dissenting:
The Attorney General filed, in her own name, charges against the Board of Regents, complaining that all of the members of the Board (“excluding Nancy Price”) were guilty of violating the *405open meeting law. The Attorney General’s complaint sought an injunction “prohibiting the Regents from repeating the violations of the law.”
The trial court properly dismissed the Attorney General’s charges, ruling that the Regents did not violate the law, as charged, because they did not conduct a “ ‘meeting’ as defined by NRS 241.015 [the Open Meeting Law].” The trial court further ruled that communications among various Regents “involved expression of personal opinion, regarding personal conflict between various Regents” and did not, objectionably, relate to any public matters over which the Board of Regents had jurisdiction. The trial court’s dismissal of the Attorney General’s complaint is legally sound and should have been quickly and unhesitatingly affirmed by this court.
Rather than affirm the trial court, as it should have, this court sides with the Attorney General and cancels out the trial court’s clearly-correct rulings, wrongly holding that the defendant Regents “violated the Open Meeting Law,” when, in fact and law, the Regents did nothing that even comes close to being a violation of the law. Not since this court ruled that there are 370 days in a year have we experienced judicial law-making that has such an appearance of blatant political influence.1 In this dissenting opinion I will discuss why the trial court’s dismissal of the Attorney General’s charges against the Regents should not have been tampered with and will suggest an explanation as to why the case might have been decided in the way that it was.
The Attorney General’s charges against the Regents arose entirely out of a memorandum sent out by Regent Eardley to his *406fellow Regents (other than Regent Price). Regent Eardley sent out the memorandum in question; the other “guilty” Regents did nothing more than receive it and then say “no” to the proposals put forth in the memorandum.
The stated purpose of the Eardley memorandum was to enlist “individual members” of the Board to respond to public statements being made by Regent Price and to express “their concern and opinion” about remarks that Regent Eardley saw as being slanderous, “unsubstantiated, incorrect and potentially damaging.” With his memorandum, Regent Eardley sent out a proposed “draft media advisory” which stated his vision of a response that should be made by the individual Regents to what was perceived as being slanderous public statements being made by Regent Price.
Regent Eardley suggested to his colleagues that “some response is needed” (to the Price slanders) and sought each Regent’s “support and endorsement” of his proposed draft media advisory. Regent Eardley made it very clear that he was only making suggestions in “draft” form and told each Regent that if she or he were “not comfortable with this course of action, please let me know at your earliest convenience,” emphasizing that his “draft” would “not be released” under the name of any Regent until individual “approval has been given.” As matters turned out, not one Regent approved of the draft in the form proposed by Regent Eardley.
It is not possible to conjure an official meeting of the University of Nevada Board of Regents out of the described series of individual and isolated negative responses to Regent Eardley’s proposed media advisory. As pointed out by the trial court, there were “no conference calls, no physical meetings, [arid] the Regents never reached a consensus about the proposed media advisory. Ultimately no action was taken.” At most, said the trial court, the Regents who received Regent Eardley’s memorandum were merely “exercising their First Amendment right to publicly deny Regent Price’s allegations.”
I suppose that it might be possible, in a situation entirely different from the one we have here, for members of a public board to subvert the open meeting law by secretly polling the membership and, thereby, vote secretly on an official decision to be made by the board; but there is nothing like this even remotely involved here. Here, the “guilty” Regents did nothing more than ignore the Eardley memorandum or decline to act in their individual capacities in the manner sought by Regent Eardley’s draft proposal. It should be clear to all that the defendant Regents did not participate in any way in an official meeting of the Board and that, therefore, none of the Regents (as declared in the majority *407opinion) “violate[d] the open meeting law.” For those who do not readily grasp my point, I have elaborated upon it in the margin.2
There is a troubling aspect of this case which, although not raised by the Regents, should not pass unnoticed. Justice Rose is the “swing vote” in this case. Justice Rose has recently authored a dissenting opinion in which he expressed his concern *408about “tainted votes” in cases in which decision-makers have conflicts of interest. In O’Brien v. State, 114 Nev. 71, 952 P.2d 952 (1998), Justice Rose condemned two decision-makers, who, he claimed, had “serious conflicts of interest when they voted for [the successful party].” Id. at 78, 952 P.2d at 957. Justice Rose went on to say in the O'Brien case that “[without [these] tainted votes, the result would have been in [the losing party’s] favor.” Id.. Taking Justice Rose at his word, I would suggest that the justice may have a serious conflict of interest in the present case and that, arguably, without his “tainted” vote it is likely that the Regents would not have been declared to be law breakers.
Justice Rose complained in the O’Brien case that one of the decision-makers had, in the past, accepted a campaign contribution of $10,000.003 from one of the parties to the dispute. Justices Rose expresses his belief that the contribution was so “disproportionate” as to create “an appearance of impropriety” that was “fundamentally unfair” to the parties. Id. at 79, 952 P.2d 957 (Rose, J., and Young, J., dissenting). The justice claims that the result reached by the decision-maker (the Board of Bar Governors) should be invalidated and a new vote taken in which “Board members with [such] conflicts of interest not participate in it.”
The Rose doctrine of “fairness,” “impropriety” and “obvious conflict of interest,” which he adopts in the O'Brien dissent, can be summarized in this way:
1. When a “contribution is very large or greatly disproportionate . . ., then an appearance of impropriety should be recognized.”
2. It is an “obvious” and “serious conflict of interest” for a recipient of such a contribution to cast a “tainted vote” for the person from whom he or she received the contribution.
3. Such conflict of interest creates “fundamental unfairness” in the decision-making process so as to require invalidation of the “tainted votes” and a new vote in which those “with conflicts of interest not participate.”
In O’Brien, Justice Rose “insistfs] that a judge be fair and *409impartial and not participate in a case where doing so would present the appearance of impropriety and thus a conflict of interest.” In the present case, I merely want to hold Justice Rose to his own standard. The apparent conflict of interest in this case arises much in the way that Justice Rose claims it arose in O’Brien, namely, by the receipt of a career-saving “contribution” from the Attorney General, who is an interested party in the present case. I do not see how it can be denied that Justice Rose is greatly indebted to the Attorney General, much more indebted than would be the case if, say, the Attorney General had contributed $10,000.00 to his political campaign. I will leave it to the reader to decide whether the following facts give rise to a “disproportionate contribution” by the Attorney General to Justice Rose.
In 1993, formal criminal charges, charging two “crimes against public justice” were sworn out against Justice Rose by Detective David F. Kallas of the Las Vegas Metropolitan Police Department. The charging affidavit requested that “a Warrant of Arrest/Summons be issued for suspect, Robert E. Rose, on charges of obstruction of criminal investigation, violation of NRS 199.520 and violation of NRS 199.540.” The Attorney General responded to the formal charges in writing declaring that NRS 228.175 “establishes criminal jurisdiction in the office of the Attorney General over offenses committed in the course and scope of a state official’s employment or arising out of circumstances related to that employment.” Although the Attorney General expressed some doubt as to whether Justice Rose was actually “acting in his capacity as a state official” at the time of the alleged criminal conduct, the Attorney General, nonetheless, decided to “review[] the entire case file.” The Attorney General decided not to prosecute; the requested warrant of arrest/ summons was never issued, and the prosecution ended at that point. As a result of Attorney General Del Papa’s decision, Justice Rose was never prosecuted.4
*410Today’s ruling is subject to being condemned as a political or pay-back decision involving a disqualifying “appearance of impropriety” for Justice Rose to remain in this case. Whatever might be behind the court’s ruling in favor of the Attorney General and against ten of eleven members of the Board of Regents, such a ruling is subject to criticism based on at least an appearance of “impropriety” as defined by Justice Rose himself in O’Brien.
It is a matter of deep concern to me that not only has the court declared that ten public officials have “violated the open meeting law,” it has set a precedent that threatens to terrorize public board members in the future in a way that will chill legitimate private communications among members of public boards.
I would offer the respectful suggestion that if Justice Rose refuses to disqualify himself from this case, it falls upon the Regents to attempt, on rehearing, to get him out of this case. They should do so not merely to protect their own names and to void this court’s declaration that they are law violators, but to protect other public board members from the kinds of indignities and injustice that they have suffered. It is certainly arguable that a totally impartial tribunal would probably affirm the judgment of the trial court and dismiss the Attorney General’s complaint.
I refer, of course, to the case of SNEA v. Lau, 110 Nev. 715, 877 P.2d 531 (1994), in which this court, by vote of a majority which includes Justices Young and Rose, created the 370-day year. Absent this court's establishment of a 370-day “political year." the present governor would not have been allowed to run for a third term. To overcome the constitutional impediment to a governor’s running for a third term, this court found it necessary to rule that in Nevada there were 370 days in a "political year." The court-created "political year” is different from "the ordinary and well-understood meaning of 365 day[s]" and "run[s] from and to a floating day within a month." Id. at 717, 718, 877 P.2d at 533. A "political" year (by adding five “floating” days), may have 370 days.
In order for the court to rule today that personal, unconnected, two-person telephone calls constituted an "official" meeting of the Board of Regents "as a public body," it had to make a leap comparable to its Innovative creation of floating days and political years. It might be argued that we have here flouting quorums (quorums comprised of five unconnected telephone calls by individual Regents to the chairman) and political meetings (floating quorums that do not meet with the approval of the Attorney General). I note, however, that the court does not employ either term, floating quorums or political meetings, to shore up the present opinion.
To be liable for violations of the Open Meeting Law. the Regents here must not only have participated in a "meeting." the meeting must have been an official meeting, that is to say a meeting in which "a quorum is present to deliberate toward a decision or to take action on any matter over which the public body has supervision, control, jurisdiction or advisory power." NRS 241.015(2) (my emphasis). Although it is quite clear that the various members of the Board did not conduct or attend a meeting of any kind, it is beyond dispute that they did not meet in order to "deliberate" or decide any matter over which the Board had "supervision, control, jurisdiction or advisory power." No official decision or action by the Board was ever mentioned or suggested in the Eardley draft, and the individual Regents who received the draft were certainly free to ignore the memorandum or disagree with it without suspecting that she or he would become subject to prosecution by the Attorney General. The trial court, of course, understood this rather basic aspect of the case when it summarily dismissed the Attorney General's complaint.
The mischief of today’s ruling can be clearly seen if we were to apply this ruling (namely, that a negative, individual response to another board member’s proposal to respond to slanders by another board member can constitute an illegal, official meeting of that board) to any one of the public boards that have three members. Two members of these boards make a quorum; thus, under today’s ruling virtually any communication between two members of such a board would result in a public meeting that required notice and the other formalities of the open meeting law. For example, if one member of a three-member board were to telephone another member and say. "Do you want to help me answer the slanderous statements that our fellow board member is making against us?,” the contacted member could not say "yes" or "no” without becoming subject to prosecution by the Attorney General. (As put in the majority opinion, when "a quorum [two] of the Board chose to take a position . . . yea or nay, via a non-public vote," those two members become law violators.)
I close this note in the assumption that no one takes seriously the Attorney General's contention that the various Regents’ use of University fax and telephone equipment turns these isolated communications into an official meeting of the Board of Regents. Those Board members who declined to give approval to the Eardley draft were entitled to usé University staff, faxes and telephones to address, individually, a problem that related not only to "unsubstantiated accusations of wrongdoing" against individual members of the Board but also, necessarily, related to "the integrity of the Board and its policy making role for Nevada's higher education system." Under the circumstances of this case, the chairman had every right to "utilize University resources": however, even if we were to think otherwise, the mere use of University resources by members of the Board of Regents does not a public meeting make, and, quite frankly, the argument that it does is of no significance.
Although it is of no real moment, I would note that the concurring opinion makes it clear that the "contribution" in question is, in fact, no more than $10,000.00. It may be true, as claimed by the concurring justice, that the donor's husband made a contribution and that a man named Waters made contributions; but the fact remains that Ms. FitzSimmons’ $10,000.00 contribution in a state-wide campaign does not appear to be “disproportionate” as claimed by Justice Rose, especially when it is contrasted to what some may see as a "contribution” to Justice Rose made by the Attorney General.
I do not suggest that the Attorney General’s decision not to prosecute the charges against Justice Rose was made in bad faith, nor do I suggest that Justice Rose was guilty of any criminal conduct. All I do say is that, given the outcome of the Attorney General's decision, it may present an appearance of impropriety for Justice Rose to remain in a case in which the Attorney General is a party. 1 have no objections to Justice Rose’s sitting in cases in which the Attorney General is counsel for the State, as she was. for example, in the Hogan case referred to in Justice Rose’s concurring opinion. I have not, as suggested by Justice Rose, ''forgotten” the Hogan case. My dissent in the present case is, as I have made clear in the text, based on the Attorney General’s being an interested party in this appeal as distinguished from her merely being one of the attorneys for a party, as she was in Hogan.