Despite their objections to the Nevada Supreme Court's decision, the Nevada Tax Commission voted 6-1 Monday not to seek a rehearing of the ruling which voided their decision ordering a $36 million tax refund for Southern California Edison.
The court ruled unanimously in April that the refund ruling was void because the commission held the hearings behind closed doors in violation of the open meeting law.
Thomas "Spike" Wilson and James Giudici, the outside counsel hired to represent the commission against the Nevada Attorney General's office, recommended the commission ask for a rehearing, saying there are factual errors in the opinion they believe need to be resolved.
That ruling overturned a practice of more than 20 years by the commission of routinely locking out the public and press when considering taxpayer appeals. The law allowing some portions of those appeals to be closed is designed to protect confidential business and personal information belonging to those appealing their taxes.
"Frankly we were surprised and shocked by the court's decision," said Giudici. "We believe it is clearly erroneous on many facts."
"It is simply not true that this commission ever proceeded with the intention of violating the open meeting law as this opinion suggests," he said.
He said legislative intent was clear in 1983 that the commission was entitled to close meetings and deliberate behind closed doors to protect the confidentiality of businesses and individuals appealing a tax ruling against them.
"The court simply does not address the relationship between or any conflict between the open meeting law on one hand and the taxpayer's right to confidentiality," said Wilson.
They admitted, however, that since the ruling was unanimous, it's unlikely the high court would reconsider and change its ruling.
Given that, Commissioner George Kelesis made the motion not to pursue the issue any further.
"My opinion is we move on and pick this battle with another case and another set of facts instead of beating our head against the wall," he said.
He also pointed out that Southern California Edison could seek another hearing if it wants to.
While several members including Chairman Tom Sheets said they weren't happy with the ruling, only Commissioner Hank Vogler voted against dropping the fight.
"We made a decision that I think was the right decision or, at least, the majority decision is we're going to represent the taxpayers of the state of Nevada as citizens, their right to privacy," he said.
He said because the decision was done behind closed doors, "It made great press, like we had some other motive " and we didn't."
He said because of that and the amount of money involved " $36 million plus interest " "all this went completely out of proportion."
He said the message to taxpayers is that, "you will be punished if you have the nerve to step up before the Nevada Tax Commission and have an opinion different from the hearing officer."
Commissioner David Turner said he didn't care if the court changed its final opinion, that he'd just like to see what he sees as factual errors in the opinion fixed.
Kelesis told the other members the Supreme Court has made several rulings recently affirming its own commitment to open court proceedings.
"They scolded one of their own justices for sealing a case while she was on the district court bench so they've been consistent for quite a while on having the judicial forum accessible to the public and I think that includes administrative bodies as well."
Kelesis said most of the issues they deal with should be done in public and, if the Southern California Edison case is reheard by the commission, it should be public.
"If in fact the decision of the commission in closed hearings was correct, it's going to be correct in open hearings," he said.
Chris Campbell representing Southern California Edison told the commission no decision has been made whether the utility will seek rehearing. After the meeting, he refused comment on that issue and on whether the utility will again file for the tax refund.
Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.