After a district court judge declared that the Fernley City Council’s March vote to expel Councilman Stan Lau was void because the council violated the state’s Open Meeting Law, Lau is now asking the judge to clarify whether he remains expelled from the council under a corrective action item approved by the council April 15.
Following a hearing on Aug. 11, Third Judicial District Court Judge Leon Aberasturi ruled that the City Council violated the Open Meeting Law when it expelled Lau on March 4 because the agenda item for the meeting did not expressly identify expulsion as a potential action.
The judge’s written order on that ruling was filed Oct. 15. However, attorneys representing the City of Fernley and Lau disagreed on whether that meant Lau remains expelled because the ruling did not address the action taken by the council on an agenda item at the April 15 meeting for corrective action regarding the Open Meeting Law.
City Attorney Aaron Mouritsen had previously told The Fernley Reporter that the judge did not address the April 15 agenda item because it was not included in any of the previous pleadings in the case and was not before the court for a ruling.
That agenda item did expressly list expulsion as a potential action. But in a motion filed Oct. 16, attorney Jeff Dickerson, representing Lau, argued that “the City assured the Court that the proposed corrective action would not affect Lau and would change the status quo only by permitting the Attorney General to decline prosecution.”
Lau’s motion asks the judge for clarification and enforcement of the prior orders, consideration of judicial estoppel and an order to show cause if the court determines that the city acted contrary to a sufficiently clear restraint. Judicial estoppel requires consideration of whether the same party took positions in judicial proceedings, successfully asserted the earlier position, advanced a totally inconsistent later position and did not take the earlier position through ignorance, fraud or mistake.
The motion also cites a statement released by the city on Oct. 16 saying: “Stan Lau remains expelled from the Fernley City Council. The City Council took corrective on the open meeting law language on April 15th. The Judge did not rule that the second corrective expulsion action was inappropriate. The issued order from the Third Judicial District affirms the City Council's ability to expel its own members for just cause and therefore the corrective expulsion remains in effect.”
Lau’s motion argues that the city took one position to agendize corrective action, succeeded in its corrective action to avoid prosecution, but now advances a totally inconsistent later position.
“The City should be estopped from now asserting its position that is totally inconsistent with its prior position,” the motion states.
On Oct. 19, Lau filed a supplemental exhibit regarding the motion, a letter dated the same day addressed to Dickerson from Sean Lancaster, an attorney representing the city through POOL Pact, which stated that the City of Fernley would not permit Lau to sit as a member of the City Council at its Oct. 1 meeting or any meeting thereafter and that the city would have Lau removed if he attempted to take a seat on the City Council at that meeting.
Lau requests that the judge issue an order requiring the city to state the legal and factual basis on which it claims the April 15 vote independently authorizes his continued exclusion from the council and seeks a determination on whether the city has a lawful, independently effective April basis for excluding him.
Dickerson said he expects the issue to be resolved before the City Council’s Nov. 4 meeting, and if not, by the Nov. 15 meeting.
Lau’s term as councilman ends when the City Council completes its canvass of the results of the Nov. 3 general election in December.
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