In December 2021, a legal firm (Thorndal) was retained by the IVGID Board to deal with compliance with the beach deed. Thorndal’s  engagement letter stated:

This project will include the following:

• Reviewing any proposed changes to Ordinance No.7 and Policy 16.1.1 to ensure compliance with the beach deed and applicable law.

• Reviewing the existing practice of providing recreational privileges, including beach access, to non-resident employees, their paid guests, qualified retired employees and some former Trustees without regard to their residency, to ensure compliance with the beach deed and applicable law.

Initially, IVGID will seek the opinion and recommendations [emphasis added – “work product”] of special counsel on these matters.

The engagement letter was signed by General Manager Winquest on Dec 8, 2022, and became a contract.  It is now 14 months later – so where are the opinion and recommendations? This is part 2 of: Attorney Bills $42,950 but provides no written opinion or recommendations .

NEW DEVELOPMENTS

1. The Board voted 3-2 on January 25, 2023 to end recreational beach access to non-resident employees, their paid guests, retired employees and non-resident former Trustees (gold/silver cards). But no written legal opinion or written legal recommendations were provided to include with the Board resolution. This left the decision open to potential review and reversal by another Board in the future.

 

2. IVGID has released partially redacted invoices: See Invoice Links below. Yet these invoices do not include the word “employee” or “access” BECAUSE these words have been REDACTED. The redaction appears to have been done at the direction of IVGID’s attorneys – NOT by Board action, which would have had to be public (see Nevada Open Meeting Law below). This assertion of attorney client privilege appears to not conform with established Federal case law (graphic):

https://www.govinfo.gov/content/pkg/CHRG-109hhrg26409/html/CHRG-109hhrg26409.htm  

Items 1 and 6 appear to not have been met.

a) Item 1 –  it is not the IVGID Board establishing privilege, but the lawyers.

b) Item 6  –  the Board MUST CLAIM the privilege, and the Board has taken no action to do so. Per Nevada law, all Board votes must be in public meetings. Note: The Board must act as a Board and not individually.

c)  Item 4 is questionable for multiple reasons. The Client was the Board. Was General Manager Winquest a Necessary Party in the “non-meetings” with the Board? He clearly has a conflict of interest in being the liaison with Thorndal (Balkenbush): he lives in Reno and thus is a non-resident employee who is directly affected. Plus, he is managing 830+ employees of whom 60% are non-residents and affected.  Ethics would dictate that he recused himself from the role of liaison.  And if BB&K lawyer Josh Nelson attended the “non-meetings”, was he a Necessary Party? Plus some individuals cc’d on emails may not have been “necessary parties”, such as Diane Heirshberg, a member of an appointed volunteer committee.

 

3. The emails released by IVGID show several Board “non-meetings” have been held (Email LINK below). These meetings are likely violations of the Nevada Open Meeting Law, and should have been held in public. Under Nevada Law, a “non-meeting” can only be held in specific cases, such as litigation, potential litigation, or personnel discipline issues. These meetings were held to discuss beach access for non-resident employees, their families, guests, and other non-residents. There is no specific Nevada statute that allows this type of matter to be the subject of a “non-meeting”. And it appears the lawyers told them the “non-meeting” could be held – which is a concern, as that appears to conflict with Nevada law.

Per Nevada Open Meeting Law, all votes by public bodies have to be in public, unless there is a personnel discipline matter or other SPECIFIC CASE by Nevada law that can be confidential.  (See AG MANUAL below).

 

4. No written opinion or recommendations have been provided, even though the engagement letter included the phrase “opinion/recommendations” in the scope of work, AND the invoices show time was spent on drafting at least two different opinions.   CLICK to see for yourself: search for OPINION in the invoices.

In a August 31, 2022 memorandum to the Board of Trustees, GM Winquest stated,” Special Counsel has completed work on this project and has provided information to the Board of Trustees as well as staff.” How could work have been completed, when no written opinion was delivered?

5.A resident made a public records request of the Thordal invoices and opinions/recommendations, but  received fully redacted invoices.  See article : Attorney Bills $42,950 but provides no written opinion or recommendations

Several weeks later, after the resident protested, redacted invoices (below) were received. When the resident protested again, citing Federal case law on attorney-client privilege, General Manager Indra Winquest replied:

Respectfully, your assumptions are absolutely false and not helpful in any way. I will state once again, Staff is following strict direction from both Legal Counsel and the Board of Trustees. Please understand and accept this. Indra [Feb 6, 2023]

 

Winquest did not cite any specifics as to why “assumptions” were “false”.

Information is still being withheld.  Is the tail is wagging the dog?    How can the Board be directing, when they have held no public votes to make the material confidential and can only vote in public?

 

IVGID’s lawyers and the General Manager give all appearances of coordinating to conceal public records. There were – per the engagement letter –  only TWO issues to be evaluated by the attorney. The invoices show commercial boat launching and rentals and hotel guest usage which were part of the Ordinance 7 changes. This is issue #1 in the engagement letter. Since these were not redacted, it is obvious that issue #2 – employee beach access / use – is missing (REDACTED) from the invoices. GM Winquest, a Reno resident and NOT an IVGID taxpayer,  has his loyalty to the folks that he works with every day – not IVGID taxpayers and residents. Only a fool would not see that he was trying to conceal the records on employee access and retired employee access to the beaches.

 

Recreation facility fee paying members of the public are entitled to a written opinion from the attorney Balkenbush.  It is apparent from the attorney invoices that GM Winquest considered himself the “client” in his interactions with the attorney.  It is also fairly apparent (reading between the lines in the invoices) that, early on, the attorney advised Winquest that beach access for the employees was not in compliance with the beach deed.

 

We have been informed that the issue of these public records being concealed from the public will be addressed by the IVGID Board in the near future. Will the board publicly vote to comply with the law, obtain the written opinion(s) referred to in the invoices, and be fully transparent?

 

 

 

The author, J. Gumz, is a long-time resident and property owner of Incline Village and a registered voter. Mike Abel, also a long-time resident and property owner of Incline Village, and a registered voter, contributed to this article.

https://ag.nv.gov/uploadedFiles/agnvgov/Content/About/Governmental_Affairs/OML_Portal/omlmanual.pdf

page 51

 

 

Thorndal (Balkenbush) INVOICE Links – partially redacted [Click Link to view]

ALL Invoices in one file

Emails (redacted)

EMAIL FROM IVGID PUBLIC RECORDS OFFICER

Email dated Feb 3, 2023 from IVGID’s Public Records Officer when redacted invoiced were provided for the second time. Note the email states the Board has yet to assert privilege.

“Please note that pursuant to NRS 239.0107 documents subject to the attorney-client and attorney work product privileges (see, e.g., NRS 49.095) have been withheld or redacted.  Based on Board prior direction, the Board will be agendizing an item at a future Board meeting to consider whether to assert privilege in this and similar records requests.”