2018 12-20 AGO Request PEBP AG Opinion 2017-15

State of Nevada Seal ADAM PAUL LAXALT At.torney General OPINION NO. 2017-15 Mr. Damon Haycock Executive Officer State of Nevada STATE OF NEVADA OFFICE OF THE ATTORNEY GENERAL 100 North Carson Street Carson City, Nevada 89701 December 20, 2018 J. BRIN GIBSON First Assistant. At.tomey General NICHOLAS A. TRUTANICH Chief of Staff KETAN D. BHIRUD General Counsel PUBLIC EMPLOYEES; CONCEALED FIREARMS; PUBLIC BUILDINGS: Pursuant to NRS 202.3673, the holder of a concealed firearms permit may not be prohibited from carrying a concealed firearm in a public building in which he or she is employed; conditions or restrictions on such carry will be scrutinized for whether they amount to a denial of the authorization granted under that section. Public Employees' Benefits Program 901 S. Stewart Street, Suite 1001 Carson City, Nevada 89701 Dear Mr. Haycock: In your capacity as the Executive Officer of the Public Employees' Benefits Program (PEBP), you have requested an opinion from the Office of the Attorney General regarding Nevada firearms law as it pertains to PEBP employees who hold permits to carry concealed firearms. Your question concerns the scope of your authority, if any, to impose conditions or restrictions on their ability to carry concealed firearms while on PEEP's premises in the Bryan Building in Carson City. Telephone: 775-684-1100 • Fax: 775-684-1108 • Web: ag.nv.gov • E-mail: aginfo@ag.nv.gov Twitter: @NevadaAG • Facebook: INVAttorneyGeneral • YouTube: /NevadaAG Damon Haycock, Executive Officer State of Nevada Public Employees' Benefits Program December 20, 2018 Page 2 QUESTION PRESENTED What if any conditions or restrictions may PEEP's Executive Officer impose upon employees who hold concealed carry permits and desire to carry concealed firearms while at their workplace in the Bryan Building? SUMMARY ANSWER PEEP's Executive Officer may not prohibit a PEEP employee from carrying a concealed firearm while on PEEP's premises if the employee holds a valid permit to carry concealed firearms and otherwise adheres to all federal, state and local laws governing the possession and use of firearms generally. The plain language of NRS 202.3673(1) provides without qualification that holders of permits to carry concealed firearms "may carry" their firearms on the premises where they are employed, negating any authority on the part of the employer to impose conditions of employment that would effectively deny employees the ability to carry concealed firearms in accordance with this statutory authorization. ANALYSIS In 1995, the Legislatuxe enacted a bill stating that a person holding a permit "must rwt carry a concealed fireaTm into," inter alia, "(a)ny ... building owned or occupied by the Federal Government, the state or local government." Act of July 7, 1995, ch. 713, § 8, 1995 Nev. Stat. 2725 (S.B. 299). This prohibition was "not applicable to an employee of the facility ... while on the premises of that facility." Id. Formerly codified at NRS 202.3673, these provisions were amended in 1999 by A.B. 166 of the 70th Session of the Nevada Legislatme. Act of June 9, 1999, ch. 539, § 1, 1999 Nev. Stat. 2767 (A.B. 166). As amended by A.B. 166, NRS 202.3673 now states, "a permittee may carry a concealed firearm while the permittee is on the premises of any public building." NRS 202.3673(1) (emphasis added.). Since the 1995 version of the law established an exception to a criminal prohibition, exempting qualifYing employees from criminal prosecution only, the exception did not necessarily preclude the imposition of civil or administrative prohibitions based in employment or state personnel law. By contrast, the law as amended after 1995 contains an affu'mative grant of authority that operates independently of any criminal prohibition, subject only to a few narrow exceptions. See NRS 202.3673(2)-(3). Damon Haycock, Executive Officer State of Nevada Public Employees' Benefits Program December 20, 2018 Page 3 More specifically, the statute as amended after 1995 prohibits the possession of concealed firearms in certain public buildings such as public aixports and buildings used by the university system and public schools. NRS 202.3673(2)-(3). Applicable to the Bryan Building, it also prohibits the possession of concealed firearms in other public buildings with a "no fixearms allowed" sign at each public entrance. NRS 202.3673(3)(b). Although the signage exception applies to the general public, it has no application to permittees employed in that public building. NRS 202.3673(4)(c). Accordingly, NRS 202.3673(1) grants to permittees unqualified authority to cany concealed firearms in certain public buildings where they are employed. Thus, the 1999legislation changed the language ofNRS 202.3673 from a qualified criminal prohibition against the possession of concealed fu·eru.·ms in public buildings, to an affu·mative grant of authority to specified persons holding concealed cru.1.y :fireru.·ms permits. Among those persons ru.·e public employees who work in certain public buildings, including the B1yan Building, where the possession of concealed fu·eru.·ms is otherwise prohibited due to the posting ofprohibitmy signage. While NRS 202.3673 was amended in 2007 to add childcru.·e facilities to the list of buildings where concealed fireru.·ms ru.·e generally prohibited notwithstanding the presence or absence of signage, the 1999 version of the law has remained the same in all other significant respects. See Act of June 13, 2007, ch. 418, § 2, 2007 Nev. Stat. 1914-15 (S.B. 354). When a statute is cleru.· on its face, a court is required to apply its plain meaning. State v. Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011). NRS 202.3673(1), as it has been worded since 1999, uses the verb "may," which generally expresses "ability, competence, liberty, permission, possibility, probability or contingency." BLACK'S LAW DICTIONARY, (5th ed. 1979) 883. ''May cru.1.y'' expresses liberty or permission to cru.1.y. See also, Butler v. State, 120 Nev. 879, 893, 102 P.3d 71, 81 (2004) Q.egislative use of "may' is typically construed as a permissive grant of authority). A plain reading ofNRS 202.3673(1) is that it grants permission, without qualification, to employees with permits to cru.1.y concealed weapons at the public buildings where they ru.·e employed, excepting child cru.·e facilities, public schools, public airports, and buildings owned by the Nevada System of Higher Education. In stating that permittees "may cru.1.y'' concealed fu·eru.·ms in their places of employment (other than those places already noted), the statute does three things: (1) it makes inapplicable any criminal sanction that would otherwise apply to a member of the general public; (2) it precludes denial Damon Haycock, Executive Officer State of Nevada Public Employees' Benefits Program December 20, 2018 Page 4 of ent1y to a permittee employed in the building who is canying a concealed weapon; and, relevant here, (3) it denies state and local employers the authority to prohibit the possession of concealed fil'earms on premises by employees who are permittees. As amended by A.B. 166, the culTent version ofNRS 202.3673 contrasts sharply with the pre-1999 version of the statute. Having only exempted permittees from criminal prosecution, the former version of the statute could not be reasonably construed to supersede possible workplace rules restricting concealed carry. By inserting "may carry" into NRS 202.3673(1), A.B. 166 effected a material change in the statute that takes precedence over possible workplace rules and restrictions. See Utter v. Casey, 81 Nev. 268,274,401 P.2d 684,688 (1965) (any material change in the language of the original act is presumed to indicate a change in legal rights). A review of the legislative histo1y of A.B. 166 supports this conclusion. As introduced, A.B. 166 (1999) simply broadened the categories of public buildings in which concealed cany was authorized, without adding the "may carry'' language that currently appem·s in the statute. Testifying as to the purpose of the bill, Assemblyman Hettrick, the primmy sponsor, noted that studies showed that limiting concealed cm1.-y reduced, rather than increased, safety, which he opined would be true in the case of public buildings because a "criminal would most likely go to a public building where, by existing state law, you would be gum·anteed a person was not cm1.ying a weapon .... " Hearing on A.B. 166 Before the Assembly Committee on Judiciary, 1999 Leg., 70th Sess. 10 (Februmy 26, 1999). After hem1ng this testimony on the purpose of the bill, the legislature amended A.B. 166 to add the "may cm'l.'y'' language, thus implicitly endorsing concealed cm1.y as a deterrent to would-be assailants. Applying its plain meaning, this grant of authority to cm1.y concealed fu·em·ms supplants the authority of the employer to adopt or enforce personnel rules prohibiting qualifying employees from cm1.ying concealed fu·em·ms in the workplace. An example of such a rule is NAC 284.650(20), a regulation that authorizes the discipline of employees for "(c)m1.ying, while on the premises ofthe workplace, any fu·em·m which is not required for the performance of the employee's culTent job duties or authorized by his or her appointing authority." This regulation predates the 1999 legislation, and ostensibly remains unaffected insofar as it regulates open carry in the work place. Insofar as the regulation purports to prohibit qualifying employees from carrying concealed firearms in the workplace, it is without force or effect because it conflicts with NRS 202.3673. See State, Division of Insurance v. State Farm Mutual Automobile Damon Haycock, Executive Officer State of Nevada Public Employees' Benefits Program December 20, 201 H Page 5 Insurance Co. , 11G Nev. 290, 295, 995 P.2d 1182, 486 (2000) (holding that conflict between a statute nnd regulation rendered the regulation invalid). CONCLUSION By authorizing PEBP's employees who hold valid permits to carry concealed firearm. in !he Bryan Building, NRS 202.3673(1) precludes PEBP's Executive Officer from adopting or onf(Jrcing conditions or restrictions on cmploymcnL-rclatcd activities " that would have the effect of denying those employees the authority granted to them under that. ccLion or tho statuto. SincerEJ ly, ADAM PAUL LAXALT Deputy Attorney Genom I Division of Bus inc ·s and Taxation DLB/klr