On July 5th, the following complaint was received by the Office of the Nevada Attorney General. The complaint was filed after the Virgin Valley Water Board (VVWB) failed to publicly disclose the among of public money they have given to their attorney Jedediah (Bo) Bingham and his law firm (Bingham, Snow, and Caldwell).
4 July 2019
Carson City Office
Office of the Attorney General General Investigative Division: Public Integrity 100 North Carson Street Carson City, NV 89701
Re: (a) NRS 197.220 Violations by public officers: Failure to comply with Nevada Open Records Act (N.R.S. 239 et seq)[i],[ii] (b) Concealing public records and documents under NRS 239.310, a Category C Felony.[iii] (c ) additional statutes unknown to the author.
On May 10, 1993, the Virgin Valley Water District (VVWD), 500 Riverside Road Mesquite, NV 890272 was created as a political subdivision of this state of Nevada.
On May 22, 2019, I requested that the head of the Virgin Valley Water Board (VVWB) under the Nevada Open Records Act (N.R.S. 239 et seq) provide all contracts, bills and payment information made by the Virgin Valley Water District to Bingham Snow & Caldwell, Mesquite, NV.
NRS 39.8 requires: “The head of each agency of the Executive Department designates one or more employees of the agency to act as records official for the agency.” Nonetheless, my request was sent by the VVWB President Nephi Julian to Bingham and Snow, the subject of my inquiry.
On May 31, 2019, I received an email from Travis Dunsmoor, Esq. He said that “Billing statements from the District’s legal counsel reflect private and confidential information including privileged communications between the District and its attorneys. “
However, he noted that the monthly amounts paid by the District to its attorneys are included in the District’s financial statements reported on the material for the District’s board meeting agendas. He also provided a July 14, 2009 fee agreement between the Water District and the law firm of Bingham Snow and Caldwell.
On June 2, 2019, I made a second request to the VVWB noting that financial reports (as suggested by Dunsmoor) were generally a part of a non-disclosed consent agenda which was regularly approved and seconded without further comment. Therefore, payments to Bingham Snow and Caldwell are not available through that resource.
I clarified my request to all the monthly payments made by the Water Board to Bingham and Snow as recorded in Board financial statements and noted that an emailed spreadsheet would be acceptable.
As stated on May 31, request, I again noted that: “Disclosure of the requested information is in the public interest. It contributes to public understanding of the management of publicly owned waters by publicly elected and appointed officials using public funds. As such, I request a waiver of all fees.”
In the past, financial records request by me for payments made by the VVWD to shareholders of irrigation water was honored by an employee without costs to me.
The public interest was heightened, on June 18th, when Wes Smith, the VVWD chief financial officer, told the VVWB that payments to Jedediah (Bo) Bingham and his law firm (Bingham, Snow, and Caldwell) for defense against the Paradise Canyon lawsuit will reach $360,000 his year. Smith claims that it is $240,000 over the boards approved budget. These figures do not account for all payments made to the law firm since at least 2009 and do not account for the total amount spent on all law suites against the VVVWB.
On June 11, 2019, I received an email message from McKenna Mathie, Legal Assistant to Bingham Snow and Caldwell, directing me to Virgin Valley records request forms.
On 17, June 2019, I made a third request to the VVWD for the payments made by VVWD to Bingham and Snow, again citing the Open Records Act (N.R.S. 239 et seq). I attached the appropriate forms.
In that request, I again pointed out that financial reports are not part of routinely approved consent agendas and not available through that resource.
I again clarified my request to the VVW Board (VVWB) to all monthly payments as recorded on financial statements. I said that an emailed spreadsheet would be acceptable, I said. (A download from the spreadsheet would comply with existing and pending law)
I restated that, by statute, it was up to the head of the agency to appoint someone to deal with this request.
Under existing law, if a person requests to inspect or copy a public book or record or receive a copy of a public book or record which the governmental entity is unable to make available by the end of the fifth business day after the request was received, the governmental entity is required to provide written notice of that fact to the person who made the request and the date and time after which the request will be honored.
I further, noted that the Governor signed additional emergency legislation this year dealing with public records providing for civil penalties for failure to comply with the public request including:
- For the first violation within 10 years, $1,000.
- For a second violation within 10 years, $5,000.
- For a third or subsequent violation within 10 years $10,000.
As of July 4, 2019, it has been 44 days since I made my first request and I have still not received the requested information.
Failing to assign this request to a VVWD employee as required by statute and instead assigning the request to the subject of this request was a clear attempt by the VVWB to obstruct this request.
Suggesting that I search hundreds of VVWD meeting for the possibility that I might find unavailable billing records was a clear attempt by Bingham and Snow to obstruct this request.
I request that a public integrity investigation of the VVWB and Bo Bingham and attorney’s for Bingham Snow and Caldwell be opened to determine if violations of (a) NRS 197.220, NRS 239, NRS 239.310 or additional violations have occurred and if confirmed, appropriate legal action is taken.
I further request to be notified of the name of the investigator assigned to this investigation and be routinely notified of progress.
Michael M. McGreer Executive Editor-Publisher Nevada-today.com 533 Rolling Hills Drive Mesquite, Nevada, 89027 firstname.lastname@example.org 702-346-7573
[i] NRS 197.220 Other violations by officers. Every public officer or other person who shall willfully disobey any provision of law regulating his or her official conduct in cases for which no other punishment is provided shall be guilty of a misdemeanor. [1911 C&P § 563; RL § 6828; NCL § 10508]
[ii] NRS 197.230 Conviction of public officer forfeits trust. The conviction of a public officer of any felony or malfeasance in office shall entail, in addition to such other penalty as may be imposed, the forfeiture of his or her office, and shall disqualify the public officer from ever afterward holding any public office in this State. [1911 C&P § 22; RL § 6287; NCL § 9971]
[iii] NRS 239.310 Removing, injuring or concealing public records and documents. A person who willfully and unlawfully removes, alters, mutilates, destroys, conceals or obliterates a record, map, book, paper, document or other thing filed or deposited in a public office, or with any public officer, by authority of law, is guilty of a category C felony and shall be punished as provided in NRS 193.130. [1911 C&P § 79; RL § 6344; NCL § 10028] — (NRS A 1967, 533; 1979, 1463; 1995, 1263)