Gaming Control Board Chairman Dennis Neilander has asked the Nevada Attorney General's Office to resolve the dispute over Keith Munro's appointment to the board.
But the opinion is unlikely to arrive today, and with a board meeting set to convene at 9 a.m. in Las Vegas, he was forced to tell both Munro, who was named to the post by outgoing Gov. Kenny Guinn, and Randall Sayre, who was named by incoming Gov. Jim Gibbons, to sit out this meeting.
Although Neilander and Munro could not be reached, Sayre confirmed that decision.
"Out of an abundance of caution, Chairman Neilander is going to proceed with two board members," he said. "I respect that because the health of the institution needs to take precedence."
Sayre was, however, in Las Vegas for the meeting, briefing Neilander and member Mark Clayton on the agenda in his role as chief of investigations.
Nevada law makes the attorney general's word final on the subject. But until the issue of who is the third member of the board is resolved, having either man participate could legally cloud any votes they cast by the board on gaming applications.
That won't prevent the board from moving forward with today's agenda, however. State law anticipates a split vote so, if Neilander and the remaining member, Mark Clayton, split on an agenda item, that issue would simply go to the Gaming Commission with neither a positive or negative recommendation.
Guinn in November named Munro to the board effective midnight of the new year. Gibbons, however, had himself sworn in just 12 or so seconds after midnight, saying that voids Munro's appointment because he was governor when the appointment was to take effect. He appointed Sayre, chief of the control board's investigative division, citing his experience as an investigator.
A similar opinion request was made in 1979 challenging late-term appointments by outgoing Gov. Mike O'Callaghan. Attorney General Richard Bryan ruled in O'Callaghan's favor saying the appointments were valid because they took effect before Gov. Bob List was actually sworn in.
And O'Callaghan wasn't the first to make last-minute appointments. Outgoing Gov. Grant Sawyer continued making appointments when he left office until just before Paul Laxalt's swearing in Jan. 1 1967.
Gibbons apparently attempted to get around that problem by beginning to take his oath of office before the clock struck midnight. But he didn't complete the oath until 12 seconds into the new year and, according to several observers, 12 seconds after Munro became a board member.
Some have suggested Gibbons' midnight oath of office wasn't valid because it was begun before the start of the new year while Guinn was still officially governor. That would mean his oath at 10 a.m. in the Supreme Court chambers was when he officially became governor - 10 hours after Munro's appointment became official.
Gibbons, himself a lawyer, said he became governor with the new year and the 12 seconds doesn't change the fact he is entitled to name the new Gaming Control Board member.
• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.