Direction to Southern Nevada District Board of Health Attorney Selection Committee: Tasks, Timeline and Authority to Act without Further Board Action (Committee Chair Giunchigliani and Members Christensen, Hardy, Kirk, Strickland and Weekly)
Vice Chair Kirk: I think this is fairly important to us, and the reason we want to talk about this to the full Board is we won’t meet again until after Mr. Minagil’s gone. Our next one is the 29th of September… Something like that…
Mr. Minagil: 25th of September is the next Board meeting.
Vice Chair Kirk: And when is your last day?
Mr. Minagil: My last day is September 19th. I have extended my time.
Vice Chair Kirk: So what we’d like to do is and I think the discussion that at least I’ve had with Dr. Sands, is then to talk about this today and to allow the sub-committee the authority to go ahead and make the recommendation to Dr. Sands. Of course it would ultimately be your decision, Dr. Sands, as to who gets hired, but if there’s a committee to have, to meet and discuss the attorney than that’s what, if there’s one selected, if the whole Board wants to act on it, we’re not going to meet until Mr. Minagil’s gone, so that’s going to leave a hole, if you will. So we’d like to act, and allow the committee to help with the selection before the next meeting. So that’s what we’d like to do and so we throw that out for discussion with other members of the Board.
Member Hardy: Mr. Chair.
Vice Chair Kirk: Dr. Hardy.
Member Hardy: I’m following up on your comment about it’s ultimately Dr. Sands’ ability to hire. I know we’ve had, I’ll call it quasi-discussion, about this issue now in an open meeting to talk about this. The attorney, as I understand it, would be hired by the Board and I think we need to make sure we clarify who the attorney works for and who the attorney represents and who the attorney protects as in vis-à-vis the Board members, the Board and the Chief Health Officer. If that discussion needs to be had, then it’s included in that agenda item.
Vice Chair Kirk: I think that’s important because, I know at the City of Henderson, the City Attorney works for the members of the City Council – it does not work for the Manager. I think that’s the way it is in the City of Las Vegas. Is that the way it is in Boulder City and other? I mean, how does the County work?
Member Weekly: Same.
Vice Chair Kirk: The same? So that would require, I think, a by-law change, wouldn’t it, and I understand it that would require some legislative action. Now Mr. Minagil, can we get your perspective and input on how you think the best, and is it most effective for you to work for the Chief Health Officer, or would it be more effective to have the attorney work for the members of the Board?
Mr. Minagil: I think the current arrangement is sufficient and adequately protects all the interests of the District.
Vice Chair Kirk: OK.
Mr. Minagil: I see as I represent the District. And the District is comprised of the Board of Health, and the district is comprised of the management who runs the District. I don’t represent Dr. Sands – I represent the District of which Dr. Sands is the Chief Health Officer and in essence the executive manager. As part of that, I also represent the Board as well. So I’m here to represent you, as a body, I’m here representing the District, and working with Dr. Sands who is the Chief Health Officer of the District. I don’t see any problem with that arrangement, with that summary of duties and obligations.
Member Eliason: Mr. Minagil, I guess my question would be then if we wanted to terminate you, is it Dr. Sands or the Board?
Mr. Minagil: It’s Dr. Sands – the position is an employee position, it’s not a contract position as previously. This is an employee classified position.
Dr. Sands: Right. And certainly both in the hiring and termination, addressing issues with the attorney, since the attorney does represent the Board as well as management of the District, I would want, in this case, also to have input from the Board before taking any action like that.
Vice Chair Kirk: I think the…
Member Eliason: Guess…I’m sorry…
Vice Chair Kirk: Go ahead.
Member Eliason: I guess my concern, and I’ve been through it, and that was with the City Manager that was difficult to contend with. And if you’re answering and the Board has no authority to remove or replace the City Attorney, she or he is responsible to the City Manager and I think we have to separate those two so we get a clear vision of help when we need it and getting everything out in the open and truthful and that kind of stuff. I’m not saying anybody would not anything other than that but I found that a great way to handle it and our City wouldn’t have had a difficult City Manager because then we’re getting information that we probably wouldn’t get otherwise.
Member Jones: I think, if my understanding, is that the attorney’s work, that you through discussion before, tends to be 90% dealing with the day-to-day operation of the District and departments as opposed to work that needs Board action or executive action. And so given that, it seems like there needs to be enough wherewithal for the attorney to really be dealing with District work as opposed to only being concerned with about Board work.
Vice Chair Kirk: And my comment on that, and we’ve never had an issue, there’s never been a problem, the only question I have is who’s the client? In the City of Henderson, there’s no question that we’re the client – the City Attorney represents us and protects us and gives us legal advice on certain issues. And in a case where the attorney works for the Chief Health Officer, or in essence the City Manager, and doesn’t work for the Board, there’s never been a case where there’s been any issue about that causing problems. I just wonder in the future if that might be the case. I know that there have been some quasi-public agencies where the manager has been giving the attorney direction to consult the Board members and tell the Board members certain things and I think sometimes that could be problematic. Because we want to make sure that we’re represented. I don’t think that would ever be a problem at the health district, but I just throw that out to the members of the Board – I think we ought to talk about it a little bit and see how comfortable everyone is about having the lawyer work for Dr. Sands as opposed to having the attorney work for us directly. So, I feel, my personal feeling is, that the attorney should work for us, but that’s not how it’s been and we’ve not had any trouble with that, but is there any comment or does anybody feel differently?
Member Christensen: What about just a statement or a memorandum of understanding as a condition of employment, pretty much exactly what Mr. Minagil had said, who his client is, what his priorities are and what his oaths are and that his a condition of his employment. That he understands that covers us, in writing, as to exactly who your attorney-client privilege is, I would think.
Mr. Minagil: I think the, excuse me, I think the current job description for the position specifies, you know, that I represent the district and that includes providing direction and guidance to the Board.
Vice Chair Kirk: OK.
Mr. Minagil: It also provides direction and guidance to management of the district, as well.
Vice Chair Kirk: Has there ever been an instance when the management, it’s been a legal issue, in which the management has been in opposition to the Board and has put the attorney in a situation where he is not quite sure who his client is.
Mr. Minagil: I haven’t had that in the eight years that I’ve represented the district.
Vice Chair Kirk: OK.
Mr. Minagil: I’ve never had that, never been close to that.
Vice Chair Kirk: Dr. Hardy?
Member Hardy: I think this came up when we starting looking at a deputy or an assistant attorney. Who does the assistant attorney work for? Does the assistant attorney work for the attorney, who works for the district, or does the assistant attorney also work for the Board, who thinks that the attorney works for them? And so I think for lack of anything else, we need to clarify not only who the attorney works for, but make sure that in that net we also capture the temporary or the acting or the substitute attorney. But let me just throw this question out, when I look at how we work in a city or in a county with a county manager model or a city manager model, as a city councilman, I am in a position where I have to call somebody to get advice, for instance, the city attorney, whereas in the current structure where it may not be fully understood as a city councilman if I say to an employee I want you to do this and want you do that, I may be overstepping my bounds. So if I have, so the simple question would be who do I have to get permission from to ask staff a question or give direction in order to avoid the nitty-gritty problems of directing somebody that I don’t have jurisdiction over and this came about when we started talking about the issues of who somebody’s doing something to somebody and who’s agenda is it that we’re putting on the agenda and do we have a right to reach down into the health district and deal with personnel matters in the county managers/city manager concept, or in this case the CEO of the health district. That’s a long-winded way of saying I think we have some issues and some problems that we have to address and clarify, but the most overriding thing is we need to do something now. I don’t think we have the ability to wait for a bylaws change to recognize we need to replace somebody who’s retiring. And for the record, we need to put some things on the record so that’s it’s clear what our understanding is so at least we have what I could call legislative intent where we can go forward with what we do, whether that’s writing it down in the memorandum of understanding. But I think we have to make sure that we are right and we understanding each other, where we’re coming from. Thank you.
Vice Chair Kirk: Very good. Thank you very much.
Member Strickland: Mr. Kirk? I would think that with respect to the attorney that the Board would be hiring the attorney and scope of employment of their attorney would already be through an MOU or some other avenue would be to represent the Board, would be represent the district in the manner that Mr. Minagil has been doing. And that the associate attorney that we’ve talked about would be hired by the Board, but would be managed or supervised by the attorney, who is going to be a lead attorney that we’re talking about hiring. So that the Board has that person under their employ, but the direction and management of that person would be by the lead attorney. I know in Boulder City we, as council members, direct the city attorney to do things; the city attorney represents us, he represents the city which appears to be what Vice Chair Kirk was talking about. And as council members, our actions as to employees are restricted by the terms of our charter and so we must comply with that. But I would think that in order to accomplish what we want, we want to make sure that the client’s scope of the services is that the attorney we’re hiring is broad enough to encompass everything that we want to do, we don’t want to make it so restrictive; but we also want to have the opportunity to feel that we as a Board understand that we have this attorney/client relationship with the lead attorney and that we have the ability to terminate or to direct that attorney’s services that are being provided to the Board. So I think it is an important issue, I think it could be handled merely by the retention of the attorney by the Board and by the expansion or delegation of the scope of the services that the attorney is providing so it is to the Board but also to the district, such as you’re doing right now.
Vice Chair Kirk: Thank you, that’s good. And I think those are items we probably ought to discuss and Dr. Hardy makes a very good point – we certainly don’t have time to make a bylaws change at this point. What we’re talking about this morning is just giving direction to the subcommittee and whether or not the Board wants to give the authority essentially to the subcommittee to make a recommendation to Dr. Sands to move forward and hire one of these attorneys that we have resumes for.
Member Eliason: Do we need to do that in a form of a motion?
Vice Chair Kirk: I think we do.
Mr. Minagil: Yes. The idea was that the Board may want to have the committee have the authority to make a recommendation to Dr. Sands without coming back here on the September 25 meeting to have the full Board vote on whatever the recommendation the committee wanted…
Vice Chair Kirk: Or have a special meeting, which we won’t do.
Mr. Minagil: And we can specify by memorandum of understanding, specifying in greater detail the duties of the attorney. I agree with you, the associate attorney has the same obligation as the lead attorney does, represents the district, represents the Board, and would merely be under the supervision of the general counsel.
Member Mattocks: But then in that MOU as well we would need to specify whose responsibility it is to do that attorney’s evaluation. Will it be the Board, will it be a joint thing, if 90% of, you know, the work they do is actually for the district, we would definitely need to involve Dr. Sands and whoever he or she works for in the district and members of the Board to evaluate him.
Vice Chair Kirk: Dr. Hardy?
Member Hardy: The pain in the neck Board member. If we are assigning six…
Member Eliason: We know a good doctor.
Member Hardy: If we’re assigning six members to the subcommittee, those six members would become a quorum for this body today.
Vice Chair Kirk: Is a quorum six?
Mr. Minagil: A quorum for this body is seven.
Vice Chair Kirk: Seven.
Member Hardy: Let me put it this way. We have ten people here, six of us represent a quorum that could make a decision that changes the world of the Southern Nevada Health District, that’s called a quorum. So if we got everybody here, that’s called not a quorum, but it is a quorum so that brings us back to my nitty-gritty question, do we really want to worry about having six people on a Board, on a subcommittee that could be construed as a committee, and I’m out of my legal depths right now, and I’m not anxious to give fodder for a issue of a subcommittee being enough to be the whole committee and getting into a legal mess over that. So that’s my question for legal.
Vice Chair Kirk: I can solve that by not being a member of this…
Laughter
Vice Chair Kirk: I’m happy to withdraw.
Member Hardy: Wait, let me say this...
Vice Chair Kirk: I beat you to it.
Member Hardy: Let me point this out. I’m going somewhere with this, Mr. Chair. If we look at that committee as it’s formally, as I understand it we’re meeting after this meeting, is that right?
Dr. Sands: That’s correct.
Member Hardy: So if we meet after this meeting, that takes off a person, meaning that the chair of the Board, who is not here, unless there’s an appointment. Is she going to be on the phone? Shucks. This was going to be so easy. But I throw that out not to be contrarian, but I think it’s probably wise that we have that answered before we step into something and get into trouble. Thank you.
Vice Chair Kirk: Mr. Minagil, do you have any comments?
Mr. Minagil: I’m not sure I know what the question is.
Laughter
Mr. Minagil: No disrespect, Dr. Hardy.
Member Hardy: And so I’m not sure what the answer is to the non-question is either. If we have, I know there’s a problem with sub-committees and if you have a sub-committee that has more that would make up a majority of the committee, then you’re, I don’t know if that’s addressed anywhere.
Member Eliason: Are you saying, Dr. Hardy, that when those six come back to the Board they’d be able to control the Board when it comes back for a vote.
Member Hardy: Right.
Vice Chair Kirk: But they would make a quorum, and I think if there’s any question on that then maybe five members as a sub-committee might, that’s certainly less than a quorum, less than the number of people we have here to make up a quorum and so maybe just having a five-member committee would suffice. I understand the issue, it has to do with what constitutes a quorum. Is it the majority of the members present or is the majority of the members of the Board. My understanding was, it always had to be a majority of the members of the Board. So if we have a thirteen-member committee, a majority would be seven – doesn’t matter how many people come to the meeting, you still got the seven votes, that’s my understanding. I may be wrong, but that’s the way I’ve always understood it.
Mr. Minagil: Right. This is a thirteen-member Board – you must have seven members to have a quorum and therefore to take action.
Vice Chair Kirk: Right.
Mr. Minagil: This Board has established a committee…
Member Eliason: Of six.
Mr. Minagil: …six people on that committee. Of those six members, we need four of them today to be here for the subsequent meeting to take action.
Member Strickland: Right.
Vice Chair Kirk: So you would need me?
Mr. Minagil: Six members of the committee. Of those six, we need four present to take action.
Vice Chair Kirk: I understand.
Mr. Minagil: So that’s the only issue.
Member Strickland: So there’s not a problem.
Mr. Minagil: No.
Vice Chair Kirk: So, OK.
Member Hardy: So, Mr. Chair. So in our bylaws it’s a thirteen-member Board, seven is quorum, period. No matter who’s present.
Mr. Minagil: Seven members of the thirteen need to be present.
Member Hardy: Seven have to vote “yes” or “no” in order to make a determination of what goes forward.
Mr. Minagil: No. Seven members have to be present to have a meeting, to take action.
Member Hardy: So then four would be a quorum.
Mr. Minagil: No, four is the majority…
Member Hardy: A majority of the quorum.
Mr. Minagil: Yes.
Member Hardy: I have the same problem.
Member Crowley: Why is there a problem with having a majority of the quorum present?
Member Hardy: Because you’ve basically taken out people in this Board who no longer are participating in the conversation and you’ve de facto made a quorum out of six people.
Member Weekly: Isn’t that the purpose of having sub-committees?
Member Jones: The purpose of this committee is to give advice…
Member Weekly: …to make recommendation.
Member Jones: …not to give…
Member Eliason: Well, we was going to give them authority to take action.
Member Christensen: Yeah, that’s what are discussion was about, is to delineate the authority for this sub-committee to take action as time is of the essence and we don’t want a lapse in representation.
Vice Chair Kirk: You know, I think it’s important just to remember that this sub-committee, or even us as a Board, we only recommend. We’re not hiring this lawyer – you are, Dr. Sands. We’re not…we’re going to simply recommend. And so, it’s almost like we’re just giving advice, this is kind of who we think, and we’re not really taking effective action as to who you’re going to hire. You can totally disregard that we say as a recommending body on this item. So I don’t see that we’re taking definitive action as we take when we make a vote. This is simply a recommendation. So while I appreciate Dr. Hardy’s position, and I understand the fact that we want to be very careful when it comes to Open Meeting, I don’t think we’re even close to violating it because we need seven members, if we had a sub-committee of seven members, and all seven members showed up, then my understanding is we’d have a problem. But we have a sub-committee of six and by the time we get to the end of this meeting, it’s going to be five. I don’t think we’re going to have a problem. Maybe four.
Laughter
Mr. Minagil: Mr. Chair, the only issue, quite frankly, is whether the recommendation that the committee makes, do you want Dr. Sands to act on that recommendation without waiting for the full Board to vote on the committee’s recommendation?
Vice Chair Kirk: That’s the issue…
Mr. Minagil: That’s the issue…
Vice Chair Kirk: …that we’re talking about.
Mr. Minagil: And so after today, we’re going to, after this meeting, you’re going to have a committee meeting. The committee may come to a consensus that they would recommend Dr. Sands to take action with Candidate A or with Candidate B…
Vice Chair Kirk: OK.
Mr. Minagil: Do you want Dr. Sands to act on that after today or do you want your recommendation to come back and be voted on by the full Board? That’s the issue.
Member Strickland: And I’ll just throw out something. I cannot be a part of this and if it’s appropriate hand my notes to somebody else. I kind of got volunteered to do this anyway.
Member Weekly: Down to three.
Member Barlow: I have a question.
Vice Chair Kirk: Yes, Mr. Barlow.
Member Barlow: If in fact, and I don’t mean to digress, by any means, but early on the question came whether or not this Board was going to hire the attorney or if Dr. Sands would hire the attorney and then the question becomes who does the attorney work for. So if in fact the sub-committee is directing Dr. Sands to move forward with the action to hire the attorney, then the question then becomes who does the attorney work for, because if in fact the attorney works for the Board, then I believe that the Board should be the one to vote as to Candidate A, Candidate B. So once again, not to digress, but I need to basically put that back on the table for us to think about the decision as to the sub-committee moving forward with the recommendation to Dr. Sands’ hiring that individual, then that individual basically saying well I was hired by Dr. Sands, I wasn’t hired by the Board.
Vice Chair Kirk: I think until the bylaws are changed, the way it is, is the lawyer will work for Dr. Sands. Now we may want to change that sometime in the future, but as we are today, this decision is made by the Chief Health Officer and not by the Board. So the lawyer does not work for us.
Mr. Minagil: The lawyer represents the District, and included in the District is the Board of Health. I take direction from the Board.
Vice Chair Kirk: OK.
Mr. Minagil: I take direction from Dr. Sands. When any of you have a question, you call me and I provide guidance…
Member Eliason: Let me butt in…
Mr. Minagil: We’re all on a team. I represent the team.
Member Barlow: And by no means, no means am I not saying that the attorney, yourself, Mr. Minagil, don’t represent the team, but I’m just speaking on behalf of the technical conversation that we’re having right now when we get down to these decisions. So, I understand that you represent the team but looking at it, for example from the City of Las Vegas side or the, I’ll just speak on the city side, our Council hires our City Attorney, not the City Manager. Both of them basically report to us, so I’m not saying that’s the process in which we’re trying to move in here, but I want to basically at least have that on the table for us to look at as an option.
Member Eliason: Let me just muddy the water a little bit further. Going back to Dr. Hardy’s thoughts, if the committee recommends A, Dr. Sands hires B, then the majority of the committee controls the Board and then we’re back to looking at Dr. Sands’ evaluation and production. Do we want to put him in that position?
Vice Chair Kirk: All of us can second guess anybody Dr. Sands is going to hire. I mean we can do that today. I don’t look at it like that; I look at our responsibility as members of this Board as simply making a recommendation and Dr. Sands you decide based on what you know, you may know a lot more than we do about who would best fit with the District. And so, I’m, based on the information and counsel we get from our lawyer this morning, I’m completely comfortable with the fact that the sub-committee can meet and the action that we’re asking for this morning can be done without any problem.
Member Barlow: I second that motion.
Vice Chair Kirk: So there’s a motion to move forward as recommended by staff; there’s second. Is there any discussion? All those in favor please signify by saying “aye.”
Board members in unison: Aye.
Vice Chair Kirk: Opposed? That motion carries. Thank you very much. The next item in public comment…
A motion was made by Vice Chair Kirk to afford authority to the sub-committee without further Board action; seconded by Member Barlow and was unanimously approved.
Member Hardy: Mr. Chair?
Vice Chair Kirk: Dr. Hardy?
Member Hardy: I’m a little slow today. I apologize. There was a comment, and I think I need direction if we’re all going to be on the sub-committee. There was a comment made prior about making sure that we consider things like gender and ethnicity in this discussion and I am uncomfortable in discriminating against anybody on any matter and I think that would be important for us to have counsel tell us what is appropriate to consider and inappropriate to consider in our deliberations on that particular item – we can have that take place in the sub-committee I suspect, but I do…
Member Strickland: I agree.
Member Hardy: …I do have a problem with that comment that was made.
Vice Chair Kirk: Very good.
Member Hardy: Thank you.
