Acklin v. McCarthy
Acklin v. McCarthy
Opinion of the Court
OPINION
By the Court,
This is an appeal from a judgment dismissing with prejudice, NRCP 41(b), plaintiffs-appellants’ complaint for declaratory and injunctive relief. We are asked to determine whether respondent McCarthy, Sheriff of the Las Vegas Metropolitan Police Department, was required to select appointive officers from those officers holding the highest civil service ranks in the
The Nevada Legislature, in 1973, provided for the consolidation of city and county law enforcement agencies in counties with a population of 200,000 or more. 1973 Nev. Stats, ch. 568, §§ 1-37, at 915-22 (codified in NRS 280.010-.360). Each county with the stated population was to comply with the merger provisions on July 1, 1973. Id. § 11, at 916. The chief law enforcement officer of the consolidated department would be the county sheriff and the chief of police of the largest city would be second in command. NRS 280.290 (1), (2). Clark County, having a population greater than 200,000, abided by the legislative mandate and merged its county sheriff department with the police department of Las Vegas, the largest city in the county.
In November of 1978, respondent McCarthy was elected Sheriff of Clark County and assumed office on January 1, 1979. On December 4, 1978, Sheriff-elect McCarthy announced the promotions of several police officers to appointive positions which would take effect in 1979. This action included the promotion of a lieutenant to the position of assistant sheriff and the appointment of two sergeants and a detective to the position of commander. There were nine captains and eight lieutenants at a higher civil service level at the time. Appellants contend that appointive officer positions may be filled only with selections from the highest civil service ranks within the department and that, because respondent McCarthy failed to comply with this requirement, the appointments must be nullified.
Section 280.290 of our revised statutes is the provision with which we are primarily concerned.
Appellants maintain that subsection 5 requires that the appointive positions listed in subsections 2 and 3
Appellants contend that because of the legislative uncertainty, it was necessary for the trial court to review the legislative history in order to resolve the controversy regarding the enactments. We disagree. Examination of legislative history and extrinsic aids, see Washoe County v. Baker, 75 Nev. 335, 338, 340 P.2d 1003, 1004 (1959), is not necessary in the instant case as we have determined a clear legislative intent from the language of the entire act. In any event, the evidence proffered by appellants is not of the type which is considered in determining legislative intent.
NRS 280.290 provides:
Department chief, other executive officers.
1. The chief law enforcement officer, and except as limited or otherwise provided in this chapter the chief administrative officer in a department is the sheriff of the county in which a department is located. Except as otherwise specifically provided or limited, such sheriff shall continue to perform all of his duties and retain all of his powers as sheriff of the county.
2. Upon merger, the chief of police of the largest participating city shall be second in command of the department and shall be designated as undersheriff of the department.
3. Upon merger, the chiefs of police of other participating cities, the assistant chiefs of police of other participating cities, the chief deputies or deputy chiefs, or both, and the undersheriff of the county are entitled to obtain employment with the department in positions which their leadership abilities warrant.
*522 4. Upon merger, all persons designated in subsections 2 and 3 shall retain an equivalent rank in the department at least until the expiration of the current term of office of the sheriff, except that such persons may be removed for cause. Each of the persons designated in subsections 2 and 3 shall hold and be entitled to return to the highest civil service rank if he is removed from his appointed position for reasons other than cause requiring termination.
5. The persons selected to fill any of the positions in subsections 2 and 3 shall be selected from the highest civil service rank in the department.
Within the new metropolitan police structure, there is a distinction between the appointive ranks and the civil service ranks. The civil service ranks include, from the lowest position up, patrolman, sergeant, lieutenant, and captain. The appointive positions include commanders, deputy chiefs, assistant sheriffs, and undersheriff.
This clause is indicative of the fact that the sheriff retained his power to appoint and dismiss. The limitation simply was that he could not summarily dismiss from the department officers who had had officer status within one of the merging departments.
See note 3 and accompanying text supra.
This evidence included the post-merger remarks of a police officer-member of a sub-committee, only remotely connected with the legislature and a legislator during a legislative hearing. The statements, even if relevant, were more similar to ambiguous individual opinions, see March v. United States, 506 F.2d 1036, 1314 n. 31 (D.C. Cir. 1974), than to clear statements by proponents at a legislative hearing. See Chicago & North Western Ry. v. United Transp. Union, 402 U.S. 570, 576 (1971). Additionally, the actions and remarks of
We are not persuaded by appellants’ argument that the legislature was concerned only with continuity and proven ability as shown by a civil service rank. The legislature was primarily concerned that all officers retain their positions in the new department for a reasonable period of time. The fact that an officer has a certain civil service rank is not, in and of itself, indicative of his ability to handle an appointive position or demonstrative of capabilities superior to someone within or without the department who may be appointed by the sheriff.
Dissenting Opinion
dissenting:
When Sheriff McCarthy selected several police officers for appointment to unclassified positions, and such officers were not of the rank of captain, his appointments violated Nevada law, specifically NRS 280.290(5), and 280.120(2). If there were any doubt concerning interpretation of the relevant statutes, plaintiffs offered abundant evidence to the Legislature’s intent. Moreover, reason militates in favor of the interpretation for which the plaintiffs contend.
The district court apparently felt appointments to unclassified positions need be made from the rank of captain, or above, only at the time of the consolidation. This reasoning is contrary to the literal statutory language of 280.290(5) and 280.120, which states, “The resulting department shall operate under the provisions of this chapter.” NRS 280.290(2), (3) and (5) reads as follows:
(2) Upon merger, the chief of police of the largest participating city shall be second in command of the department and shall be designated as undersheriff of the department.
(3) Upon merger, the chiefs of police of other participating cities, the assistant chiefs of police of other participating cities, the chief deputies or deputy chiefs, or both, and the undersheriff of the county are entitled to obtain*525 employment with the department in positions which their leadership abilities warrant.
(5) The persons selected to fill any of the positions in subsections 2 and 3 shall be selected from the highest civil service rank in the department.
In addition to contradicting this clear language, it seems to me that my brethren are attributing a rather surprising intent to our Legislature. In effect, the majority hold that our Legislature did not intend to require the sheriff to accord recognition to merit in the police department’s highest and most important positions, following formation of the unified department. As I see it, this means career officers may work the bulk of their professional lives, to achieve a captain’s rank on merit, only to have others appointed over them, without regard to merit. I am unwilling to attribute such a divisive and demoralizing scheme to our Legislature.
Reference
- Full Case Name
- THOMAS C. ACKLIN, Et Al., Appellants, v. JOHN McCARTHY, Et Al., Respondents
- Cited By
- 8 cases
- Status
- Published