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Hiring Joey Gilbert as Douglas County School District’s legal counsel may have been a bad idea

In August, Joey Gilbert’s firm was selected by the Douglas County School Board to represent their district. Now the invoices are coming in.
David Colborne
David Colborne

Nearly two months ago, the Douglas County School District replaced its legal representation with failed gubernatorial candidate and algorithmic expert Joey Gilbert. How’s that working out for them so far?

In a word, expensively. According to Carson Now and The Nevada Independent, Gilbert’s firm invoiced the district for over $35,000 in its first month of business with the district. Not only did this exceed the $7,500 monthly retainer previously agreed to in his contract, it also burned through nearly a quarter of the district’s $160,000 annual legal budget in 30 days.

What is the district getting in return for this increased investment?

If the most recent meeting of the school board is any indication, that’s an alarmingly good question. Within the first hour of the board’s meeting, multiple trustees asked if the district even had a binding contract with Gilbert since the superintendent never signed it.  In response, Gilbert’s team claimed the superintendent “constructively approved it” by not responding negatively to an email containing the contract.

This precedent, I’m sure, will be greeted with enthusiasm by the district’s current and prospective vendors. In the past, district personnel actually had to explicitly agree to purchase goods and services before an invoice would get paid. Now that refusing to respond to an email is deemed a “constructive approval” by the district’s legal representation, however, several eager sales representatives may invoice the district for all of the sales quotes previously ignored by disinterested administrative personnel.

The questions surrounding Gilbert’s services didn’t end there. 

One trustee pointed out that Gilbert seemingly invoiced for the costs incurred in drafting and negotiating the contract the district is ostensibly paying him with. If true, that would mean Gilbert’s firm was assessing charges against the district before the district had agreed to pay his firm a single penny.

Another trustee observed that many of the invoices drafted by Gilbert’s firm were issued in the name of Trustee David Burns, who serves as the board’s clerk. If you’re wondering if individual board members have the unilateral power or authority to do anything that might cost the district money, the answer is usually no — but the legal geniuses at Gilbert’s law firm are happy to make an exception for invoicing purposes.

The observations didn’t end there. During the meeting, it was noted that an overwhelming majority of the invoices issued by Gilbert’s law firm referenced one of his employees — an employee who, despite billing at the same rate as a licensed attorney, is not one. This employee billed the district $325 per hour to, among other things, watch board meetings online (board meetings that Gilbert was already present and billing for) and research various statutes and regulations that a firm offering legal services for a school district should already be familiar with.

In related news, the Douglas County School District now owes me, who is also not a licensed attorney, $3,500 for watching its seven-hour board meeting on YouTube, downloading the Nevada Open Meeting Law Manual and reviewing the district’s policies and regulations. This invoice may be paid at The Nevada Independent’s donation page. Failure to respond negatively via email to this column will be interpreted as constructive approval of this invoice.

It’s tempting at this point to note that those previously acquainted with Gilbert’s legal work should be familiar with his staffing and billing practices by now. As my colleague Jason Guinasso pointed out over a year before Gilbert pitched his firm’s new line of business to the Douglas County school board, “In the legal profession, he is known as a ‘rainmaker’ for a firm. However, like many rainmakers at law firms in Nevada, he rarely, if ever, does the legal work for the clients he solicits.” 

Put more bluntly, Gilbert would never attend a school board meeting or otherwise exercise a direct personal touch upon the legal affairs of a school district unless he thought doing so might advance his political and fiscal ambitions. Getting paid $325 per hour for campaign appearances is a neat trick if you can pull it off.

Gilbert’s creative invoicing work, however, may overshadow some of the more concerning policy changes the Douglas County School Board is considering with his firm’s encouragement. As Sean Golonka reported for The Nevada Independent, the lengthy discussions surrounding the status of Gilbert’s invoices and contract prevented the board from fully considering its proposed agenda, which featured sweeping changes to the bylaws and policies governing the school district — policies which were openly supported by Gilbert and his team during the meeting.

For example, one proposed policy, as reported by Carson Now, included an update to the district’s public records fee schedule. Currently, the school district doesn’t charge for public records. The updated policy, however, would set a fee of $0.50 per page if the request required more than two hours of staff labor to fulfill. 

If enacted, that policy will create an obvious legal issue for the district since, as the Nevada Open Government Coalition points out, state law allows public entities only to charge for the actual costs of recovering public records — meaning, the cost of the physical consumables used to print and deliver public records. As the statute itself states in plain language, “The term does not include a cost that a governmental entity incurs regardless of whether or not a person requests a copy of a particular public record.” 

District staff, like all public employees in Nevada, are hired to perform services for constituents, including furnishing responsive public records upon request, and are paid whether constituents request public records or not. Similarly, the physical infrastructure used to host public records by the district would also be paid for by the district regardless of whether or not a constituent asks for a record from those systems. Consequently, the district is statutorily prohibited from charging for staff time or passing along the costs of supporting infrastructure to recover public records.

Failure to comply with the state’s public record law may statutorily cost the district up to $10,000 per violation plus reasonable attorney fees. Putting that into perspective, a dozen public records requests under the new policy could potentially exhaust the entire annual legal budget for the district in fines and opposing attorney fees alone. If Gilbert’s firm charges for the staff time incurred in preparing a defense, the liabilities facing the district could quickly spiral out of control.

Another set of proposed bylaw and policy changes, meanwhile, require all communications from the district to students, parents, the press or the public more generally to be approved by the school board before distribution. From a practical standpoint, how the district will be able to announce a snow day (as a reminder, South Lake Tahoe, which regularly receives nontrivial amounts of snow each winter, is in Douglas County) while adhering to this policy remains something of a mystery. From an administrative standpoint, would every student’s report card need to be approved by the school board before it is distributed to parents under these policies?

There were also bylaw changes proposed that, if enacted, would obligate trustees to support decisions made by the board, both publicly and privately, even if they voted against the decision. If school board trustees were appointed, these changes might be defensible as an extension of the government speech doctrine — the district, as a government, has the right to decide which messages it wishes to convey to the public. In Nevada, however, school board trustees are elected. Consequently, disagreements over unfavorable board decisions, whether those disagreements are public or private, are political speech, which enjoys strong protections under the First Amendment of the U.S. Constitution and Article 1, Section 9 of the Nevada Constitution.

No, a majority of elected officials can’t compel a minority of elected officials to agree with them, even if they happen to be elected to an ostensibly nonpartisan school board. If they could, the most recent session of the Legislature would have been much less entertaining.

It’s tempting to once again misquote Napoleon and blithely state that it’s rude to interrupt Gilbert and his political allies while they’re in the process of destroying themselves. Gilbert’s creative and aggressive billing practices will surely not endear other school districts to contract with his firm. His firm’s legal output will likely make the one school district he snookered into doing business with him financially liable for a series of avoidable constitutional and statutory violations. The board’s proposed policies, if enacted, will make the district less accountable and less transparent to the public it serves.

Unfortunately, Gilbert won’t be the one cutting checks to the constituents denied affordable access to their public records. Similarly, the individual trustees who selected him won’t be held directly accountable when district staff refuse to talk to the public they’re supposed to serve, lest they inadvertently violate board policy by doing so.

Instead, the real victims of this politically driven self-immolation will be the staff, teachers, students and families who have to sacrifice hours of their lives each day to satisfy the whims of four elected trustees and the lawyer they may — or may not — have contracted to represent them.

David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky or email him at [email protected]


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