Gov. Jim Gibbons' office Wednesday tried to cut a deal to resolve the battle over who is on Nevada's Gaming Control Board.
But the deal, which has Keith Munro resigning his contested appointment to take a job with the Nevada Attorney General's Office, stalled late in the day - apparently when those involved realized Attorney General Catherine Cortez Masto doesn't have the authority to create and fund a new, unclassified executive position.
That would require approval from the Board of Examiners and either the Legislature or its Interim Finance Committee.
Munro was appointed in November by outgoing Gov. Kenny Guinn, effective Jan. 1. The legal issue was created when Gibbons declared Munro's appointment void and named Gaming Control Board Investigative Chief Randy Sayre to the board that oversees Nevada's multibillion-dollar casino industry.
Gibbons said he doesn't believe Guinn had the power to make an appointment effective Jan. 1 because he was no longer governor when the appointment became effective since Gibbons was sworn in 12 seconds after midnight.
With two appointees for the same seat, board Chairman Dennis Neilander was forced to ask Cortez Masto to formally decide which appointment was valid.
At the request of Neilander, neither Munro nor Sayre participated in Wednesday's board meeting in Las Vegas to avoid potential legal challenges.
The deal would give Gibbons his way and put Sayre on the board. It would also let Cortez Masto avoid issuing a legal opinion, which most likely declares Gibbons wrong.
But the opinion may still be necessary because Munro's wasn't the only appointment Guinn made in November but effective Jan. 1. He did the same when he named Todd Russell Carson District Judge replacing Mike Griffin. Russell's oath of office was filed in December, so he became a judge at the stroke of midnight with the new year.
While no one has questioned Russell's appointment, Gibbons has said he might have to reappoint Russell to ensure his selection is legal.
That, however, doesn't answer whether the sentences imposed, orders signed and other official actions Russell has taken in the past two weeks could be challenged as invalid since it's unlikely a judicial appointment could be made retroactive.
The Sayre appointment was the second attempt by Gibbons to block Munro from taking a seat on the control board.
When Guinn made the appointment in December, members of Gibbons' staff asked Secretary of State Dean Heller whether he could prevent it by not signing the appointment commission.
Heller concluded he had no authority to stop a gubernatorial appointment.
Gibbons maintains his attempts to dump Munro were not political. He said Sayre's extensive investigative background makes him a better candidate for the job.
Gibbons also denied his taking the oath of office just after midnight - a first in Nevada - was designed to legally undermine Munro's appointment.
But he is using that as his argument that Guinn didn't have authority to make the appointment.
• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.