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Opinion 97050

DATE: September 18, 1997

SUBJECT: Application of the Nebraska Public Meetings Statutes, Neb. Rev. Stat. §§ 84-1408 Through 84-1414 (1994, Cum. Supp. 1996), to an Appointment by the County Treasurer, County Clerk and County Attorney Under Neb. Rev. Stat. § 32-567 (Cum. Supp. 1996) to Fill a Vacancy on the County Board

REQUESTED BY: James S. Jansen

Douglas County Attorney


WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General




In your opinion request letter dated September 10, 1997, which

we received on September 12, 1997, you requested our opinion as to

certain matters involving the Nebraska Public Meetings Statutes,

Neb. Rev. Stat. §§ 84-1408 through 84-1414 (1994, Cum. Supp. 1996).

Specifically, you are concerned about the application of the Public

Meetings Statutes to the pending process whereby a vacancy on the

Douglas County Board will be filled by action of the Douglas County

Clerk, the Douglas County Treasurer, and yourself, as Douglas

County Attorney.




In our Op. Att'y Gen. No. 88024 (March 17, 1988), we stated

that we would issue formal opinions of the Attorney General to

County Attorneys in Nebraska only with respect to questions

involving "criminal matters" and "matters relating to the public

revenue." That policy was based upon our statutory authority and

the resources available to this office. We continue to adhere to

that policy.




In the present instance, the questions you raised regarding

the Public Meetings Statutes do not appear, on their face, to

involve either criminal matters or matters relating to the public

revenue. However, possible sanctions for violation of the Nebraska

Public Meetings Statutes include criminal prosecution along with

other types of enforcement actions. Consequently, we will offer

our opinion as to the two questions which you raised, since they do

involve criminal matters in a sense, and since we could be called

upon to enforce the public meetings laws with respect to the

appointment procedures at issue. Our conclusions stated below,

therefore, reflect our enforcement policy in connection with the

questions which you raised.




From the materials which you provided to us, we understand

that a vacancy has been created on the Douglas County Board of

Commissioners due to the resignation of one of its members. Neb.

Rev. Stat. § 32-567(3) pertains to filling such vacancies, and that

statute provides, as is pertinent:




Vacancies in office shall be filled as follows:




* * *




(3) In the membership of the county board, by the county

clerk, county attorney, and county treasurer,




Beyond that language in § 32-567(3), as you correctly noted, there

is no particular procedure set out in that statute for the

appointment process. Your questions under the Public Meetings

Statutes go to the application of public meeting requirements to

appointments under § 32-567(3).




You first ask, "[d]oes the group making the appointment under

§ 32-567(3) constitute a public body as defined by § 84-1409 and

therefore subject to the open meeting laws?" We believe the answer

to that question is "yes," for the reasons discussed below.




Section 84-1409(1) establishes the various types of

governmental entities which are subject to the Public Meetings

Statutes in Nebraska. Subsection (c) of § 84-1409(1), in turn,

defines a public body subject to those statutes, in part, as:




all independent boards, commissions, bureaus, committees,

councils, subunits, or any other bodies, now or hereafter

created by the Constitution of Nebraska, statute, or

otherwise pursuant to law,




In this case, the group making the appointment to fill the vacancy

on the Douglas County Board is authorized and required to do so

under the specific statutory authority of § 32-567(3).

Consequently, it appears to us that the group of county officials

involved is a "subunit" or "other body" created "by statute" or

"otherwise pursuant to law." As such, we believe that the group is

subject to the various requirements of the Public Meetings

Statutes.




Our conclusion regarding your initial question is supported by

several aspects of the public meeting laws. First of all, the very

breadth of the listing of entities subject to the Public Meetings

Statutes under § 84-1409(1) indicates that the Legislature intended

that the reach of those statutes should be broad. For example,

under § 84-1409(1)(g), the Public Meetings Statutes even apply to

"instrumentalities exercising essentially public functions."

Second, the Nebraska Supreme Court has indicated that the public

meetings laws should be broadly interpreted and liberally construed

to obtain the objective of openness in favor of the public. Rauert

v. School District I-R of Hall County, 251 Neb. 135, 555 N.W.2d 763

(1996); Grein v. Board of Education of the School District of

Fremont, 216 Neb. 158, 343 N.W.2d 718 (1984). Finally, § 84-1410,

the section of the Public Meetings Statutes which establishes

procedures for closed or executive sessions of public bodies,

specifically states that, "[n]othing in this section [pertaining to

closed sessions] shall permit a closed meeting for discussion of

the appointment or election of a new member to any public body."

It seems to us that the fact that the Legislature added that

admonishment in the closed session provision of the Public Meetings

Statutes necessarily indicates that the Legislature contemplated

that the appointment of new members to public bodies should be done

in conformance with the other requirements of those statutes.




We are also aware of the decision in Marks v. Judicial

Nominating Commission for Judge of the County Court of the 20th

Judicial District, 236 Neb. 429, 461 N.W.2d 551 (1990), in which

the Nebraska Supreme Court indicated that a judicial nominating

commission engaged in the nomination of persons for a judgeship in

Nebraska was not subject to the Public Meetings Statutes, in part,

because the selection of nominees for judicial vacancies does not

involve the formation of public policy. However, we believe that

the situation in Marks is different from the present circumstances

in that Marks involved a nomination for a judicial vacancy rather

than an actual appointment to an otherwise elected position on a

county board. Moreover, the major focus of the Marks opinion went

to the fact that there are specific statutes dealing with judicial

nominating commissions, and those statutes control over the more

general Public Meetings Statutes. In the present instance, as

noted above, there are no specific statutes which establish

procedures for the appointment process at issue and which would

control over the Public Meetings laws. Therefore, given the nature

of the office at issue and dearth of any statutory procedural

guidelines for the appointment process under consideration, it

seems to us that the Marks case is inapposite, and that the

important openness objectives of the Public Meetings Statutes

control.




Your second question goes to the use of a closed or executive

session in the appointment process. You ask, "[i]f the appointing

persons are subject to the provisions of § 84-1409, then are they

permitted to conduct a closed session for the evaluation of the

merits of the candidates?" We believe that the answer to that

question is "no," based upon the direct language of § 84-1410 which

states that "[n]othing in this section [pertaining to closed

sessions] shall permit a closed meeting for discussion of the

appointment or election of a new member to any public body."




We have also enclosed a copy of our Op. Att'y Gen. No. 94035

(May 11, 1994) for your additional information. In that opinion,

we indicated that discussions and deliberations by the State Board

of Education in connection with the selection of a Commissioner of

Education were subject to the requirements of the public meetings

statutes. In addition, that opinion concluded that interviews with

individual candidates for the Commissioner position were also

subject to the requirements of the public meetings statutes, if a

quorum of the Board was present for those interviews. However, in

the latter interview situation, a brief closed session under § 84-

1410 might be warranted for a candid discussion by the Board and

the candidate which might potentially elicit responses injurious to

the reputation of an individual.




Sincerely yours,

DON STENBERG

Attorney General




Dale A. Comer

Assistant Attorney General