PHOTO/DENNIS MYERS
During the Martinez matter last year, lawyers Mike Malloy, Randy Drake and Kent Robison awaited the start of a school board meeting. Board member Howard Rosenberg is in the foreground.
Could Nevada beat big mining? Most large mining companies operating in Nevada are Canadian, and U.S. Sen. Elizabeth Warren of Massachusetts is using a dispute involving one of them to make her case against the Trans-Pacific Partnership trade agreement. She argues that investor-state dispute settlement (ISDS) procedures under trade agreements can override national and local mining regulation. ISDS is a means of international law that can allow investors to use dispute settlement against a government without going to court. In an essay released last week, Warren wrote, “I’ll give you a recent example of how it works: A big mining company wanted to do some blasting off the coast of Nova Scotia. The Canadian government refused to provide permits because it thought the blasting would harm the local environment and scare off fish that local fishermen needed to make a living. “Thanks to an ISDS provision in a past trade agreement, that mining company didn’t have to go to a Canadian court to challenge the permit decision—they went right to a special ISDS panel of corporate lawyers. Last month, the international panel ruled in favor of the mining company, and the decision cannot be challenged in Canadian courts. “Now the Canadian taxpayers may be on the hook for up to $300 million in ‘damages’ to the mining company—all because their government had the gall to stand up for its environment and the economic livelihood of its local fishermen. And the next time a foreign company wants a blasting permit, what will the Canadian government do?” Warren said there were similar outcomes in disputes in Egypt, Germany, and the Czech Republic. “Philip Morris is using ISDS right now to try to stop countries like Australia and Uruguay from implementing new rules that are intended to cut smoking rates—because the new laws might eat into the tobacco giant’s profits,” she wrote. She also wrote, “ISDS isn’t a one-time, hypothetical problem— we’ve seen it in past trade agreements.” Reinforcing that point, Warren this week issued another report, “Broken Promises: Decades of Failure to Enforce Labor Standards in Free Trade Agreements,” based on information from the General Accountability Office and federal agencies. In the report, Warren said that the Obama administration has not acted to police earlier trade agreements, undercutting the president’s claim that TPP would be a forward-looking agreement. “The United States does not enforce the labor protections in its trade agreements,” the report says. “Guatemala was named ‘the most dangerous country in the world for trade unionists’ five years after entering a trade agreement with the U.S. In Colombia, despite the existence of a special ‘Labor Action Plan’ put in place to address long-standing problems and secure passage of the Colombia FTA [free trade agreement], 105 union activists have been murdered and 1,337 death threats have been issued since the Labor Action Plan was finalized four years ago.”
Longer campaigns proposed Under a GOP bill making its way through the Nevada Legislature, Nevada primary elections would be held in February. State Republicans have long disliked the early Nevada presidential caucuses because of their identification with Harry Reid, who was instrumental in getting Nevada the early slot. The GOP bill, Senate Bill 421, would allow Democrats to continue having caucuses but would give Republicans a primary—though they would still have to hold caucuses (called precinct meetings in Nevada) to select nominating convention delegates. To save money, the state primary for local and state offices would be held on the same day in February as the presidential primary—and result in a very long election campaign. A similar measure passed by the 1953 legislature at the initiative of Democrats and first used in the non-presidential year of 1954 was so unpopular because of the long campaign that it was repealed in 1955 without ever being used for presidential purposes.
—Dennis Myers
8 | RN&R |
MAY 21, 2015
Drake demoted School board mulls what to do about legal services The Washoe County School Board last week demoted its lawyer Randy Drake after months during which he reguby larly told them they were within the Dennis Myers 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.
“They will not disparage or malign one another with respect to any matter relating to Drake’s employment.” Agreement between Washoe School Board and Randy Drake 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 199596 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).
