Attorney General George Chanos told district court Tuesday the Tax Commission was wrong to close its hearing in a Southern California Edison tax commission case, even though deputies from his office had allowed them to hold such cases behind closed doors for a decade.
He said without a clear legislative exemption such as that provided the school board when considering a disciplinary case, Nevada's open-meeting law requires all actions and deliberations by public bodies be done in public meetings. He said there is no such exemption for the Tax Commission.
He agreed the commission can receive private, proprietary data from businesses appealing a tax bill. But, he said, the law is clear that the commission must come back into open session to deliberate and act.
But Thomas "Spike" Wilson, representing the commission, said the commission was entitled to rely on the advice of their deputy attorneys general, who had routinely allowed closed meetings not only to hear evidence but to deliberate and vote in such cases.
As a practical matter, he said, it would be impossible to deliberate without disclosing the confidential evidence.
"If discussions of that confidential evidence are public, the evidence is disclosed," Wilson said.
He argued the definition of a closed hearing includes not just receiving evidence but the deliberation and vote.
Chanos replied that a review of the Southern California Edison closed hearing shows there was no confidential information discussed and no reason that hearing could not have been held in public.
And, he said, despite a history of often conflicting advice from different deputies, "before action on this matter, the commission was specifically advised by their deputy their deliberations and action would have to be in public."
He said their decision to close the hearing ignored not only that advice but a published opinion on the subject issued by the attorney general's office in 1979.
"How our office may have misinterpreted that somewhere along the line is not the point," he said.
Wilson agreed the advice has not been consistent: "There's something dysfunctional about the history and pattern of advice given the commission during this period."
But, he said, the statute permits a hearing to be closed at the request of the people or businesses appealing their tax bill.
And Norm Azevedo representing the utility argued those types of hearings have been closed for a decade and his client is entitled to rely on past practice.
"In good faith we relied on past practice, relied on the deputy attorney general, and now the attorney general is asking you to void the decision," he said.
He also pointed out the commission did ask for an opinion on what information should be released after a closed hearing is completed and a decision made. He said it took the attorney general's office 13 months to reply, and the opinion didn't answer their question but instead directed that all such deliberations and votes be done in public.
Chanos said that was the appropriate answer because, legally, they don't have the right to close deliberations in a case.
But when he said the deputies who allowed close meetings over the years didn't know what they were doing, Judge Mike Griffin objected.
"You're calling them fools," he said.
"I'm calling them wrong," Chanos said.
"I find it offensive for you to castigate all your former deputies," said Griffin.
Chanos said that doesn't change the fact the meetings should be open and those deputies were wrong.
Griffin took the case under submission.
• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.