Why were emails in the Mark Smith lawsuit kept secret?
Why did the Incline Village General Improvement District fight for years to keep its emails secret in the Mark Smith lawsuit?
Some history: Longtime resident Mark Smith sued IVGID in 2018 because he was not getting straight answers to questions he had regarding IVGID’s contract with Reno Disposal DBA Incline Sanitation “Waste Management”.
Some emails have been released. But others have not, under the guise of “attorney client privilege.”
A recent lawsuit win for residents of Billings, Montana prompted us to examine what may be the real reason for not disclosing the emails: the franchise fees that IVGID receives from Waste Management are likely ILLEGAL. IVGID wants to keep receiving these “franchise fees” which are over $325,000 annually. The fees are currently 10% of Waste Management’s gross revenues – and have been as high as 15%. Did General Manager Pinkerton learn the franchise fees were illegal – and decide he needed to protect the $325,000 revenue? BTW, when Pinkerton was City Manager of Davis, the city did NOT impose a franchise tax! So the argument “everyone does it” does not work.
Consider these points:
1. In Nevada, only COUNTIES AND CITIES have the right to charge franchise fees.
Washoe County’s Agreement cites NRS 244, Nevada law on Counties, for its authority to levy franchise fees, and imposes 8%.
The City of Reno’s Agreement cites NRS 268, Nevada law on Cities, for its authority to levy franchise fees. Reno takes an 8% Franchise Fee.
IVGID does not cite any NRS statute.
2. In its contract, IVGID does not cite ANY statutory authority for Franchise Fees, which are 10%. From 2007-2016, franchise fees were 15%, the highest in Nevada.
3. IVGID is (obviously) NOT a city or county. So NRS 244 and NRS 268 do not apply to IVGID. NRS Chapter 318 does. Although the IVGID Board has specific power “to contract” for “the collection and disposal of garbage and refuse from within the district,” (NRS 318.142) there is NOTHING in Nevada Law that says a General Improvement District can receive a “franchise fee” paid by the vendor. Or that a GID can levy any type of business tax. In fact, in some instances, such fees are called a “kickback”. In 1963, the Attorney General stated, “All of such statutes, NRS 318.120 to 318.145, constitute a grant of power to certain boards and governing bodies, and are a deprivation of powers and privileges in respect to the individuals residing within the affected areas, and must therefore be strictly construed [emphasis added], to include no more than Legislature clearly intended.”
4. IVGID did not competitively advertise and bid the contract. Part of the Local Government Purchase Act passed in 1975, NRS 332 requires contracts over $100,000 annually be advertised. NONE of the exceptions to competitive bidding apply to garbage collection services (see list of exceptions below). The 1975 law was passed AFTER 1963, when AB168 was passed stating GIDs could contract, without calling for bids, for the collection and disposal of garbage. The 1975 law mandated GIDs advertise and competitively bid garbage collection services. In contrast, in 2018, Carson City competitively bid and negotiated its contract for garbage collection services, with a franchise fee of 8%. And in 2021, the largest GID in Nevada, Clark County Water Reclamation District, COMPETITIVELY BID services for “Hazardous and Non-Hazardous Waste Removal, Transportation, and Disposal Services”, stating in its solicitation that it was complying with NRS 332 by using competitive bidding. Like IVGID, CCWRD was created as a GID under NRS 318. So WHY does IVGID not compettively such contracts?
5. In 1996, the Attorney General opined on franchise fees.
Note that NRS 318, the Nevada law for General Improvement Districts, is not mentioned in the 1996 Attorney General opinion – Because NRS 318 does not include any statutory authority to impose franchise fees.
From 2011-present, Waste Management has donated over $322,000 to candidates for office in Nevada, including Commissioners Bob Lucey, Marsha Berkbigler, Kitty Jung, State Senator Ben Kieckhefer and even the Republican Party. No wonder none of these elected officials will stand up for the rights of citizens to NOT pay a Waste Management franchise fee.
So what should IVGID do? If it were smart, it would revise its agreement with Incline Sanitation to remove those franchise fees. ASAP. But we are not holding our breath.
P.S. There is NO LIMIT on waste management franchise fees imposed by either a City or County in Nevada. So ask yourself – do you really want a City of Incline Village?
Exceptions to competitive bidding per NRS 332
(a) Items which may only be contracted from a sole source;
(b) Professional services;
(c) Additions to and repairs and maintenance of equipment which may be more efficiently added to, repaired or maintained by a certain person;
(d) Equipment which, by reason of the training of the personnel or of an inventory of replacement parts maintained by the local government is compatible with existing equipment;
(e) Perishable goods;
(f) Insurance;
(g) Hardware and associated peripheral equipment and devices for computers;
(h) Software for computers;
(i) Maintenance and support for:
(1) Hardware and associated peripheral equipment and devices for computers; and
(2) Software for computers;
(j) Equipment containing hardware or software for computers;
(k) Books, instructional materials, library materials and subscriptions;
(l) Motor vehicle fuel purchased by a local law enforcement agency for use in an undercover investigation;
(m) Motor vehicle fuel for use in a vehicle operated by a local law enforcement agency or local fire department if such fuel is not available within the vehicle’s assigned service area from a fueling station owned by the State of Nevada or a local government;
(n) Purchases made with money in a store fund for prisoners in a jail or local detention facility for the provision and maintenance of a canteen for the prisoners;
(o) Supplies, materials, equipment or services that are available pursuant to an agreement with a vendor that has entered into an agreement with the General Services Administration or another federal governmental agency located within or outside this State;
(p) Items for resale through a retail outlet operated in this State by a local government or the State of Nevada;
(q) Commercial advertising within a recreational facility operated by a county fair and recreation board;
(r) Goods or services purchased from organizations or agencies whose primary purpose is the training and employment of persons with disabilities; and
(s) The design of, and equipment and services associated with, systems of communication, are not subject to the requirements of this chapter for a competitive solicitation, as determined by the governing body or its authorized representative.
2. The purchase of forensic equipment and supplies used in forensic analysis …
3. The purchase of personal safety equipment for use by a response agency …
4. The purchase of goods commonly used by a hospital …
IVGID – What happens & to some extent why.
First, 2 facts. 1) Every community of living things wants to increase their number. 2. IVGID is a community of living things.
Rationale. I’m (pretend) an IVGID employee; except for the drive back & forth to work, I like working here (tasks & benefits). IVGID is growing organization; I will get promoted because IVGID likes to take on new capabilities.
What is an example of a recent IVGID growth? The IVGID Quarterly, a magazine. How would you like to be the publisher (for profit) of a Lake Tahoe publication & to add to your woes, you now have to compete with a publication where profit & loss don’t exist?
How we got here. I’ve been a happy resident of IV for a couple of years (pretend); I’ll run for IVGID B of T. I win!!! What’s my mindset? If there was anything amiss with IVGID, my predecessors would have fixed it.
IVGID Charter. In a cursory search, Google & I can’t find the IVGID Charter. This quote is from IVGID.Org, “The Incline Village General Improvement District, commonly referred to as IVGID, was established under Nevada Revised Statute, Chapter 318 and chartered to provide water, sewer, trash and recreation services for the communities of Incline Village and Crystal Bay, Nevada.”
Did I mention the Mark Smith lawsuit that has been dragging on for more than a year & instead of resolving the suit & putting an end to the mounting charges, little is done?
Washoe County Ordinance 97 created IVGID with these powers:
1. water
2. sewer,
3. trash collection and disposal,
4. lighting public streets, and
5. facilities for public recreation
The actual ordinance and amendments are on the Washoe County web site. IVGID has never published Ordinance 97 on its web site.
Below is a synopsis of the powers.
Note that IVGID does NOT have powers regarding recreation programs. And “private” recreation, e.g. the beaches, are not mentioned in Ordinance 97 or its amendments.
APRIL 20, 1961
Washoe County Ordinance 97 Creating IVGID:
3. The general purposes for which the district is proposed to be formed, are:
(a) To grade and regrade and to surface and to resurface streets, alleys and public highways, and parts thereof, within the district, with suitable material, and to acquire street and alley improvements necessary and incidental thereto.
(b) To improve streets within the district by grading and regrading and by the construction and reconstruction of curb, gutter and combined curb and gutter, in combination with sidewalk or otherwise, and to acquire improvements necessary and incidental to the foregoing improvements, including, without limiting the generality thereof, drains, catch basins, valley gutters, driveway inlets and the removal of existing improvements.
(c) To construct, reconstruct, replace or extend sidewalks, adjacent to or in combination with curb and gutter or otherwise, within the district, and to acquire improvements necessary and incidental thereto.
(d) To construct, reconstruct, replace or extend storm-sewer and other drainage facilities and improvements necessary and incidental thereto within the district, including, without limiting the generality of the foregoing, the laying of pipes and the erection of catch basins, drains, and necessary inlets and outlets.
(e) To construct, reconstruct, improve, extend or better the sanitary sewer system or any part thereof, including without limiting. the generality of the foregoing, mains, laterals, wyes, tees, meters and collection, treatment and disposal plants.
(f) To sell any product or byproduct thereof and acquire the appropriate outlets within or without the district and to extend the sewer lines of the district thereto.
(g) To acquire, construct, reconstruct, improve, extend or better a works, system or facilities for the supply, storage and distribution of water for private and public purposes.
(h) To operate, maintain and repair the improvements acquired by the district.
FEBRUARY 5, 1964 AMENDMENT
County Ordinance 97, Section 3, is hereby amended to add the following powers to the Incline Village General Improvement District:
(i) To acquire, construct, reconstruct, improve, extend or better a works, system or facilities for lighting public streets, ways and places, or contract for providing such facilities and the electrical current necessary therefor, or such current, with any public utility serving the district, at uniform rates and charges established for the utility operator.
[(j) SIC] disposal of garbage and refuse, and to own and operate equipment for the collection and disposal of, and collect and dispose of, garbage and refuse, or to contract for the collection and disposal of garbage and refuse from within the district.
OCTOBER 5, 1965 Amendment
1. County Ordinance 97, Section 3, is hereby amended
by adding. thereto a subsection (k) to read as follows:
11 (k) To acquire, construct, reconstruct, improve, extend and better lands, works, systems and facilities for public recreation. If the proposed recreational facilities are situated within 7 miles from the boundary of an incorporated city or unincorporated town, and if the county in which the proposed recreational facilities are situated has adopted a recreation plan pursuant to Chapter 278 of NRS, the authority conferred herein by this subsection (k) may be exercised only in conformity with such p1an.”
APRIL 5, 1969 AMENDMENT
County Ordinance No. 97, Section 3, is hereby amended by adding thereto a subsection (l) to read as follows:
(l) To acquire, either by purchase, condemnation or other legal means, all lands, rights and other property necessary for the construction, use and supply, operation, maintenance, repair and improvement of the works of the district, including without limitation, works, system, facilities or properties, together with all parts thereof, the appurtenances thereto, including contract rights, used and useful primarily for the distribution of electric energy to or for the public for any purpose, works constructed and being constructed by private owners,· and all other works and appurtenances, either within or without the State of Nevada; provided that all such tangible works of the district shall, upon acquisition and for adequate .consideration, be transferred to and be thereafter owned and maintained by a public utility which is regulated by the Public Service Commission of Nevada.
[BUT THIS REGULATION WAS REMOVED in the 1970s. the PUC DOES NOT REGULATE General Improvement Districts.]