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Clinton-ing On the Comstock: Private Phone Use for Public Business

Hilary Clinton is not the first (or the last) politician who has used their private communication lines for public business.  In Comstock Residents Association v. Lyon County Board of Commissioners, the Nevada Supreme Court recently ruled that the Lyon County Commissioners must provide phone messages and emails from private cell phones and email accounts if the communications fall within the definition of a “public record.”  134 Nev., Adv. Op. 19, ___ P.3d ___ (March 29, 2018).

PUBLIC RECORD REQUESTS

Under Nevada’s Public Records Act, all “public records” of a government entity must be open for public inspection upon request, unless the record is classified as “confidential” under the law.  NRS 239.010(1).   The Comstock Residents Association made a public records request of the Lyon County Board of Commissioners after the board approved a zoning change to allow industrial development.  Lyon County and the Commissioners provided phone records, emails and other documents that were created on all public county devices but refused to turn over some records that were on the Commissioners’ private phones and emails.

The question the Nevada Supreme Court had to resolve was whether communications on private devices and accounts fell within the definition of “public records” under Nevada’s Public Records Act.  It’s answer:  “Maybe?”

ITS NOT WHERE THE RECORDS ARE, BUT WHAT THEY CONTAIN THAT MAKES THEM PUBLIC

Under Nevada’s Public Records Act, public records must “be open at all time during office hours to inspection by any person.”  NRS 239.010(1).  The County Commissioners argued that this language restricts Nevada’s Public Records Act to only those records that are maintained in government offices or on government devices.  The Nevada Supreme Court disagreed.

Other places in Nevada’s Public Records Act contemplate that the records might be in control of private entities.  See, e.g., NRS 239.0107(1) (allowing five days to compile public records from a private entity).  And, the Nevada Public Records Act specifically requires public entities who provide public services to allow members of the public to inspect records in their possession.  NRS 239.001(4).

Instead, the Nevada Supreme Court held that the appropriate question is not where the records are kept, but what they contain.  If the records concern government activity subject to a public records request, the records must be disclosed.

The Board tried to argue that records kept on personal devices and email accounts are not within county control to produce.  However, considering the fact that the commissioners themselves created these records…well, the Nevada Supreme Court rejected that ridiculous (albeit creative) argument.

NEVADA IS NOT OFF ITS ROCKER

The Nevada Supreme Court decision follows recent decisions on similar issues from our sister states.

In City of San Jose v. Superior Court, the California Supreme Court held that emails generated on the personal accounts and cell phones of city employees that discuss city business fall within California’s Public Records Act.  389 P.3d 848 (2017).

In Lunney v. State, the Arizona Court of Appeals held that public employee’s private cell phone records may fall within Arizona’s Public Records Law if the private phone was used to conduct public business.  779 Ariz., Adv. Rep. 6, ___ P.3d ____(Ariz. Ct. App. Dec. 7, 2017).

And, in West v. Vermillion, the Washington Court of Appeals held that a city council member’s private email account contained emails that must be disclosed under Washington’s Public Records Act.  384 P.3d 634 (2016).  Recently, in West v. Puyallup, the Washington Court of Appeals also held that posts on social media may constitute public records.  410 P.3d 1197 (2018).

Don’t be too alarmed, however.  Public records requests don’t cover the more, um, embarrassing reasons people use their private accounts.  In Pennsylvania Office of Atty Gen v. Bumsted, the Pennsylvania Commonwealth Court confirmed that pornography sent on a personal email account of a public official was not a “public record” because it did not involve public business.  134 A.3d 1204 (2016).

The take-away is that public business is public business, even when it is conducted on private devices and accounts.  If you don’t want your constituents to know about your Candy Crush addiction or Amazon order history, keep your personal and professional devices separate.

Zenor v. NDOT: Zero Attorney Fees for Zenor

In Zenor v. NDOT, the Nevada Supreme Court ruled that attorney fees are not recoverable under NRS 18.010(2)(b) in petitions for judicial review.  134 Nev., Adv. Op. 14, 412 P.3d 28 (2018).  Here’s what you need to know to understand everything I just said.

How Lawyers Get Paid

There are many ways that lawyers can get paid by their own clients, but only a few ways in which lawyers can get their fees paid by the opposing party.   A district court can order a party to pay their opponent’s attorney fees only if (1) there is a contract between the parties which awards attorney fees to the prevailing party, (2) there is a rule authorizing it, or (3) a statute awards attorney fees.  State, Dep’t Human Resources v. Fowler, 109 Nev. 782, 784, 858 P.2d 375, 376 (1993).

NRS 18.010(2)(b) is the most common statute that attorneys move under to get fee awards.  Under NRS 18.010(2)(b), an attorney can seek their fees if the matter was filed or defended in “bad faith” by the opposing party.  NRS 18.010(2)(b) applies to most litigation.  The question that the Nevada Supreme Court recently determined in Zenor was whether NRS 18.010(2)(b) applies to petitions for judicial review of agency determinations.

Petitions for Judicial Review

You have probably encountered an administrative agency.  Administrative agencies consist of workers compensation boards, licensing boards, taxing authorities, etc. They are not courts, but they still have the power to determine your rights within their respective area of authority.

Final decisions of administrative agencies are reviewable by the district courts.  NRS 233B.130(1).   Aggrieved parties must file a petition for judicial review with the district court, and the district court will review the record to determine if the agency was incorrect.  NRS 233B.130(1); NRS 233B.135.

What happens when part of your petition for judicial review includes the allegation that the opposing party initiated administrative agency proceedings in bad faith? Can you get your attorney fees?  According to the Nevada Supreme Court, the answer is no.

Zenor

In Zenor, Zenor filed a motion for attorney fees under NRS 18.010(2)(b) because he believed the Nevada Department of Transportation (“NDOT”) unreasonably filed a petition for judicial review.  NDOT began an administrative proceeding against Zenor for an injury which Zenor contended did not prevent him from performing his job.  NDOT ultimately was able to terminate Zenor for the “medical” reason.  Zenor appealed, and the administrative hearing officer reversed NDOT’s termination.  NDOT then filed a petition for judicial review, and lost.  Zenor wanted his attorney fees, but the district court refused to award him them under NRS 18.010(2)(b) because it did not believe that attorney fees are recoverable under that statute in administrative agency review proceedings.  412 P.3d at 29.

The Nevada Supreme Court held that the district court was correct.  NRS 233B.130(6) states that it is the “exclusive means of judicial review, or judicial action concerning, a final decision” in an administrative agency case.  NRS Chapter 233B does not contain a statute authorizing the award of attorney fees.   Zenor, 412 P.3d at 29-30.

Statutes are created by the Legislature, not the courts.  The Nevada Supreme Court has consistently refused to encroach on the Legislature’s role by adding things to statutes that the Legislature has omitted.  If the Legislature wanted attorney fees to be awarded, it would have either included a provision for that.   Instead, it stated that the chapter was the “exclusive” means by which petitions for review can be conducted.  NRS 18.010(2)(b) is not within Chapter 233B.  Therefore, attorney fees are not available under NRS 18.010(2)(b) for petitions for judicial review filed under NRS 233B.130.  Zenor, 412 P.3d at 30.