PHOTO/DENNIS MYERS At a meeting during the Martinez matter last year, lawyers Mike Malloy, Randy Drake and Kent Robison eyed school board member Howard Rosenberg.

The Washoe County School Board last week demoted its lawyer Randy Drake after months during which he regularly told them they were within the bounds of the Nevada open meeting law when they were not—advising them, in effect, to break the law.

But Drake, who originally faced termination and had hired an attorney, somehow imposed conditions on his demotion, including a gag rule that bars school board members from discussing him in any but positive terms. As a result, they cannot explain their positions to the public.

The deal was negotiated for the school board by a law firm it hired, Maupin, Cox and LeGoy. It is the second gag rule imposed on the board by legal negotiations. In the previous case, in September, fired schools superintendent Pedro Martinez came away with a legal prohibition that school board members “will not disparage or malign” him, thus preventing them from explaining their actions to voters during the fall election campaign.

In a July 22, 2014, meeting during which Martinez was suspended from office, board members several times consulted Drake to make sure they were following the law. At least five members—Barbara McLaury, Barbara Clark, John Mayer, David Aiazzi and Howard Rosenberg—later told Nevada attorney general’s office investigators that he had assured them they were in compliance with the law. “He [Drake] indicated it was fine to have this conversation regarding this issue,” Clark later told an investigator. But the attorney general penalized the board members for complying with that advice.

Board members were fined for violating the open meeting law, though it had previously been state policy not to penalize officeholders for following the advice of their counsel.

On Feb. 27 this year, the attorney general’s office argued that McLaury had broken the open meeting law by following Drake’s advice on a dispute involving public comment before the board. This time, no legal resolution was reached in court, but it was another embarrassment for the board. (Some news coverage has treated attorney general findings as legally conclusive.)

The school board must now decide what to do for legal counsel. It will be using Maupin, Cox and LeGoy through September.

The board could appoint a new general counsel to replace Drake. It could hire a law firm on a permanent basis. Or it could turn to the Washoe County District Attorney’s office to provide a deputy, as the Washoe County Commission does.

The choice poses risks for taxpayers.

In Clark County, where the school district has an office of general counsel, it has become something of an empire. In 2011, Nevada Journal reported:

“The Clark County School District Office of General Counsel has an annual budget exceeding $3 million and a legal team of 10 attorneys, nine secretarial and clerical staff, plus one administrator. Part of that $3 million each year is $500,000 allocated for the hiring of additional, outside attorneys. Nevertheless, in the last three school years the office has exceeded its outside-counsel budget and has paid out over $2.1 million to 10 private law firms. Of that, over $1.2 million went to two firms—Greenberg Traurig, and Lewis and Roca (now Lewis Roca Rothgerber), according to CCSD records reviewed by Nevada Journal. For this school year, the CCSD legal office is some $179,000 over its legal services budget.”

In Washoe County, the Airport Authority was until 1989 provided with legal counsel by the district attorney’s office at a cost of $57,262 annually, plus benefits. In addition, it paid former Reno city attorney Clinton Wooster to handle some bond counsel matters he had done before leaving office as city attorney.

Then the authority dropped the deputy D.A. and switched over to hiring law firms.

In 1996, after seven years of law firms instead of a deputy district attorney, authority executive director Robert White—reacting to criticism of the growth of legal services—wrote a May 15, 1996, memorandum to board members that essentially described another empire underway.

The memo said the authority had gone from one lawyer and one consulting attorney on the payroll to nine private law firms who were paid more than half a million dollars for the first nine months of the 1995-96 fiscal year.

The bulk of the money went to two firms—Walther, Key, Maupin, Oats, Cox, Lee, and Klaich (now Maupin, Cox and LeGoy) and Vargas and Bartlett (later Jones Vargas, now Fennimore Craig).

In addition, airport staffers and board members said at the time that few of the invoices from the firms—such as a $119,123 billing described as “general business”—were scrutinized or questioned. They tended to be paid routinely.

Thus, in just seven years the airport authority’s legal bills had more than quintupled—and that relied on a listing of only three quarters of the 1995-56 fiscal year for a comparison.

Disclosure of those figures caused the airport to throttle back some in succeeding years.

According to an airport spokesperson, the amount paid in legal fees for fiscal year 2013-14 was $461,865. Of that, $316,677 was paid to Fennimore Craig and the rest of the fees were paid for specialty legal services.

State agencies receive their legal counsel from deputies attorney general and the Reno and Sparks city councils are served by elected city attorneys.

The language in the agreement between Drake and the school board that prevents them from talking about him (unless they can say something nice) is as follows: “The Parties further agree they will not disparage or malign one another with respect to any matter relating to Drake’s employment or service as Chief General Counsel, their professionalism, professional competence, ethics, work ethics, character or integrity of any of them, either collectively or individually, save and except it shall be permissible for the Parties or individual Trustees: (a) to say that the Parties agree to utilize Drake’s experience, skills, and background in his new position in the Grant Department instead of as WCSD’s Chief General Counsel; (b) to mention or refer to any provisions of the 2013 Employment Agreement, which by the terms of this Agreement is terminated, without disparaging or maligning one another; and/or (c) in the event any individual Trustee should vote ’no’ at a public meeting of the Board of Trustees in regard to his/her approval of this Agreement, such individual Trustee may state that his/her ’no’ vote is related only to the overall costs to the WCSD associated with implementation of this Agreement.”

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Dennis Myers

Dennis Myers was the news editor of the Reno News & Review. He was a journalist for more than four decades. In 1987-88 he was chief deputy secretary of state of Nevada. He was coauthor of Uniquely...