Joey Gilbert and team’s novel legal advice to Douglas County School Board draws scrutiny

As local school boards continue to be a hotbed for political battles and culture wars, the fight playing out on the Douglas County School Board has divided trustees and the superintendent, while bringing questions over state law, board policies and costly legal fees.

Since trustees hired Reno lawyer and former Republican politician Joey Gilbert as the school district’s legal counsel in a contentious split vote in July, Gilbert’s team has pursued novel legal arguments to help push forward a proposed set of changes to board policies that critics say limit the superintendent’s power.

During a seven-hour-long board meeting earlier this month, those arguments — centered on the claim that the board previously delegated powers to the superintendent not consistent with state law — sparked sharp disagreement between Gilbert’s team, trustees who opposed Gilbert’s contract and Superintendent Keith Lewis.

Gilbert’s firm’s fees through the first month — which totaled $36,000, much higher than the district’s prior legal counsel billed — also drew criticism.

Read more here about the divisive board meeting.

Lewis is worried those costs will bust the budget for the rural school district that serves about 5,500 students in a deep-red county 50 miles south of Reno. And several attorneys who spoke with The Nevada Independent raised questions about the ethics of Gilbert’s fees and efforts to change the bylaws.

Amid the turnover in the board’s legal counsel, Benjamin Edwards, an attorney and UNLV law professor who specializes in legal ethics, cautioned that good lawyers are meant to provide their clients with candid advice, and if a client does not listen to that advice, it can present several risks.

“The first is that in the future it's gonna be harder for any counsel to give them the advice they might not want to hear because they've created a sort of a history and environment that if they give them unpopular advice, they're going to disregard it or perhaps retaliate by terminating counsel,” he said. “The other major danger is that if they're not willing to hear and thoughtfully consider and heed good legal advice, they may blunder into a position they don't want to be in.”

Gilbert and his team did not respond to multiple requests for comment, while Board President Susan Jansen declined a request for an interview, stating that she would only speak with The Nevada Globe.

Transition to Gilbert as counsel brings higher costs, ethics concerns

Tensions have been boiling for months in Douglas County, including when some trustees began pursuing a policy blocking transgender students from certain locker rooms, bathrooms and sports teams.

In June, Jansen proposed cutting ties with Maupin, Cox & LeGoy, a Reno-based firm that had served the district since 1995 and has extensive experience in education law. Despite protests from other board members, trustees in July replaced their longtime counsel with Joey Gilbert Law, a Reno-based firm primarily specializing in DUI, criminal defense and personal injury cases.

An attorney for Maupin, Cox and LeGoy declined to comment on the situation.

Gilbert finished second in the GOP primary for governor last year before filing an unsuccessful lawsuit challenging the legitimacy of the election. The case resulted in a judge sanctioning Gilbert and ordering him to pay $161,000 of Gov. Joe Lombardo’s attorneys fees as part of the state’s “frivolous lawsuit” statute. Gilbert has built notoriety for attending the Jan. 6 “Stop the Steal” rally outside the U.S. Capitol the day it was violently stormed, lawsuits challenging COVID restrictions during the pandemic and briefly partnering with Lander County for potential voter fraud litigation.

Prior to pursuing Gilbert’s hiring, Jansen said she had lost trust in the board’s previous counsel at a June board meeting.

“I don’t feel that they’ve fought for us,” she said. “I don’t feel that they would want to fight for us against the (American Civil Liberties Union) or a lot of these woke agenda things that have come up.”

Jansen’s comments referenced a warning from the ACLU of Nevada that the organization would pursue litigation if the board approved the transgender student policy.

Since coming on board as counsel, Gilbert’s firm has racked up charges that are projected to exceed the district’s annual budget for legal services if they continue at the current pace. The firm charges a monthly retainer of $7,500 (more than the previous firm’s $5,000) and other services are billed at $325 per hour, up from $225 per hour.

Edwards said it can cost more to hire an attorney without expertise in a specific area. During the meeting when Gilbert was hired, he noted his lack of experience in education law, but said he would work to get up to speed.

“A lawyer who has no expertise in a particular area can ethically take it on, so long as they put in the time and do the work to become competent in providing those services,” Edwards said. “Now, if you are in the position of hiring counsel, you may or may not want to pay for them to spend that additional time to develop that expertise.”

Trustees who opposed Gilbert’s contract, Linda Gilkerson and Carey Kangas, expressed concern that many of the charges came from services provided by Kiera Sears, an employee of Gilbert’s firm who holds a law degree but is not a licensed attorney with the State Bar of Nevada, and were further concerned that some of the charges were for researching state law.

Edwards said it does not surprise him “that a firm that hasn't done this work before would be less efficient at doing it than a firm that has experience in the space.”

The state’s professional conduct rules for attorneys contains guidelines for fees that include a range of factors to determine the reasonableness of a fee, including the experience and ability of the lawyer and nature of the relationship with the client.

In an interview with The Nevada Independent, Lewis, the superintendent, said the recent conflict “puts a cloud over the district.”

“I'm responsible for what has been budgeted about $160,000, and we're certainly on pace to blow past that. That's on my watch. In that way, I think I have a right to be concerned,” he said.

To cut down on those increasing costs, Lewis said he’d like to see the district develop a more formal request system for legal counsel, but noted that he operates in accordance with what the board wants.

Several attorneys who spoke with The Nevada Independent also raised concerns about the high costs being charged to the district. Amanda Morgan, a civil rights attorney and legal director for the Educate Nevada Now public education advocacy group, said there is already public distrust of school districts’ financial decision making — a problem notably playing out in Clark County’s ongoing teacher contract dispute. In a smaller district, such as Douglas County, those legal fees could be consequential, she said, especially if the district faces other financial problems such as staff shortages.

Athar Haseebullah, executive director of the ACLU of Nevada and previous general counsel for an education nonprofit, criticized the board for hiring a firm that is “invoicing them for basic law classes and basic legal research at a rate that's astronomically high for somebody who's not an attorney” — a reference to Sears, whose services were billed at the same rate as Gilbert’s.

Edwards noted that a person “who has a law degree, but is not licensed as an attorney, functionally is in a very similar position to a paralegal” — meaning “they cannot give legal advice and they cannot practice law on their own.” It is not legal under state law to practice law without a license.

In the case of Sears, Daniel Hooge, counsel for the State Bar, said in an email to The Nevada Independent that “upon a careful review of the details of the board meeting,” he found that Sears acted under the direct supervision of Gilbert and no violations took place.

Edwards added that “generally the best practice is going to be for the advice to be coming directly from the attorney,” even if an attorney is relying on the work of a non-attorney under their supervision.

Sears and Gilbert have a yearslong history of working together, including forming a political action committee in 2016 to support providing legal access to medical marijuana for veterans. During the 2015 legislative session, the two were registered together as lobbyists for a firm called Prestige Worldwide NV.

Trustees debate legal arguments for bylaws changes

With the September meeting derailed by heated exchanges over Gilbert’s contract, trustees failed to act on most agenda items — including a wide-ranging overhaul of board bylaws.

However in a 5-1 vote roughly 20 minutes before midnight, when the meeting was statutorily required to end, the trustees approved suspending a set of provisions within four bylaws, including in part:

— a requirement for trustees to “strive for a positive working relationship with the superintendent, respecting the superintendent’s authority to advise the board, implement board policy and administer the district.”
Gilbert described the changes as “returning stuff back to the status quo” — though a series of proposed bylaws first introduced through the September meeting agenda include potentially new rules, including in part:

— a requirement for all district communications prepared by the superintendent or administration to be delivered to the public, parents or students to first be presented to the board for approval;

— a requirement for all agenda items to be finalized by legal counsel;

— and a requirement to route public records requests through legal counsel (instead of the superintendent).

At the meeting, Sears spoke significantly more than Gilbert and often was the first to respond to comments or questions from trustees, the superintendent and the public. Sears repeatedly said that some board bylaws were not consistent with state statutes and that the bylaws had delegated powers to the superintendent not allowed within state law.

“The prior board made changes that we believe exceed the statutory authority… It's reverting it to the way that it was prior to those changes being made,” Sears said.

Sears at one point during the meeting referenced state law governing school boards. The law enumerates broad powers granted to school boards “as may be requisite to attain the ends for which the public schools … are established.” With broad powers and responsibilities, the board does have the ability to seek changes to its policies and to the powers of the superintendent.

Specifically in regards to a board bylaw stating that the agenda for each board “be developed” by the superintendent and board president, Sears said it constituted an “invalid delegation that's not authorized under statute.” Still, Gilbert and Sears said multiple times it was not “illegal.” The vote Tuesday reverted that rule to state that the superintendent help “prepare” the agenda.

“The superintendent cannot participate in the development of an agenda meeting because that gives him a legislative power,” Sears said at the meeting. “And he is not allowed to have a legislative power because he's not elected.”

Lewis said in an interview that argument did not make sense to him and described the interpretation of state law as “very isolated.”

“It would be an interpretation that no other school district in the state has interpreted that way,” Lewis said.

The board’s bylaws define its legislative power as “its rule-making power” involving “adopting bylaws and policies for the organization and operation of the school district,” and that its executive power involves “the appointment of a superintendent.” State law states that the board may “define the powers and fix the duties of the superintendent.”

Sears’ arguments were questioned by at least one member of the public at the September meeting.

“Does Nevada statute restrict school districts from allowing school boards to designate staff to help build an agenda?” former Douglas High School Principal Marty Swisher asked. “Because if it is, we ought to start looking at other school districts. We got problems.”

While the language that the superintendent “prepare” rather than help “develop” the agenda aligns with rules in other similarly sizes school districts, including Carson City, Lyon County and Elko County, those districts also have rules granting the superintendent broad authority over district operations, such as in Lyon County the power to “develop procedures and regulations as … necessary to ensure efficient operation of the district.”

Despite her comments on what the board is statutorily allowed to do, Gilbert said during the meeting that Sears was “not here giving legal advice” — separately adding that she was not paid to attend the September meeting — and that she was present to “provide additional information on legislative functions and governmental affairs and procedures.”

Lewis said that he was not aware of the purpose of the proposed bylaws changes, and that he was not involved in the process of developing them.

“Until it's explained to me, I really don't. I don't know what the intent is. It certainly appears to be to wrestle power from the superintendent,” he said, adding that some trustees have publicly stated the superintendent “has too much power” and that the “changes will put the power back where they believe it should be.”

In particular, he took issue with proposals to change the district’s public records process and to require board approval of any district communications.

Haseebullah described the proposed bylaws changes as “trying to micromanage the superintendent to a point where he's no longer able to be effective.”

Contract dispute

Another point of tension at the September board meeting was the matter of Gilbert’s contract with the board. Trustees indicated that an updated version of the contract — one that had not been presented for approval at the July meeting — was later approved without a vote from the full board.

Gilbert described the changes as fixing clerical errors and said there were not any material changes between the two contracts.

But Lewis disagreed — saying in an interview there was language removed from the updated contract stating it would not take effect until approved by the superintendent or chief financial officer for the district.

“Making changes to a contract after you've already agreed to it, after a board has agreed to and voted in favor of it, creates uncertainty about its enforceability,” Edwards, the UNLV professor, said.

During the meeting, Sears told Lewis that the updated contract had been sent to him and that because he didn’t object to it, he had “constructively approved” it.

“You constructively approved it. You were on the email. You didn't object to it. You didn't say anything,” Sears said.

But Lewis was not swayed, saying later in an interview, “I don't know how presentable that is as a legal argument.”

Sears also said it was ultimately on the board officers to sign off on the contract — not the superintendent.

“You voted through majority to hire Mr. Gilbert as general counsel,” she said. “Pursuant to your bylaws, it's the officers that have the authority to sign a contract.”

While an initial contract was presented at the July meeting, an updated contract has not been included in public materials from the board. Sears said during the meeting that they updated the original contract because she looked at it and there were “tons of clerical errors” and provisions that were not necessary. The Nevada Independent has filed a records request seeking the contract and communications related to Gilbert’s hiring.

With a board that remains divided over policy and its own rules, members of the public have complained that the board is focused on politics, rather than students or parents. Lewis agreed.

“I want to get us talking about kids, talking about things we can do to help them,” Lewis said. “I just don’t feel like that’s where we're at right now.”

— This story is used with permission of The Nevada Independent. Go here for updates to this and other Nevada Independent stories.