S.B.

84 before the Senate Committee on Judiciary.

Additionally, proponents of the amendment expressed an intent that imposition of community

service be in addition to issuance of a monetary fine. The legislators reasoned that imposition and

payment of a fine has little or no impact on the person who has committed a crime, while a

sentence of community service constitutes actual punishment. Id.

The legislative history of the community service provisions of NRS 176.087 provides

compelling evidence that those provisions were not intended to supersede, but rather to augment

the fines and imprisonment authorized under that statute, as well as under those to which it refers.

CONCLUSION

Penalty provisions of NRS 444.630 (and, by reference, NRS 193.150 and NRS 176.087) do not

prescribe or imply that fines, imprisonment, or community service are independent penalties, or

that only one type of these punishments may be imposed by a sentencing judge. To the contrary,

the clear language of the statutes, as well as the underlying legislative intent, indicates that the

criminal penalties of fines and imprisonment may be imposed in addition to community service by

which a person convicted of a misdemeanor may be sentenced.

FRANKIE SUE DEL PAPA

Attorney General

By: GRENVILLE T. PRIDHAM

Deputy Attorney General

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