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Traci Davis Lawsuit Against Washoe County School District Filed in District Court

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The promised lawsuit by past Superintendent Traci Davis against the Washoe County School District was filed today in district court. Attorney Bill Peterson filed the suit on Davis' behalf. The suit alleges misconduct by school board trustees and school district administrators.

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Traci Davis Lawsuit Against Washoe County School District Filed in District Court

  1. 1. 1 2 1 J 4 5 6 7 8 9 10 11 T2 13 t4 15 r<, I c)I Hl aÕ > lHg:x' j cØ ã6 ,z igîli:i I Jr Ê 9l vå õt = l6 I7 18 t9 20 2l 22 23 24 25 26 27 28 TRACI DAVIS, an individual Plaintiff, $1425 William E. Peterson (Nevada Bar #1528) SNELL&WILMERrrp 50 West Liberty Street, Suite 510 Reno, Nevada 89501 Telephone: 77 5-785-5440 Facsimile: 77 5-785-5441 Email : wpeterson@swlaw.com Attorneys þr P laintiff Traci Davis IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE Case No. Dept. No. vs. WASHOE COTINTY SCHOOL DISTRICT; WASHOE COTINTY SCHOOL DISTzuCT BOARD OF TRUSTEES; KATY SIMON HOLLAND, an individual; DOES I-V, individuals, Defendants COMPLAINT Traci Davis ("Superintendent Davis") complains of defendants, and alleges as follows: 1. Superintendent Davis is an individual who was employed by the defendant Washoe County School District ("District") as its Superintendent under an Employment Agreement ("Agreement") between Superintendent Davis and the defendant Washoe County School District Board of Trustees ("Board"). A true and correct copy of the Agreement is attached as Exhibit 1 and incorporated by reference. 2. The defendant District is a political subdivision of the State of Nevada created and existing under NRS 386.010 and may sue and be sued under NRS 386.010(3). 3. The defendant Board is a body corporate created and existing under NRS 386.1 l0 F I L E D Electronically CV19-01713 2019-08-30 02:52:21 PM Jacqueline Bryant Clerk of the Court Transaction # 7460792 : yviloria
  2. 2. l; I aÕ I n?äç d ir x*î fo¡ãF I ãË:Ê I ",iú l> li c) H ,z () Ê U) 1 2 1 J 4 5 6 7 8 9 10 11 T2 13 t4 15 t6 T7 18 T9 20 2I 22 23 24 25 26 27 28 consisting of seven elected trustees under and pursuant to NRS 386.120. The District acts through its Board. At all times relevant to this Complaint, Board trustees were the defendant Katy Simon Holland, Malena Raymond, Ellen Minetto, Scott Kelley, Andrew Caudill, Angela Taylor, and Jacqueline Calvert. 4. The defendant Katy Simon Holland is, and at all relevant times was, an elected Board trustee and Board President. 5. DOES I-V are employees of the District or members of the Board whose true names and capacities are not presently known to Superintendent Davis so they are named and sued fictitiously in this Complaint. Superintendent Davis will seek leave to amend this Complaint to allege their true names and capacities when they become known. On information and belief, Superintendent Davis alleges that each of the fictitiously named defendants is responsible in some manner for the wrongful actions alleged in this Complaint and for the resulting injury and damage to Superintendent Davis. DOES I-V are sued in both their individual and official capacities. 6. Venue is proper in the Second Judicial District Court, Washoe County, under NRS 13.010 et seq. because defendants are located in Washoe County the acts and omissions set forth below all occurred in Washoe County, and the Agreement between Superintendent Davis and the Board provides exclusively for venue in this court. Exhibit 1, paras. I}(a);17. 7. Superintendent Davis was initially employed by the District in September 2012 as Deputy Superintendent. She served in that capacity until October 2014 when the Board appointed her Interim Superintendent. On July 10, 2015, the Board appointed her Superintendent, effective immediately. ln December 2015, the Board and Superintendent Davis entered into an employment agreement, retroactively effective to July 10,2015. That agreement expired on June 30,2018. On June 12,2018, the Board approved the Agreement attached as Exhibit 1. 8. The Agreement was effective July 1, 2018 and had a term of two years, until June 30,2020, with an automatic extension to a third year, until June 30, 2021, if Superintendent Davis received at least a "meets expectations" evaluation of her overall performance for the 2018-2019 school year. Exhibit 1, p. 3,para.4. ., -L-
  3. 3. li, I c)I?1 I I t< I Þô -l | øØ! > IHg;*' J rø ;6 ,z i3,,2i, - I <fóF - lrJc C.) I v,,i õr : 1 2 J 4 5 6 7 I 9 10 11 t2 13 t4 15 t6 T7 18 t9 20 2I 22 23 24 25 26 27 28 9. Under Paragraph 8 of the Agreement, Superintendent Davis and the Board met quarterly to discuss progress toward annual performance goals adopted by the Board for the Superintendent with the Superintendent's annual performance evaluation to take place between November I and December 31 of each year. 10. Davis had obtained good or satisfactory performance reviews for the entire tenure of her employment as Superintendent beginning in July 2015. By June 2019, Superintendent Davis had satisfied all the performance metrics for: (1) earning a performance bonus for the 2019 school year, and (2) an additional year of employment as Superintendent through J:urrre 30,2021 per the Agreement. 11. On June 13,2019, Superintendent Davis attended the Incline High School graduation. She stayed after graduation at the request of Board President Holland to discuss her upcoming evaluation and the District's Strategic Plan. Instead, Board President Holland served Superintendent Davis with formal Notice of a Special Board hearing to be held eight (8) days later on June 21, 2019, to "consider your [Superintendent Davis] employment agreement and your character, alleged misconduct and/or professional competence." The June 13 Notice also advised Superintendent Davis that the Board could take action against her including termination of the Agreement and her employment with the District. 12. When Superintendent Davis asked why the pretense about discussing her upcoming evaluation and the Strategic Plan, Board President Holland responded that she was following the direction of the District General Counsel. 13. The pretext for the June 13 "Notice" and the June 2l Special Board Meeting was District General Counsel's receipt of documents produced in discovery in the District's pending litigation with a former employee who had been fired by Superintendent Davis. The discovery documents consisted of texts and emails dating primarily from 2017 between the terminated employee and other District employees, some of which allegedly concerned the District's 2017 confidential worþlace investigation of the terminated employee and another District employee. 14. A copy of the discovery was served on Superintendent Davis along with the June 13 Notice. None of the emails or texts in the discovery documents either came from or were -3-
  4. 4. 1 2 4 5 6 7 I 9 10 11 t2 13 t4 15 C)I dl.g-l-¡ I aÕ -i I ,¡Ø¡ > IHgi$' J eØ ã6 ¿ î3e¿Ë - I (f;È ol zå. t1 l õt z I6 t7 18 I9 20 2T 22 23 24 25 26 27 28 addressed to Superintendent Davis. None of the emails or texts states, or indicates in any way, that confidential information came from Superintendent Davis or identifies her as a source. 15. The June 13 Notice included 17 separate charges against Superintendent Davis running the gamut from failing to keep the Board informed to failing to provide a safe learning environment to inadequate performance, all more appropriately included as part of the comprehensive annual performance evaluation process provided for by the Agreement. The only factual allegations made in the June 13 Notice as the basis for all 17 charges were that David Lasic, one of the participants in the texts and emails, had "received or accessed" confidential information from meetings which Superintendent Davis attended, documents in Superintendent Davis'possession, or emails on which Superintendent Davis was copied. 16. There is no claim in the June 13 Notice that Superintendent Davis was the only person present at any such meetings, the only person in possession of such documents, or the only person included on the emails. There is also no basis to believe that only those persons attending certain meetings or possessing certain documents or included on particular emails had knowledge of confidential information. A workplace investigation involves numbers of employees who naturally talk with each other. 17. The District and the Board had been made aware more than one year prior to the June 13 Notice to Superintendent Davis that leaks of confidential information had occurred and were occutring in connection with the 2017 investigation. At that time, the District considered an additional investigation into the leaks, but, as part of a settlement with one of the District employees already being investigated, agreed to, and did, close all current and currently contemplated investigations. 18. After its receipt of the discovery documents in2019, the District did no further investigation into the source of the allegedly leaked confidential information. No one from the District even asked Mr. Lasic where or how he obtained the confidential information. Instead, the Board accused Superintendent Davis, scheduled a meeting with her on the shortest notice allowed by law, and advised Superintendent Davis that she would have all of twenty (20) minutes to "respond to the information presented, present written evidence, provide testimony and present -4-
  5. 5. I 2 J 4 5 6 7 8 9 10 11 t2 I3 t4 15 r!- I niäç À: e:.g{ì J eØ ã6jo¡àF I ì¡:ÊI r¡ c l#to li O ¿ ç ,z c) d. U) I6 T7 18 t9 20 2t 22 23 24 25 26 27 28 specific witnesses" as to all 17 charges. 19. Under the Agreement, the employment of Superintendent Davis with the District could be terminated by the Board either "for cause" or "without cause.r' If she was terminated "without cause," she was entitled to 90 days' notice and severance pay equal to "one year of Base Salary" in effect as of her last day of employment. If she was terminated "for cause," she would only be entitled to be paid through her last day of employment plus accrued vacation and sick leave. 20. As described by the Board, the allegations in the June 13 Notice to Superintendent Davis fall under paragraph (2) of the definition of "cause" in the Agreement which provides as follows: (2) any act of dishonesty, fraud, embezzlement, theft, unethical conduct, or for gross negligence in the performance of her duties and responsibilities under this Agreement; 2I. Misrepresenting the discovery documents and creating a false sense of urgency about 2017 information leaks that the Board had previously agreed not to further investigate, the June 13 Notice put the Board and District in position to circumvent the Agreement's provisions both for annual performance evaluations and severance. Aware that it was unlikely that Superintendent Davis could be terminated for cause based on her annual performance evaluation and unwilling to approve the severance obligation of a termination without cause, Board President Holland and DOES I-V orchestrated this sham hearing process to force Superintendent Davis out without any severance pay. 22. Superintendent Davis sought additional time. The District agreed to delay the hearing subject to the condition imposed by Board President Holland that Superintendent Davis go on leave of absence until the hearing was completed. Superintendent Davis agreed. Board President Holland subsequently denied her role in the leave of absence and misrepresented to the media and the public that the leave of absence was a voluntary decision by Superintendent Davis. 23. Ordinarily, a District employee on leave of absence has continued access to his/her District email accounts without intenuption. When Superintendent Davis went on leave of absence at Board President Holland's insistence, however, access to her District email accounts -5-
  6. 6. o t;t"l :- I aa I n?äç l.;s"xI rØ ;h Jo¡lP I ?å?ÊI r¡ d Ite l> li 0) tsH Ë ,z (J tU) I 2 J 4 5 6 7 8 9 10 11 t2 13 I4 15 t6 I7 l8 t9 20 2l 22 23 24 25 26 27 28 was immediately suspended. 24. When Board President Holland continued to represent to the public that the leave of absence was voluntary, Superintendent Davis advised the District that she would return to her office. The District Offrces were abruptly and unexpectedly closed and District employees were paid not to work in order to deny Superintendent Davis access to her office. 25. On June 16,2019, the District, without the approval of the Board, retained a public relations firm in connection with the allegations against Superintendent Davis. A public relations campai gn against Superintendent Davis fo llowed. 26. In multiple public appearances and public statements prior to the July I, 2019 hearing, Board President Holland told the public through print and television that: (1) "there is conclusive and substantial evidence that Davis is to blame for leaking confïdential information," (2) "Davis is guilty of breaching her contract," (3) "Davis should have known about the leaks coming from David Lasic," (4) "the conduct of Davis was egregious and that immediate action had to be taken without an investígation," (5) "the evidence of Davis' misconduct was substantial and it was easy to come to the conclusion that egregious conduct occurred," and (6) "abundant evidence exists of substantial misconduct and anyone else doing this would be held accountable." Like the statement that Superintendent Davis took a "voluntary" leave of absence, none of those other statements from Board President Holland were true or had any factual basis. 27. The Board scheduled its Special Meeting to "consider the character, alleged misconduct andlor professional competence" of Superintendent Davis for July l,2019. Prior to the meeting, Superintendent Davis provided a written response, denying leaking any confidential information, pointing out the complete absence of any evidence to the contrary, and suggesting questions for the Board to ask before any fair or just decision could be made. A true and correct copy of the response (without attachments) is attached hereto as Exhibit 2 and a true and correct copy of the list of questions is attached as Exhibit 3. 28. At the commencement of the hearing, Board President Holland stated that while due process was not required under the Agreement, she and the Board had decided and were going to provide due process. Board President Holland again misstated or misrepresented the -6-
  7. 7. 1 2 J 4 5 6 7 8 9 10 11 t2 13 I4 15 li, 9 OI/l I .r lYl .ô- > IHs:$' j 4Ø ãh d i 322i, - ì<f .rS !i lJ¡c Ét # U)t a T6 t7 18 t9 20 2t 22 23 24 25 26 27 28 facts. The Agreement acknowledges that the procedural protections provided in NRS Chapter 391 for licensed educational personnel did not apply to the superintendent position, including Superintendent Davis, notwithstanding that she was coincidentally a licensed administrator. Licensing was not a prerequisite for the position of superintendent. Superintendent Davis did not waive, in the Agreement or otherwise, any of the applicable procedural protections provided to public employees by state and federal laws, including the Nevada and U.S. Constitutions. 29. Board President Holland also misstated the Board's decision to "provide due process." Since terminating the Agreement and the employment of Superintendent Davis with the District required a meeting, the Open Meeting Law applied. Under the language of both the Open Meeting Law and the June 13 Notice to Superintendent Davis, the subject of a hearing on "character, alleged misconduct andlor professional competence" must be allowed "to present written evidence, provide testimony and present witnesses." All the District/Board/Holland did was impose the 20-minute limitation, preclude any opportunity for Superintendent Davis to cross- examine any witnesses against her, reverse the ordinary order and require Superintendent Davis to make her presentation first with no opportunity for rebuttal, deny Superintendent Davis access to documents provided the Board, and declare that "the Board would not be answering questions or getting into any debate or dialogue," denying, rather than providing, due process. 30. Superintendent Davis also asked Board President Holland to recuse herself from the hearing on the grounds of bias, prejudice and lack of impartiality based on the Board President's public statements which clearly demonstrated that she had already predetermined the matter. Board President Holland refused. 3 1. Just before the July t hearing commenced, District Staff provided the Board with a "Fact Sheet" riddled with mistakes of fact along with a hundred or more pages of material under the labels "attorney-client privilege, attorney work product, andlor deliberative process privilege" purportedly supporting the "Fact Sheet." Copies of this additional material were not provided to Superintendent Davis or to the public, notwithstanding the requirements of the Open Meeting Law, precluding Superintendent Davis from even addressing the information, let alone contradicting or countering it. -7 -
  8. 8. 1 2 a J 4 5 6 7 8 9 10 11 T2 13 T4 15 r{, 9 c)I Êl .y-|rI )Õ -i I øø¡ > lHsi$' J rØ ãh ¿ i;iiË = ljrS* 9l 7ë, lil > UDI Z I6 T7 18 I9 20 2l 22 23 24 25 26 27 28 32. There was no third party determination that the secret information provided to the Board by District Counsel actually satisfied the self-identified and selÊserving "privilege" labels. In any event, attorney-client privilege, attorney work product, and deliberative process privilege are defensive doctrines in the law available to shield certain information from compelled disclosure; those doctrines are waived when, as here, information allegedly otherwise privileged is used affrrmatively by the person or entity holding the privilege. 33. Superintendent Davis made her presentation, denying any involvement in leaking confidential information, and asking the Board to investigate before making any decision. The Board asked Superintendent Davis no questions at all. 34. Even a rudimentary investigation would have established that Superintendent Davis did not provide any information to District employee Lasic, that the "preliminary report" of the worþlace investigation that was the primary focus of the "leaking" allegations against Superintendent Davis was not, in fact, leaked or otherwise provided to Mr. Lasic at all, and that neither Mr. Lasic nor the terminated employee suing the District ever possessed a copy of the preliminary report. 35. The District called no witnesses and District Counsel made no oral presentation. The "Fact Sheet" was the District's argument against Davis, provided to the Board with the secret documents, in lieu of witnesses or any oral presentation to preclude any questions from the Board. 36, No member of the Board called on District Counsel or any member of the Staff to answer any of the questions provided by Superintendent Davis. No member of the Board asked what possible incentive Superintendent Davis could have to leak information to support an employee that she had terminated. No member of the Board asked any questions at all during the hearing or made any inquiry whatsoever regarding any of the charges or allegations against Superintendent Davis. The goal was to terminate Superintendent Davis without regard to the facts, the legal rights of Superintendent Davis or the law. 37. At the July I hearing, no evidence was provided that Superintendent Davis was the source of any confidential information allegedly possessed by or passed on by employee Lasic. Not a single email, text message, or any correspondence from or to Davis was presented to the -8-
  9. 9. l-¡' I 0)I dl .s- ¡i I )o * I *iâ- > lgg;$' J rØ ;6 ,á ¡ 3"22i, - I ffdÈ (-) | 2,9 è. I UDI L 1 2 J 4 5 6 7 I 9 10 11 I2 13 T4 15 t6 t7 18 l9 20 2t 22 23 24 25 26 27 28 Board, nor was the Board presented with a single piece of evidence stating or identifying Davis as being the source of any leaked information. Nor was the Board provided with any information, as to the method or manner by which employee Lasic allegedly came into possession of such confidential information. The complete and sole basis of the Board's decision to terminate Superintendent Davis "for cause" was that her subordinate, employee Lasic, allegedly possessed confidential information, and allegedly passed it on to Jenny Ricci. 38. At the close of the July t hearing, notwithstanding the lack of evidence, the Board came to its predetermined conclusion, voting to terminate the Agreement for cause and end the employment of Superintendent Davis with the District. 39. Superintendent Davis was wrongfully terminated by the Board in violation of the Agreement and the rights of Superintendent Davis under state and federal law, including the Nevada and U.S. Constitutions. 40. The Agreement expressly provides that Davis' "sole and exclusive remedy to challenge her termination for Cause shall be through a private action timely commenced by her in the Second Judicial District Court for the State of Nevada in Washoe County, to be heard and determined by the Court without a jury." Under the Agreement, the court independently decides whether the facts presented constituted cause to terminate Davis. 4I. Davis's right to continued employment subject to termination for cause constitutes a property right protected by the due process clauses of the Nevada and U.S. Constitutions. 42. Under the law, the District/Board were required to provide Superintendent Davis with actual due process. Lapinski v. City of Reno, 95 Nev. 898, 603 P.2d 1088 (1979) 'Without waiving her right to a determination of cause by this Court under the Agreement, Superintendent Davis alleges that she was wrongfully deprived of her constitutional right to due process by, without limitation: (1) The District's failure and refusal to provide Davis with adequate time to prepare and present evidence and witnesses; (2) The District's failure to present testimony and evidence establishing grounds for termination for cause, thereby precluding Superintendent Davis from any opportunity -9 -
  10. 10. a t;I .S- I aÒ I n?äe iã!*SJ GØ ã6 ! v í ots r È õzs' I sÍ:l- liú t>¡o li o F ,z O H U) 1 2 1 J 4 5 6 7 8 9 10 11 t2 13 I4 15 r6 t7 18 l9 20 2t 22 23 24 25 26 27 28 to challenge and traverse the District's evidence and prima facie case; (3) The District's failure to provide a fair and partial tribunal and hearing officer presiding over the proceedings; (4) The District's decision to shift the burden of proof to Superintendent Davis to prove that she should not be terminated; and (5) The Board's reliance on secret evidence not provided to Superintendent Davis so as to deprive her of the right to counter such evidence. Without more, each of those grounds alone established wrongful termination as a matter of law. 43. The provision in the Agreement purporting to limit or eliminate the District and Board's liability in damages for breach of contract and other legal wrongs against Superintendent Davis violates public policy and is void under state and federal law and is unenforceable under 42 u.s.c. $1983. 44. Superintendent Davis has been required to retain attomeys to protect and advance her interests in this matter, has incurred costs and attorneys' fees in connection with such efforts and will continue to incur costs and attorneys'fees into the future. Under Paragraph 14 of the Agreement, Superintendent Davis is entitled to the recovery of her reasonable attorneys' fees and costs. 45. The acts and omissions of the District, Board and other defendants were done intentionally with malice andlor oppression for the express purpose of inflicting damage and harm to Superintendent Davis and to deprive her of her contract rights and her legal rights under the federal and state law and constitutions. First Claim for Relief (Breach of Contract against District and Board) 46. Superintendent Davis realleges as though fully set forth herein the allegations contained inparagraphs 1 through45 above. 47. Superintendent Davis fully performed all of the duties and responsibilities, terms and conditions on her part to be performed under the Agreement and did not commit any of the -10-
  11. 11. I 2 J 4 5 6 7 8 9 10 11 t2 13 t4 tã I øØ9 I r'ì iä J LØ ; jo¿ì t >izl<f .; I rJ Ê l>lô l< C) E È ,z () H U) o È15 T6 I7 18 t9 20 2T 22 23 24 25 26 27 28 acts or omissions identified under the Agreement as grounds for termination for cause. 48. By virtue of the acts and omissions set forth above, defendants District and Board breached the Employment Agreement, which breach proximately caused and resulted in injury and damage to Superintendent Davis in excess of $20,000 in an amount to be proved attrial. Second Claim for Relief (Breach of the Implied Covenant of Good Faith and Fair Dealing against District and Board) 49. Superintendent Davis realleges as though fully set forth herein the allegations contained inparagraphs 1 through 48 above. 50. There is implied in every contract a covenant of good faith and fair dealing which provides that neither party will commit any act or omission that deprives the other party of the benefits reasonably to be expected under the contract. 51. By virtue of the acts and omissions set forth above, Defendants Board and District breached the implied covenant of good faith and fair dealing in the Agreement, which breach proximately caused and resulted in injury and damage to Superintendent Davis in excess of $20,000 in an amount to be proved attrial, Third Claim for Relief (Violation of the Open Meeting Law against District and Board) 52. Superintendent Davis realleges as though fully set forth herein the allegations in paragraphs 1 through 51 above. 53. Under NRS 241.031, a meeting to consider the character, misconduct or competence of a superintendent of a county school district cannot be closed. 54. Under NRS 241 .026, a public body must make available to the public copies of any supporting material provided to the members of the public body for an item on the agenda and must post the material to its website. 55. There was no authority under the Open Meeting Law for the Board to withhold from the public or from Superintendent Davis "secret" documents or information on which the Board was to rely in making its termination decision. - 11-
  12. 12. 1 2 ^J 4 5 6 7 8 9 10 ll t2 ¡r, 9 3l Ê- 13 kI aÕ > IËs;* t4 áiZE¿i ls - lì:ior ál å t6 T7 18 I9 20 2l 22 23 24 25 26 27 28 56. Superintendent Davis is "a person denied a right" by the Board's failure to comply with the Open Meeting Law and entitled to bring this action under NRS 241.037(2). 57. This action is timely underNRS 241.037(3Xb) as it is brought within 60 days of the Board's July 1 decision. 58. The Board's July I,2019 decision to terminate the Agreement and the employment of Superintendent Davis with the District was made in violation of the Open Meeting Law and entitling Superintendent Davis to the remedies available under law. 59. Superintendent Davis is entitled to the recovery of her reasonable attorneys' fees and costs in this action for violation of the Open Meeting Law under NRS 241.037(2). Fourth Claim for Relief (Violation of State Constitutional Rights - against all defendants) 60. Superintendent Davis realleges as though fully set forth herein the allegations in paragraphs 1 through 59 above. 61. Article I, Section 8(5) of the Nevada Constitution provides that "no person shall be deprived of life, liberty, or property, without due process of law." 62. In terminating the Agreement and ending her employment with the District without a fafu hearing, defendants wrongfully, and in violation of the Nevada Constitution's guarantee of due process, deprived Superintendent Davis of her rights as a Nevada citizen and resident, including her property interest in her employment and her liberty interest in pursuing her occupation and profession. 63. As a direct and proximate consequence of the wrongful acts and omissions of defendants, Superintendent Davis has incurred and continues to incur damages in excess of $20,000 in an amount as to be proved at trial. Fifth Claim for Relief (Section 1983 - Violation of Federal Constitutional Rights - against all defendants) 64. Superintendent Davis realleges as though fully set forth herein the allegations in paragraphs 1 through 63 above. -12-
  13. 13. lr' 9 OI tr I áÕ > IPEÎS' J rØ ã6 ,z i?,,ti, - l<f dl: !i l!¡c 0()l ¿þ. dt 3 õt z 1 2 J 4 5 6 7 8 9 10 11 I2 I3 T4 15 t6 T7 18 t9 20 2I 22 23 24 25 26 27 28 65. Section 1983 of Title 42 of the U.S. Code provides as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of aÍry rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 66. Defendants are, and each of them is, a'operson" as defined by 42 U.S.C. $1983. 67. At all relevant times, defendants acted under color of state law and while acting under color of state law, deprived Superintendent Davis of both her property interest in her public employment and her liberty interest in pursuing her regular occupation and profession without the due process of law guaranteed by the 5th and 14th Amendments to the U.S. Constitution. 68. As a direct and proximate consequence of the wrongful acts and omissions of defendants, Superintendent Davis has incurred and continues to incur damages in excess of $20,000 in an amount as to be proved attrial. 69. Superintendent Davis is entitled to the recovery of her reasonable attomeys' fees and costs under 42 U.S.C. $1988 in this action for violation of her federal constitutional rights. Sixth Claim for Relief (Civil Conspiracy against Board President Holland and DOES I-V) 70. Superintendent Davis realleges as though fully set forth herein the allegations contained in paragraphs 1 through 69 above. 7I. Superintendent Davis is informed and believes, and on that ground, alleges that Board President Holland and DOES I-V knowingly and willfully conspired and agreed among themselves upon a plan and scheme riddled with malice, deceit and disinformation, as hereinabove alleged, to wrongfully terminate the Agreement between Superintendent Davis and the Board "for cause" on a pretext without basis in fact and to deny Superintendent Davis her contract rights to a full and complete evaluation process and to a severance package based on a termination without cause. 72. Superintendent Davis is informed and believes, and on that ground, alleges that Board President Holland and DOES I-V carried out the acts and omissions set forth above - 13 -
  14. 14. I 2 J 4 5 6 7 8 9 10 11 T2 I3 t4 15 o rãt. I -Ø; I ürae iã!*{ fo¡àP rliz-| <f .rÈ I JJ é I '¿e l> +{ O é. tr ,¿ c) H U) t6 t7 18 l9 20 2l 22 23 24 25 26 27 28 pursuant to, and in furtherance of, that conspiracy and above-alleged agreement, or otherwise furthered the conspiracy. 73. By virtue of the foregoing acts and omissions, defendant Board President Holland and DOES I-V conspired to and did wrongfully deprive Superintendent Davis of her rights under the Agreement, and other property and liberty interests. As a proximate result of the unlawful and wrongful acts alleged above, Superintendent Davis has been injured and damaged in an amount in excess of $20,000, to be proved at trial. 74. Superintendent Davis is informed and believes, and on that ground, alleges that Board President Holland and DOES I-V carried out the acts and omissions alleged above maliciously, with willful and conscious disregard for the rights and interests of Superintendent Davis, and to harm, injure and oppress Superintendent Davis, entitling Davis to an award of exemplary damages against Board President Holland and DOES I-V in an amount sufficient to punish and deter them and other such persons from such conduct in the future. Wherefore Superintendent Davis prays as follows: 1. That the Court award damages to Superintendent Davis in excess of $20,000 as proven attrial. 2. That the Court award exemplary damages to Superintendent Davis and against defendants Holland and DOES I-V in an amount sufficient to punish the defendants and set an example to deter further such conduct. 3. That the Court award Superintendent Davis her costs of suit and reasonable attorneys' fees as provided in the Agreement and pursuant to NRS 241.037(2) and 42 U.S.C. 1988. 4. That the Court award such other and further relief as Superintendent Davis may be adjudged entitled to in the premises. -14-
  15. 15. lr(.) ¿ Ë Ë ,z () d U) I l-l@ IO l= o i;ø+ àà3 bz^ ¡C Ed o I 2 J 4 5 6 7 8 9 10 11 T2 13 T4 15 t6 T7 18 l9 20 2I 22 23 24 25 26 27 28 AF'F'IRMATION Pursuant to NRS 2398.030 The undersigned does hereby affirm that the preceding document does not contain the social security number of any person. Dated: August 30,2019 SNELL & WILMER t-.r..p By: o t528 50 V/est Liberty Street, Suite 510 Reno, Nevada 89501 Attorneys þr Plaintiff Traci Davis -15-
  16. 16. t<, I ()l Ë Isæ* ø isi,Ë '.- I ff¿È Tl-gjUDI Z I 2 a J 4 5 6 7 8 9 10 11 t2 13 t4 15 t6 T7 18 T9 20 2l 22 23 24 25 26 27 28 Exhibit No. 1. ) J. INDEX TO EXHIBITS Title of Exhibit Employment Agreement June 27, 20 1 9 Davis Response Questions to Be Asked of Staff No. of Pages t4 t2 J -t6-
  17. 17. EXHIBIT 1 EXHIBIT 1 F I L E D Electronically CV19-01713 2019-08-30 02:52:21 PM Jacqueline Bryant Clerk of the Court Transaction # 7460792 : yviloria
  18. 18. Ë M E l-oYM E N T Ac RE Hll|l E N r î s u P F ql N Iç l-{,p F Ñr gL$.ç Ho p L$ This Employment Agreement - $uperintendent of Schools ('Agreement") is entered into pursuant to NRS 391.110 by and between the BOARD OF TRUSTEES CIF THE WASHOË CCIUNTY SCHOOL DISTRICT, a "body corporate" created by NRS 386.1 10 (hereafter "Trustees" or "Board") on behalf of the WASHOË COUNTY SCHOOL DISTRICT, a political subdivision of the State of Nevada created by NRS 38ð.010 (WCSD') and TRACI DAVIS, an individual("Davi$" or "Superintendent") (collectively, the "Pârtië$") to employ Davis in the position of Superintendent of Schools. lt is made with reference to the following facts: RECITALS A. Davis is licensed â$ än administrator by the Nevada Department of Education and is qualified to serve and to be employed as a $uperintendent of Schools in Nevada. Davis is currently employed by WCSD and serving in the capacity as Superintendent of $chools. B. Davis was initially employed by WCSD commencing in September 2012 as Deputy Superintendent, and served in that capacity until October 2014 when she was appointed lnterim $uperintendent by the Board. As lnterim Superintendent, Davis was responsible for and porfonned all the duties for which she would have been responsible had she been appointed Superintendent in October 2t14. C. On July 10,2015, the Board voted in an open public meeting to appoint Davis as Superintendent, effective immediately, subject to negotiation and approval by the Board of a written Employment Agreement, ln December201S, the Board and Davis entered in an Employment Agreement, retroactively effectlve to July 1A,2Q15, the date Davis was appointed by the Board to assume all duties of the position {the "Pricr Agreement"). D. The Term of the PriorAgreement expires June 30, ?018. On February 13, 2018, the Board voted in an open public meeting to give notice to Davis of its intent to enter into negotiations with Davis for a new employment agreement, as required by Section I of the Prior Agreement, subject to negotiation and approval by the Board of an appropriate written Ëmployment Agreement.
  19. 19. Ë. Private counsel of Davis' own independent selection on her behalf, and private Board counsel selected by the Board in an open public meeting on its behalf, have negotiated at arms-length on behalf of thç Parties and have prepared this written Agreement memorializing the terms and conditions of the employment of Davis by the WCSD to serve as Superintendent, subject to consideration and ultimate approval of this Agreement by the full Board in an open, public meeting. E. The Parties now wish to enter into this Agreement to describe and set forth lhe terms and conditions of Davis' employment as Superintendent of Schools for WCSD. F. On June 12,2018, durlng an open publíc meeting of the Board pursuant to proper notice under NRS 241.020, the Board took action and voted to approve this Agreement with respect to the employment of Davis as Superintendent of Schools, NOW, ïHERËFORË, in light of the foregoing facts and in consideration of the mutual promises contained in this Agreement, the Parties hereby âgree as follows: TERMS ANT CON}ITIONS 1. ßççitals lncorporate4. The Recitals setforth âbove are hereby incorporated and made a part of this Agreement. 2. Exclusive Ëmployment. The Board hereby employs Davie pursuant to NRS 391.1 10 to serve as Superintendent of Schools for WC$D exclusively, and Davis hereby accepts such employment by the Board according to the Terms and Conditions contained in this Agreement. Davis agrees to well and faithfully devote all of her professional time and attention to the sole and exclusive benefit of WCSD, ãnd to or for no other employment, professional endeavors, or personal business for profit. Notwithstanding the foregoing, Davis may, from time-totime, accept speaking engagements, lecturing, writing, and similar professional activities, and may occasionally accept an honorarium for such service. However, in such ca$es where an honorarium may be paid, Davis shall provide the îrustees with advance notice in writing of her intent to accept any offered honorarium so that the Trustees may have an opportunity to object to the engagernent. 3. Ëff_ectivgåate. The 'Effective Ðate" of this Agreement is July 1,2018 2
  20. 20. 4. Term of Aqreement. The Terrn of this Agreement and of Oavis' employment hereunder as Superintendent cÕmmenced on the Ëffective Date, and shalf continue until it expires on June 30, 2020 (the "Term"), or unless terminated earlier or extended as provided in this Agreement. Should Davis receive or exceed a "meels expectations" evaluation of her overall performance for the 2û18-2019 school year pursuant to Paragraph B of this Agreement, the Term of this Agreement will be automatically extended for one additional year, such that this Agreement will expire on June 30, 2021. îhe Term of this Agreement shall not exceed three years. 5. Consíderation. The consideration for this Agreement consists of: (a) the monetary compensation to be paid to Davis and the related lringe benefits described in the following Paragraph 6, the sufficiency of which acknowledged by Davis; and (b) the mutual promises of the Parties, all as described in this Agreement. 6. Çoqnensation. ln exchange for the full and faithful performance of all of her duties and responsibÍlities as Superintendent of Schools as described below, Davis shall be compensated by WCSD as follows: {a) Fase Salarv, WCSD shall pay Davis the gross annual Base Salary of $275,514.75 incrementally as i1 ís earned at WCSD's regular payroll intervals, Davis shall receive and be subject to such annual cost of living adjustments ('COLA') as are other full-tíme 12-month Administrators of WtSD during the Term" (b) Performancq.Sonuq. The Eoard may, in its solo and unfettered discretion, vote to give Davis an additional Performance Bonus for overall exemplary performance of her duties and responsibilities as Superintendent, as evaluated by the Board pursuant to Section I of this Agreement, up to a maximum ol 1ãô/ç of her annual Base Salary in effect at the conclusion of each WCSD fiscal year during the Term of this Agreement and payable on December 31 in a lump sum minue required withholdings. ln considering whether to award such a Performance Bonus and the amount of any such Perfonnance Bonus, the Eoard shall consider Davis' performance as measured by weighted goals and metrics to be set by the Board in its discretion aTter consultation with the Superintendent. To the extent the Superintendent reçeives or exceeds a "meets expectations" evaluätion of her overall performance as measured by the adopted goals and metrics, the Board shall award a minimurn ol 5o/o up to a maximum 151/o ol Davis' annual Base Salary. Such Performance Bonus shall not increase the $uperintendent's 3
  21. 21. Base Salary and shall not be included in determíning PERS conlributions. For purpose$ of awarding Davis a Performance Bonus, if any, at the end of the term of this Agreement for her performance in the final fiscal year of this Agreement, the Board shall award such bonus based on goals and metrics that can be assessed 30 days prior to the end of the term of the Agreement and such Performânce Bonus, if any, shall be awarded no later than June 30 ol the final year of this Agreement. (c) Regul?r Frinqe Benefitg. Davis shallbe eligible to receive all normal fringe benefils of employment as fulltime 12-month Adrninistrators of WCSD during the Term, This includes, but is not necessarily limited to, full payment by WC$D of premiums for group medical, dental, and vision insurance plans for the Superintendent, her spousê, and her eligible enrolled dependent(s), and full payment of normal contributions for Davis to the Nevada Public Employees Retirement Systems f'PERST. (d) Defened Compensation. Subject to all applicable laws, WCSD shall annually contribute the sum of $15,000 on Davis' behalf to a qualified tax-sheltered annuity or deferred compensation plan approved by the Board, commencing on June 30, 2019. (e) Gçgp Term , Life lnsurance. As an administrative employee of WCSD, Davis shall qualify to be a certificate holder of WCSD's group term life insurance policy with a death benefit of $?50,000 and a similar accidental death and dismemberment benefit. (f) Whole- Life lnsurance. Davis shall receive the sum of $1,500 annually to be applied toward the premíum of a whole life insurance policy. (g) Vacation Leayp. Davis shallaccrue and be allowed to take 20 days of paid vacation annually. She may accrue a maximum total of ô3 days of paid vacation, including any such vacation she may have already accrued but has not used since beginning her employment with WCSD in September 2012. Any accrued but unused vacation that may remain available for Davis upon the termination of her employment for âny reåsCIn shall be compensable and paid to her within 15 days after the effective date of such termination. Within 15 days after July 1 ,2018, Davis rnay elect to be paid in cash for up to a maximum of 15 days of accrued but unused vacation. Within 15 days after 4
  22. 22. July 1 ,2019 an annually thereafter during the Term, Davis may elect to be paid in cash for up to a maximum of seven (7) days of accrued but unused vacation. (h) Sick Leave.. Davis shallaccrue and be allowed to take up to '15 days cf paid sick leave annually, She may accrue a maximum total of 250 days of paid sick leâve, including any such paid sick leave she may have already accrued but has not used since beginning her employment with WCSD in September 2012. Upon termination of Davis' employment fcr any reascn other than for Cause (as defined in Paragraph 10 hereini, 25o/o of âny äccrued but unused paid sick leave shall be compensable and paid to her within 1 5 days after the effective date of such termination. ln addition, in recognition of accrued but unused paid sick leave under Davis' prior Superintendent Agreement, an additional 60.5 days of unused paid sick leave shall be compensable and paíd to her as set forth herein. Thirty (30) days of such accrued sÍck leave shall be paid on or before July 1, 2û18. The balance of 30.5 accrued but unused paid sick leave (the "Banked Sick Leave") shall be paid to Davis upon termination of her employment, regardless of the reäson for termination. (¡) Annual Medical Hxamination. WCSO shall pay the reasonable and customary fees for an annual comprehensive medical examination of Davis, to be performed by a qualified physician of her choice licensed to practice medÍcine in the State of Nevada, including paymont for all related and medically necessary laboratory fees for use by the physician in connection with the annual medical examination. Davis shall request the physician to write a comprehensive report upÕn completÍon of the annual physical examination describing any significant health issue Davis may have which may affect her ability to perform any of her essential duties and functions. This written report should be addressed to the Fresident of the Board and marked as "Confidenlial," on the statement itcelf and on the outside of the envelope used to transmit it to the Board President. The Board President in his or her discretÌon may disclose the report to the other: members of the Board. (¡) Dues and Memþcrship FeS-q ,,for Profçp-åiqfral-......an"4 -Civic Orgsnizations. Consistent with its practice and policies, WÇ$D shall pay directly, or shall reimburse the Superintendent, far her dues or membership fees for appropriate professíonal associations and organizations, and for civic or service organizations of which she may be a member while she is employed as Superintendent. 5
  23. 23. (k) B,qlmbursement ofJ$poroved Ëxpenses. Consistent wíth its practice and policies, WCSD shall reimburse the Superintendent for reasonable and appropriate out-of-pocket expenses which she may incur and/or pay for travel, lodging, meals, and the like in connection with the performance of her duties âs Superintendent. Superintendent shall keep receipts and provide any other documentation r.equired by WCSD for any such reimbursable expênses to be revÍewed and reasonably approved (or denied) by the Board. (l) Vehicle Ëxpense Allowancq. During the Term, WCSD shall pay Davis the sum of $800.00 per month as reimbursement for all expenses she incurs for the use of her personal motor vehicle (including but not limited to mileage, insurance, fuel, and all other costs which shall be Davis' sole responsibility) in connection with the performance of her duties as Superintendent. 7. Duties aqd Responsibilities. ln exchange for and in consideration of the monetary compensation and benefits described above and the other mutual promises of the Parties, Davis shallwell and faithfully perform all the normal duties and responsibilities of a Superintendent of Schools under Nevada law as the chief executive officer of the WOSD, the specifically described duties set forth below, and any additional and reasonable duties as mãy be assigned to herfrom time-to-time by the Board. Her specific duties include, but are not limíted to: (a) Orsanizína and Supervi$inç WCSD S&ü. The Superintendent shall be responsible for the cverall leadership of WCSD, including organizing, reorganizing, and assigning the job duties of her subordinate supervisory staff in her best professional administrative judgment in the intereste of WCSD, including without limitation the selection, assignment, evaluation, transfer, ând salary of adrninistrative and other professional employees of WCSD. When formal approval by the Board is not required in connection with her performance of the foregoing duties, the Superintendent shall advise and inform all Trustees of all significant irnportant such decisions she may contemplate regarding reorganization orcompensation of the administrative and supervisory staff, and she shall take the views of the Trustees into serious account and consideration. (b) Meetinq PerfonLance Goals. Davis shall at all times be required and expected to perform her duties and responsibilities and Superintendent at a high professional levelthat is directed toward and is likelyto meetthe variousgoals, objectives, 6
  24. 24. priorities, and targets established by the Board in the WCSü Strategic Plan, "Envision kllC-SD 2020," and any revisions to the Strategic Plan that may be adopted by the ßoard during the Term, as well as äny related or associated strategic initiatives that may be undertaken by the Board duríng the Term. Davis shall be expected to meet and attain all such goals and objectives, as well as any other goals and objectives as the Board may othen¡vise set for Davis after consultation with her. (c) Çonlplyinç Witþ Eoard Policies. The $uperintendent shallat alltimes be rnindful of and endeavor to fully comply with all Board policies regarding governance as may be adopted and in place during the Term, and she shall require the same of her subordinate staff. (d) R$commeuji-ng Adppt!_on ollnstitution ql_Chançes or Adjustments to,Çr{rriqulum". Ppç¡:am.s. Policies. and Other Matters. ln performing her leadership role, Davis shall recommend the adoption or institution by the Board or WCSD staff of appropriate changes, adjustments, and/or reforms of existing or new approaches or methods in matters pertaining to curriculum, programs, policies, and other educational and operational matters. (e) Collaborative and Cooperative ßelafip,nçh,ip.With the Hoard: Liaison to the Community. While the Superintendent reports ultimately to the Board, her duties include building and maintaining a collaborative and cooperative working relationship with the Board in the best interest of WC$D as a whole, particularly its students, families, and staff. The Superintendent shall also servç as the liaison between the WCSD and the community it serves, including but not limited responsibility for implementation of the strategic communications plan set forth in the Strategic Plan as amended by the Board from time-to-tinte or åny such similar communications plan that the Board may adopt during the Term. (f) Attendance at all Boald and*Çiçn"ifiçant Cornmitfee Meetinsp. The Superintendent shall attend all regular, special, and closed meetings of the Board unless she is absent in order to attend to other Superintendent duties. $he shall also attend all Board committee and subcommittee meetings äs may be appropriate or neoe$sary in her judgment or as directed by the Trustees, and may submit any recommendations on any business or issues being considered by the Board or any Board committee or subcommittee. 7
  25. 25. (g) Fqi¡tgJino and Manqqing Collaborative and ,Çqopgfative Belationships Betweqn WCSD and the Board. The Superintendent shall be responsible for fostering and managing a genuine spirit of cooperation and collaboration between WCSD Staff and the board, and for keeping the Board fully informed and abreast at all time of significant developments, initiatives, and issues facing WCSD and it staff. 8. Ëvalq.$tion olPerformance. îhe Parties shall meet quarterly to discuss progress toward annual performance goals adopted by the Board with consultation and input from the Suporintendent, and the general working relationship between the Superintendent and the Board consistent with the adopted schedule for strategic plan reporting. The Superintendent shall schedule her annual performance evaluation by the Board to take place no earlier than November 1 and no later than December 31 annually, unless otherwise mutually agreed to by the partíes. The Board shall evaluate the $uperintendent's performance of the goals adopted by the Board with consultation and input from the Superintendent using an evaluation form and process determined solely by the Board after consultation with any input from the Superintendent. The Board shall provide the Superintendent with a copy of the completed performance evaluation form regarding her performance as Superintendent to which the Superintendent shall have the right to respond orally and/or in writíng within 30 days of her receipt of the form. 9, Neqotiatiqn-of a l$.ewJ{greempnt. This Agreement shall not automatically renew upon its expiration except as the Term may be extended for one additional year a$ provided in Paragraph 4 herein. Rather, following expiration of the Têrm, a new Employment Agreement may be negotiated by the Parties at any time in the Board's sole and unfettered discretion by giving Davis at least g0 days'written notice of its intent to enter into negotiation of a new Employment Agreement, and in no event later than 90 days prlor to the expiration. Similarly, if the Board determines not to negotiate a nevv Employment Agreement with Davis, it must provide Davis with written notice of its intent not to negotiate â new Ernployment Agreement with Davis no later than 90 days prior to the expíration of the Term. Noþvithstanding the foregoing, the Board shall endeavor to provide Davis with written notice of its intent to enter into negotiations ol a new Employment Agreement with Ðavis or its intention not to negotiate a new Employment Agreement with Davis no later than 180 days pdor to the expiration of the Term. I
  26. 26. 10. Termination. This Agreement, and Davis' employment as Superintendent of Schools hereunder, shall terminate upon expiration of the Term as described in Paragraph 4 herein, by Davis' resignation ot retirement, or by Davis' death. lt may also be volunlarily terminated at any time by ûavis upon at least 90 days' advance written notice delivered to the President of the Board. lt may also be terminated involuntarily by the Board at any time prior to the expiraticn of the îerm for any not unlawful reason or no reason, with or without Cause (as defined below), or for Disability (as defined below), as follows: (a) Termination fel,Çagse. This Agreement and Davis' employment as Superintendent may be terminated at any time for Cause upon ã majority vote of the Board. "Cau$e" shall be defined as: (1) conviction, plea of guilty, or plea of nolo contendere in any court of lawful jurisdiction of any felony or gross misdemeanor of a crime of moral turpitude or of driving a motor vehicle while impaired by or under the influence of alcohol or drugs; (2) any act of dishonesty, fraud, embezzlement, theft, unethical conduct, or for grôs$ negligence in the performance ol her duties and responsibilities under this Agreement; (3) failure to maintain Nevada Department of Ëducatisn administrator license, including the suspension or revocation thereof; (4) failure to report any violation by Davis of law or policy that WC$D employees may be required to report pursuant to law or applicable WCSD policy and for which other WCSD employees could be terminated for cause; or (6) âny reâsûn constituting Cause as that term may otherwise be defined under Nevada law;provlded, however, that unlike other WCSD employees, the $uperintendent shall nof at any time have any right to a due proces$ hearing before the Board Õr any lhird person(s) prior to such involuntary terminatian for Cause or without Cau$e, or any other procedural due process rights contained in NR$ Chapter 391 that may apply to other WC$D employees. lnstead, Davi$' sole and exclusive remedy to challenge her termination for Cause shall be through a private action timely commenced by her in the Second Judicial District Court for the State of Nevada in Washoe County, to be heard and determined by the Couil without a jury. lf Davis prevails in such action on the factual issus of whether there was Cause for her termination, she shall then be entitled to receive only those contractual payments to which she would have been entitled as provided in the following subsection (b) as if she had been terminated without Cause. ln no event may the Court in any such action award any tort damages or punitive damages to either Party. Notwithstanding the foregoing, the prevailing party ín any such action shall be entitled to its/her reasonably attorneys'fees and costs, 9
  27. 27. (b) Termination Without Causq. The Board may terminate this Agreement and Davig' employment at-will, at any time, for any not unlawful reason or no stated reason, without Cause, upon providing Ðavis at least 90 days'written notice delivered to her personally or sent by certified U.S. Mail, rêturn receipt requested, at her last known residence address on file with WCSD. (c) Termination for Disability. ln the event Davis is unable to perform any essential functions of her job or dutìes as Superintendent of Schools with or without a reasonable accommodalion because of her own physical or mental illness, condition, or injury, and such disability last or exists for a period of g0 days within any consecutive 12- month period, the Board may determine to place Davis on a disability leave of absence without pay, during which time she will nonetheless be paid for, and required to use, any accrued and unused vacation and sick leave. The period of any such disability leave of absence shall be determined in lhe Board's sole and unfettered discretion, taking Davis' input into consideration. During such disability leave of absence, Davis shall not âccrue any additional paid time off, and the Board may appoint another qualified administrator as Acting Superintendent. Before being eligible to retum to duty as Superintendent, Davis shall provide a confidential and comprehensive written summary of her physical andlor mental illness, condition, or injury, and an unequivocal statement in writing from a physician licensed by the Nevada State Board of Medical Ëxaminers to practice medicine in the State of Nevada, certifying that she is able to return to duty and can perform allthe duties and essential functions of her position as Superintendent with or without a reasonable accornmodation. The Board may also require Davis to submit to examination by another similarly qualified physician chosen by the Board to provide a separate medical opinion to the Board regarding whether Davís is able to retum to duty and can perform all the duties and essential functions of her position as Superintendent with or without a reasonable accommodation. ln the event the two opinions disagree, the first physician and the physician chosen by the Board will choose a third physician to conduct an exam to determine whether Davis can perform all the duties and essential functions of her position as Superintendent with or without a reasonable accommodation, and such third opinion shall be final and binding on the Parties. Upon expiration of the disability leave, if Davis is has not returned or cannot return to duty as Superintendent, the Board may, in its sole and unfettered discretion, continue the period of leave for any appropriate additional period of time, or the Board may terminate Davis' employrnent and place her on disability retirement status. 10
  28. 28. 11. Pavment in the Ëvent,of ïernlinatign. Effective upon the termination of this Agreement, WCSD will be obligated to pay Davis (or, in the event of her death, her estate) only such compensâtion as is provided in this Section 1 1, and in lieu of all other amounts and in settlement and complete release of all claims Davis may have against WCSD. {a) ln the event this Agreernent and Davis' employment by the WCSD is terminated as the result of the expiration of the Term, WCSD shall pay Davis: (1) her eamed salary through the last day of her employment; (2) any accrued and unused vacation leave; (3 25Yo of any accrued and unused sick leave; (4) the Banked Sick Leave; (5) any unreimbursed appropriate expenses; and (6) any Performance Bonus awarded pursuant to Paragraph 6(b). WCSD shall not be required to pay Davis any other additional $um or benefit. (b) ln the event this Agreement and Davis' employment is terminated as the result of her death or voluntary resignation (including retirement), WCSD shall pay Ðavis (or her estate in the event of her death): (1) her earned salary through the last day of her employment; (2) any accrued and unused vacation leave; (3) 25% of any accrued and unused sick leave;{4) the Banked Sick Leave;ånd (5) any unreimbursed appropriate expenses. WCSD shall not be required to pay Ðavis any other additional sum Õr benefit. (c) ln the event this Agreement and Ðavis' employment is terminated as the result of her Disability, the Board shall place Davis on disability retirement status, and she shall be eligiblo tc receive any disability insurance and Nevada PERS benefits to which she may be entitled under any applicable WCSD insurance plans and policies in place and applicable law. WC$D shall pay Davis: (1) hø eamed salary through the last day of her employment, provided that Ðavis shall not be entitled to eam a salary while on disability leave: (2) any accrued and unused vacation leave; (3) 25% of any accrued and unused sick leave; (4) the Banked $ick Leave; and {5) any unreimbursed appropriate expenses. WCSD shall not be required to pay Davis any other additional sum or benefit. (d) ln the event this Agreement and Davis' employment is terminated for Cause, WCSD shall pay Davis: (1) her earned salary through the last day of her employment; (2) any accrued and unused vacation leave; (3) the Banked Sick Leave; and (4) any unreimbursed appropriate expenses. WCSD shall not be required to pay Davis any other additional sum or benefit. 11
  29. 29. te) ln the event this Agreement and Davis'employment as Superintendent is ínvoluntarily terminated without Cause, WCSD shall pay Davis: (1) her eamed salary through the last day of her employment; (2) any accrued and unused vacation leave; (3) 25o/o oi any accrued and unused sick leave; (4) the Banked Sick Leave; and (5) any unreimbursed appropriate expenses. ln addition, WCSÐ shall continue to pay Davis incrementally at its regular payroll intervals, an additional total gross amount equalto one year of Base Salary in effect as of Davis' last day of employment. WCSD shall not be required to pay Davis any other additíonal sum or benefit. 12, lndemqi{cqlign, WCSD shall defend and hold Davis harmless from any demands, claims, suits, action$, ând legal proceedings (including the cost of defending against such matters) ("Claims") brought against her, whether in her individual or in her officialcapacity as WCSD Superintendent, provided that she was acting within the courss and scope of her employment as Superintendent at the time of the alleged âct$ or omissions giving rise to the Claims, and excluding criminal litigation except as permitted by NRS 391.271. WCSD shall have the right to choose counsel to defend and hold Davis harmless from any Claims laking into account Davis' input, Nothing in this Agreement imposes an obligation upCIn any individual Trustee to personally indemnify and/or hold the Superintendent harmless against any Claims. Davis agrees to release and discharge WC$D and the Board harmless and indemnify WC$D and the Board for all fiabilities, losses, demands, claims, accounts, actions and proceedings arising or resulting from Davis breaching this Agreement. 13. PIior A¡rproval. At no time during the Term of this Agreement may Davis herself execute or direct any WCSD administratol, employee, or agent to execute any contract, cooperative agreement, interlocal agreement, memorandum of understanding Õr agreement, letter of intent or the like, with or for the benefit of any municipality as defined in NRS 271.145 or NRS 350.538, any public âgency as defined in NRS 277.100, the Nevada System of Hígher Education as defined in NRS 396.020, oï any nonprofit entity or association, without the explicit prior approval of the Board. 14. Attornev's Fees and Costs. lf either Party to this Agreement brings an action or other proceeding to enforce or inteçret any provision of this Agreement or to resolve any dispute arising under this Agreement or the employment relationship, lhe prevailing Party in any such action shall be entitled to an award of her/its reasonable L2
  30. 30. ãttorney's fees and costs incurred in connection with prosecuting or defending such action or proceeding. 15. Binding Effect. This Agreement shall be binding upon and insure to the benefit and detriment of the Parties, as well as to their respective successor$, heirs, executors, and administrators, as the cã$e may be. Notwithstanding the foregoing, this Agreement is personal to Davis and he¡ employment hereunder shall not be assignable by her without prior written congent of the Board. 16. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render it or any of its other provisions as unenforceable, invalid, or illegal. lnstead, such remaining provisions of this Agreement shall be construed in all respects as if the unenforceable, invalid, or illegal provision(s) were omitted. 17. Choice gJ Law:Jufipdictíon and Venue. This Agreernent and all of its terms shall be construed, interpreted, and enforced exclusively pursuant to the laws of the $tate of Nevada regardless of conflict of law principles. Only the courts of Nevada shall have jurisdiction of any action brought by either Party regarding this Agreement or the employment relationship, with exclusive venue in the Seccnd Judicial Ðistrict Court in Washoe County, or, if it has or can acquire jurisdiction, the U.$. District Court in and for the State of Nevada, Reno Division. 18. Waivef of JuryJqial. EACH PARTY HERËTO HERËBY IRREOVCABLY WAIVES, TO THË FULLEST TXTãNT PERMITTED BY APPLIACBLE LAW, ANYT RIGHT IT MAY HAVE TÛ ATRIAL BY JURY IN ANY LEGAL PROCËËDING DIRECTLY OR INURËCTLY ARISING OUT OF RELATING TO THIS AGREEMENT OR THE EMPLOYMËNT RELATIONSHIF (WIIETHER ËASËD ON CONTRACT, TORT, STATUTE, OR ANY OTHËR THECIRY. 19. Coqnlerparts. This Agreement may be executed in two CIr more counterparts, each of which shall be deemed and original, but all of which together shall continue one and the same instrument. 20. EntiÍe Açreement" This Agreement contains the entire agreement between the Parties regarding Þavis' employment as WCSD Superintendent of $chools and the subject matter hereof and supersedes any and alf prior understanding and/or written or 13
  31. 31. CIral agreements âmong them respecting the within subject matter, including but not limited to the Ëmployment Agreement * Superintendent of Schools dated December 2015. There are nö representations, agreements, ånâng€ments, or understandings, oral or written, between CIr among the parties hereto relating to the subject matter hereof that are not fully expressed herein. This Agreement may not be modlfied, changed, altered, or amended in any wây except by a subsequent written instrument referring specifically to this Agreement by its title and date, and signed by both Parties to this Agreement. Dated: June !å ,2018 BOARÞ OF TRUSTEES OF THE WASHO COUNTY SCHOOL D:STRICT Simon President Vice Dated:.lune * ,201a SUPERINTENDENT OF THE WASHOE couNTY $cHooL D|STRICT Traci Davis, Superintendent R. L4
  32. 32. EXHIBIT 2 EXHIBIT 2 F I L E D Electronically CV19-01713 2019-08-30 02:52:21 PM Jacqueline Bryant Clerk of the Court Transaction # 7460792 : yviloria
  33. 33. Snell &"WilrnerI I n.--- :r:rìl"jr: :..c,s ,{IiìilÌ-i,t ';t )iq (i¿.¡iûS r:)?.t i.ii.ìË {;(-;:.; fi FlìctNlx tì l.r¡ ' $¡1liÌ' l.AKll í.ll11 ":-uos('):i i-d!{ {tij':icäs 5S Wesr Llbt:rty S;reer Suite 51C Ren¡:. Nc.çaria 395t1 -I 96i 175.?8i.541'.,1 ??5 78i.54,11 {F¿¡x} *¡vw,sv..l*rv.c¿m Williarn E. Percrson Q7s) 78s.s407 wpeterson@swlaw.corn Jvne27,2019 VIA EMATL TRANSMISSION Presicient Katy Simon Holland Vice President Malena Raymond Board Member Ellen Minetto Board Mcmber Scott Kelley Board Member Andrew Caudill Board Member Angela D. 'I'aylor, Ph.D" Board Member Jacqueline Calvert WCSD Board of Trustees 425 E. Ninth Street Reno, Nevada 89512 Re: Traci Davis Dear President Holland and Members of the Board of Trustees: I am the attorney for Superintendent Traci Davis and write on her behalf to address the allegations made against her in the June 1 3,2019 letter from Trustee Holland and the June 21, 2019 letter fiom District Counsel Rombardo and the attendant circumstances. The substance of both letters is identical (except for a corrected typographical error) and sets forth 17 separate charges against Superintendent Traci Davis for alleged violations of: (1) her Employment Agreement, (2) her fiduciary duties to the District, (3) Board Policies 4505, 5700 and 9200, (4) Administrative Regulation4425, and (5) Nevada statutory law. The only specifìc factual allegations are contained in the third paragraph of the June 21 letter (second paragraph of the June l3 letter) as follows: " [TJhe District now possesses conclusive evidence, in Lasic's own words, that he received or accessed confidential information regarding the Investigation and thot within hours, and sometimes only minutes, he transmitted said confidential information to Green and/or Ricci. The confidenlial information included documents, reports, attorney-client privileged communications, altorney work product, and/or verbal communications from meetings with senior leadership -persannel in charge ofthe Invesligation that could only kave been obtained 'it¡til ì; ¿.i¡ìtt:+t rt i, íiit|iir).,)a ôl t,a:< t';',11':¿ai1 ihô LeärjiÊ$,i,s391ìi,)üç!, ri! ìii!<irart:<1)tti.att'i vií?,tt)
  34. 34. *zz#iT fu-VJrlrxt*r June 27 ,2019 Page2 improperly from verbal communications in meelings at wltich you were present, -front documents you possessed, and/or email contmunicalions lhal you were included on, and with substantial evidence lhal you protti¿led uccess to said inJbrmation. " The oniy allegations against Superintendent Davis are that she was present at tneetings, possessed documents, and was incluclecl on emails from which confidential information was improperly obtained. There is no assefiion that she was the only peffion present at any such meetings, the only person in possession of such documents, or the only person inclucled on thc emails. 'l'he claim of "substantial evidence that lSuperintendent Davis] provided access to saicl information" is based on225 pages of handwritten notes, text messages and emails from or exchanged by, between or among Byron Green, David Lasic,.Tenny l{unt (Ricci), and David Fryclrnan, with occasional attachments, but not a single email, text rnessage, letter, or note lrom Sriperìntendent Davis (and the District certainly conducted an exhaustive email and record search before bringing these charges), and not a single email, text message, letter or note from any of the persons involved in any of these communications, stating, or indicating that any of the inf'ormation mentioned or discussed came fiom Superintendent l)avis, or identifying her as a source. In fact, some of the documcnts suggest an alternative source. On the page which is bates- starnped PL0357, f'or exarnple, David Lasic identifies Neil Rombarclo as having sent a metno to "his llients" (the Board) without realizing that Mr. Lasic was automatically includecl on all such emails although not named as an addressee, It also must not have occurred to anyone that Superintendent Davis fired Ms. Ilicci and would not have any interest in assisting her in a laursuit based on that termination. Not only is there no evidence that Superintendent Davis plovided confirlential information to Ms. Ricci or otherwise "assisted" hcr complaint, -Superintendent Davis hacl no motive to clo either, but rather a rnotive and interest only in doing the exact opposite. I-Iaving reviewed the entire packet, I cannot identify a single docunent or even a statement that supports or, fiankly, is even relevant to the clairn that Superintendent l)avis irnproperly providcd confidential information or access to such infbrmation. Other than the onc refèrei',ce ioCounsel Rombardo's nremo, there is fttrthermore not even any information that falls within the categories of reporls, attorney-client privileged communications, attorney work product, etc. Superintendent Davis denies that she provided David Lasic or anyone else with improper aÇcess to óonfìclential infonnation. But the District is aware of that. Both the June 13 and June 21 letters acknowledge that Superintendent Davies denied leaking any confidential information. 4iì43-9!J56-!t27
  35. 35. 5n*T1&TfihnrrL.t...l: ---^--"-**-" June 27,2419 Page 3 'fhat denial is not contradicted by a single piece of paper either originating with Superintendent Davis or identifying Superintendent Davis as the source of any such communication, or any witness stating, representing or testifying that Superintendent Davis provided or communicatecl any confidential inf'ormation, or provided Mr. i,asic or anyone else rvith access to such information. Because the District is a large organization, r,vhen conficlential information is leaked, there is ordinalily an investigation. The leak of conf,rdential infotmation is not treated as a convenient opportunity to accuse an employee who is a target for other reasons. Here, however, there is no record of or reference to any investigation into all the persons who attended the meetings with Superintendent Davis, who possessed the satne documents, how such person or persons ¡rrotectcd the confidentiality of such documents, who they may have intentionally or unintentionally shared such documents with, or discussed intbrmation with, or who were included on the same emails (intentionally or unintentionally) and thus had access to the same alleged confrdential information. In fact, no olle apparently even asked David Lasic how he obtained the alleged confidential infbmration.l lnstead, and notwithstanding her acknowledged and uncontradicted denial, this Board apparently met (very likely in violation of the Open Meeting law), decided to seize the occasion to accuse Superintendent Davis of "providing access" to the allcged confidential information as a basis for terminating her Employment Agreement, and authorizcd Board President Holland to send the June 13 letter. The June 13 and June 2l letters inflate the single allegation that Superintendent Davis improperly either provided confidential information or access to such information to Mr. Lasic into 17 separate charges including failing to provicle a saf-e learning environment and failing to keep the Board infonned of issues, all without any further specification, explanation or evidence. The 17 charges are a laundry list which can only be intended to lend false gravitas to an absence of substantive content. The District's purpose here is clear - to circumvent the normal evaluation process and terminate Superintendent's Ernployment Agreement "f.br cause" on an expedited timetable with no regard for fairness, due process or the truth. 'l'hat purpose is further manifested by the pattern of deception, misrepresentation and nianipulation demonstmted by the District in bringing these charges and the political strategy to defame her and her counsel in public alter bringing those charges. That pattern includes deliberately deceiving Superintendent Davis into staying after the Incline High School I I am infomed that at least one of you reccived a direct communication from Mr, Lasic, that Superintendent Davis neither provicled hirn with any confidential information nor allowed him access to any such information or communications. 'fhis denial has been communicated to others as well. 484--9956-9627
  36. 36. Sneål {kï{/ihxrxt i..ì. iì ------ "' *-. June27,2019 Page 4 graduatiçn ostensibly to cliscuss her evaluation and the District's Strategic Plan only to be served personally by lloarcl President llolland with the June 13 letter and the 225 pages of "evidence." When S¡perintenclent Davis asked what the reason was for the deception, President Holland saicl that the Offìce of the General Counsel told her to cto it that way. The deliberate deception reveais the District's minc{set. It was all completely unnecessary. Superintendent Davis would have rvillingly accepted service at any time. The same pattem is manifested in the District's overreaction to Superintendent Davis' written communication through her counsel last Wednesday afternoon, that if her leave of absence was voluntary, then she was voluntarily returning to work. 'fhat statement resulted in a Monte Python type of reaction to shut buildings down and keep employees at home fbr two days, at who knows how many multiple thousands of dollars of taxpayer expense. This was fbllowed by a written concession frorn District Counsel that contrary to its l'onner public statements, the District hacl, indeed, insisted on the leave of absence as a conclition for negotiating a settlement, and was continuing to insist that Superintendent Davis remain on that leave of absence, Superintendent Davis complied with that instruction after receiving it, and informed the District just a few hours later that she woul<1 not be returning to work, but the District had already issued instructions to close the buildings and keep e6ployees home, This was all political theatre for the obvious purpose of enabling the f)istrict to accuse Superintendent Davis of wasting taxpayer money. Also, the .Iune 13 letter states that the District had received the doouments ostensibly suppolting the charges on May 29,2019; and, when served with the June 13 letter, Supelinteirdent Davis was also infor,med that each of you had received the package earlier that week. The only possible purpose for the District intentionally to delay serving Superintendent Davis was to provi<le her the minimum 5-working day notice required by the Open Meeting law for a June 21,2019 meeting. From May 29 to June 13, no one fiom the District confronted Superintendent Davis, or to our knowledge, Dr. Green or Mr. Lasic about these documents, ot the inferences being clrawn fiom them, oi askecl for any explanation or clarifying information at all. Instead, when the June 13 letter was clrafted (presumably by counsel), the opinion attributed to outside cotmsel Anthony Ilall that " the eviclenle indicates that [Sttperíntendent DavísJ played a role in Lasic, Green, and ILicci's actions" had been transformed and recast into "substantial evidence that fSuperinlendent DavisJ you provided ãccess to said inþrmalion, " Furthermore, contrary to the District's repeated representations to the public, Superintendent Davis did not request a leave of absence. After being retained by Superintendent Davis on Monday, June 17, I called District Counsel Rombardo, informing him that I was reviewing the matter and suggested that something might be worked out, but more time was neecled as I could not review the 200+ pages of documents, conduct meaningful settlement negotiations, and prepare for a Friday hearing all at the same time. We reached an accomrnodation to vacate the hearing, provided the clients agreed. 1943 t;ù5(:-9{t21
  37. 37. 1^ì 11 ,f-TrIf, 1 Srlr:ll tlt W tlÏìlef ¡is.i3r)ij.tà 9ó21 June 27 ,2419 Page 5 I called Counsel Rombardo a shoft time latcr to confinn Superintentlent Davis' agreement at which time he stated that Board President Holland would not agree unless Superintendent l)avis also agreed to take an immediate leave of absence usitrg lrer own vacation or paid time off until June 30,2019 , Thx l}-day period was intended to providc the time to negotiate a resolution of this matter. Superintendent Davis agreed to the "leave of abseuce" condition; but when I called Counsel Rombardo later that day to infcrrm him, he told me that Board President Hollancl now den1anrlerl that St4lerintendent Davis agree not to a I}-day but rather an "indcfinite" leave of absence. In Presidènt Hollald's interview with the Reno Gazette Journal, she expressly described the leave as indefinite. The reason Counsel Rombardo gave was to allow the time to schedulc and notice a luture hearing in the event negotiations failed and we were unable to resolve the matter by June 30,2A19, but assurances were provided that effbrt would be made tr¡ reschedule such hearing for July, With these assurances, I went back to Superintendent Davis and she agreccl to an "indefinite" leave of absence. When I let Counsel Rombardo know that Superintendent Davis had agreed to this new condition, he asked that i confirm the leave of absence in an email specilìcally rnentioning Board Policy 9082. Although it appears in hindsight to have been a set-up, at the time, in good faith, I did as I was asked ancl sent the confirming email on Monday aftemoon, June 17. 'Ihis exchange is documented in Exhibits 1.2 and3' Although my "confirming" email came late in the day, the District immediately tcrminated Superintenclent Davis' email service, not the ordinary practice with a voluntary leave of absence, and served (obviously previously preparecl) tetmination letters on l)r' Green and Mr' Lasic, Exhibits 4 and 5. l'he fbllowing morning (Tuesday, June 18), Counsel Rombardo accused me and Superintendent Davis of leaking information to the press. He described a telephone call received by cxe of you the previous evening from a newspaper reporter. Counsel Rombardo advised me that this "leak" hacl "çratered our negotiations before they even begin," that the District would put out a statement, and that fuilher leaks would terminate all further discussions. Exhibit 6. I respor,ded later that moming denying that Superintendent Davis or I were the source of the leaks because we were not, pointing out that public disclosure was inevitable in any event wlrich I stated "wcts es it shottfuJ be," anð intbrming Counsel Rombardo that I hacl already prepared a response to the June 13 letter which I was holding in abeyance pending negotiations and that I wanted to send it right away if negotiations had "cratered." I further stated that I would send a proposed settlement "very soon" if "lve were still negotiating." Exhibit 7. As noted above. our agreement to attempt to reach a negotiated settlement had rnade June 30, 2AI9 the deadline. In that response as well, I reminded counsel Rombardo that a newspaper reporter had apparently showeã up for a9 a.m, meeting at the District pointing out that neither Superintendent
  38. 38. Snell &T{/iån eo June 27 ,2019 Page 6 Davis nor I could have le¿rked the inlormation about that meeting since we were not aware of it. I also commented about thc District's lermination of Mr. Lasic and Dr. Green ancl stated thal "l assumed thaÍ îhis [the termination of Lasic and Green] wa,g the reql reason for the requested leave of absence. " I made this assumption because notwithstanding Board President Holland's June 13 letter to Superintendent Davis directing that she not make any personnel decisions or staffing changes of any kind pending the June 2l hearing, President Holland had countermandecl those directions in an email to Superintendent Davis on Friday night, June 14,2019, advising her to terminate Mr. Lasic and Dr. Green immediately. Exhibit 8, Superintendent Davis understands that the District can terminate her Employment Agreement, that a majority of the Board is prepared t() approve that termination, and that the issue is the severance provision under the Agreement. Superintendent Davis had no reason to request a leave of absence but, at the same time, no reasoll not to agree to a leave of absence as the District's condition for entering negotiations, which the District now concedes. When Board President Holland emoncously intbrmed the public that Superintendent Davis had requested the leave of absence without ofTering her reasons, that she (Holland) wanted to give Superintendent Davis time to think, and that she (Holland) was unaware of any investigations regarding Mr. Lasic or Dr. Green, or the rcasons for their termination, it occured to me that the information and documents provided in the Ricci litigation had presented an opportunity for the District not only to fire Dr. Green and Mr. Lasic but to oust Superintendent Davis as well without paying the sevelance required by the Superintendent's Employment Agreement. This notion of a scheme, or opportunity to oust all three was fuither reinforced when Board President Holland informed the public that she was re-noticirig the public hearing because Superintendent Davis and her legal couns el ".faíled to comply wilh tlte most b*sic requests for a timely response. " This naruati.r,e of voluntary leave was repeated by the WCSD in interviews, and in publicly released statements lending credence 1o the proposition that the immediate leave of aþsence was <lemanded to remove'fraci Davis immediately to enable the immediate fìring of Lasic and Green, which is what, in fàct, occurred, In point of fact, two proposals had been provided to the l)istrict befole that public statement, and the District had not responded to either of them. Those proposals are attached (Þlxhibits 15 and 16). The ftrst was promised to be delivered not later than Friday morning, Jvne27, r,vhich occurred. When there was no response to that proposal, I provided a second proposal that afternoon. Instead of responding, the District asked me to accept service of thc June 21 letter resetting the hearing f'or July 7,2019, fbllowed by the statement quoted above fi'om Board President Ilolland to the public asserting Superintendent Davis' and my "failure" to "comply with the most basic requests for a timely response." That slatement was patently untrue. 4843-9$56-96?1
  39. 39. &xz*lL **V/itrçu*, -.1.,i Jvne 27 ,2019 Page 7 The parties agreed to negotiate until June 30 at Superintendent Davis' expense fbllowed by a resetting of ttre hearing fbr somc time in July if negotiations fäiled. On behalf of Superintendent Davis. I provicled two proposals within 7 days of the time she was suved and wiit1in 4 days of hiring counsel. The District respondecl to neither proposal but Boarcl President Holla¡d inior:¡ed the public that, because the District had reccived no response, she was compellecl to reset the hearing. l'he only explanations f'or this discorrnect are either an inexplicable failure of comrnunications inside the District or a clesire to complete the originai plan to terminate Mr. Lasic, Dr. Green and Superintendent Davis' As air attomey who deals in fäcts and evidence, I am not a conspiracy theorist. Flowever, the provably faise rliÁclaimers of any knowledge of fàcts regarding any investigations into Dr' Greln and Mr. Lasic cçinciclent with the olaim that Superintendent Davis took a'ovoluntary" leave of absence, gives me pause, In truth, as known to all the members of this Board, Dr' Green was extensively investigated and had filed his own claims that the District settled in March of 2O1g . A copy of the settlerrent agreement is attached as Exhibit 17 . ln that settlement, the District ugoLd, in exchange for Dr. Green's agreement to no monetary payment, that it rvould "close all current an<l currently-contemplated investigations. . . and [lvould] not subject Dr. Green to any discipline as a result of any such current ancl cnmently contemplated investigations." The agreement continnes as follows: For purposes of olarity, the curently contemplated investigations conçeut: (a) the source of information Dr, Green had concerning a personnel matter between Dr' McNeill and her assistant; (b) communications concerning the conelusions of the Solutions at Work investigation to Dr' Green before it was final; (c) oommunications with Ms. Rioci about the issues and facts being investigated by Dustin Grate fan investigator for outside counsel Anthony Halll; ancl (d) documents used by Dr. Green in support of his public records request. Dr. Green was oftìcially forgiven and excusecl from lhe same claims for which he has now been terminated. It is naturaily problematical to fire an employee for alleged misconduct frorn which he was expressly exct seà as part of the consideration for an agreement, but that is a matter for Dr. Gree¡'i attorney to address. I am infor¡necl that the Members of this Board were not only awarc of the Gree¡r settlernent agreement, but further convened a meeting expressly to discuss incidences of ,,leaks" regãrding the Ricci and Green investigations in late 2017 andlot early 201g. It is m¡, understanãing tñat the Members of this Board including Board President l{olland were informed at that rneetiirg that Mr. Lasic was leaking information to Dr. Green. While this Board and the Oflice of GenJral Counsel (or its outside counsel) were aware of these collateral 4È41-9056-962'l
  40. 40. 4t f r'Yr?,1 $r'rclI Ò¿- Vt¡rhlrcr June 27,2019 Page I farcts, uo one botherecl to inf'orm Superintendent l)avis, who h¿rd been recused fiom the investigation of Green's claims. Superintcndent Davis was never made aware of the settlement, or the circumstancçs surrounding it, including that Mr. Lasic was leaking information to Dr. Green. It appear's that everyone was aware that Mr. Lasic was leaking iniìrrmation to (ireen by the first quafter of 2018 except Superinlendent Davis. She did not learn of the Settlement Agreement until she called Dr. Green to let him k¡ow that she had been advised by Board Ptesident Ilolland to fìre him immcdiately. At that time l)r. Green tolcl Superintendent Davis that he had a settlement agreement in which the District had agreed he would not be disciplined regarding those leaks' This Board and f)istrict Counsel and Staff, excluding Superintendent Davis, have known that Mr' Lasic had leakecl confidential information to Dr. Grccn fb¡ some 15 rnonths, The issue apparently dicl not generatc enough concern even to call fbr ftuther investigation, However, now that Superintendent Davis has conveniently been accused of being the source of'the leakecl infomration, the matter is "urgent" and requires a hearing on limited evidence and minimal notice. Why is it that District leadership, including General Cor¡nsel Rombardo and Dr. Green's supervisor, Kristen McNeill, were awat'e of leaks in early 2018 and negotiated a settlement rvith a suspected perpetrator of such leaks, but Superintendent Davis was kept in the dark? Why is it rhat the District's investigation of'those leaks in 2017-2A18 did not identify Superintendent l)avis, yet she is now accused of being the source? Why, after District's receipt of the documents in the Board packet in late May 2019, did no one even ask David Lasio, the presumed source of thesc leaks, how he acquired the confidential information? Why is it that no one asked Dr. Green, the reoipient of the information, and also an employee, where and how he got the inf'ormation? Employees are requirecl to answer such questions and can be {ìred without risk, for not cooperating or failing to give full and truthful answers. Instead, when it received the documents (whioh contained no new informaticln), the District saw and grabbed the opportunity to fire Mr. Lasic, Dr. Green and Superintendent Davis. The actions of the District here give the lie to their accusations against Superintendent f)avis' A termination for cause is governed by Seotion 10 of Superintendent Davis' Employment Agreement, a copy of which is included in your Board packet. Section 10 defines "Cause" as: ( 1) a conviction , . . of any felony or gross misdemeanor of a crime of moral turpitude, or clriving while impaired, (2) any act of dishonesty or fraud, embezzlemeut, theft, unethical conduct in the perfbrmance of duties and responsibilities under the agreement, (3) failure to maintain Nevada Department of Education licenses, (4) failure to repoft any violation by Davis of law or policy that other employees are required to report and for which they could be terminated. and 1743-9r.)ií.9(t21
  41. 41. Sslell &Wilmer June2l,2019 Page 9 (6) any reason constituting Cause as clefìned by Nevacla 1aw.2 'l'he Nevada Supreme Court has defìned cause for tetmination of a public official as: . . . legal catße, and nol any cause whicÌt the fficer aulhorized lo make sucÍt removal may deem sufficienl. It is implied thaî an fficer cannol be removed at the rnere will of the fficial vested with the power of removal, or without any cause. The cause must be one which specifically relates to and afects the administration of the ffice, and must be restricled to something of a substanlial nature directly affecting the rights and interests of rhe public, The cau.se musl he one louching the qualíficulions of the rfficer or his perþrmance rf his duties, ,vhov,ing that he is not afit or proper person to hold the ofiìce. An aÍternpt to remove an ofrìcer for any cause nol affecting his competency or.fitness would be an excess of power and equivalenl lo an arbitrary remaval. Lapinski v. City of Reno, 95 Nev. 898, 901-902, 6A3 P.2d 1088 ( 1979) (quoring Ex rel. Whalen v. llelliver,60 Nev. 154, 158, 104 P.2d188. 190-191 (i9a0); Harclisonv. Carmany, SS Nev, 670, 676-677,504 P.2d 1, 5 (1972). 'I'he June 13 and June 21 letters allege none of these things, except perhaps to characterize the allegatiCIn that Superintendent Davis provided Mr. Lasic with "access" to confidential infiormation as an act of "dishonesty." Section 10 is not even referenced in the Notice, and none of the allegations of breach of fîduciary duty, failure to ftrllow Board policy. etc. would support a termination for Cause under that Section of the Employment Agreement. In short, the charging document is clefective. ln Lopinski, the Nevada Supreme Court further held that, when a public body holds a public hearing on the possible termination of a public off,rcial, the public body is "obliged" to provide a "substantially fair hearing" and that the burden of proof is on the public body to prove that "legal cause" exists for the termination. 95 Nev. at 901 , 603 P.2d 1088. No one could confuse the minimal notice or the allocated 20 minutes to "respond to the information presented, present written evidence, provide testimony, and present specific witnesses" with respect to 17 separate charges (about 70 seconds per charge) with a "substantially fair hearing." With respect to the 17 charges, it should be noted that NRS 391.750 is not applicable to superintendents and that the Employment Agreement expressly provides that Superintendent Davis is excluded from the due process protectious of NRS Chapter 391.750.In addition, the 2'fhere is no "5," 4843-9056-9621
  42. 42. f1 fl ar'r"1 Sncll ( Wrlniei'I i"ll June27,2A79 Page 10 ref.erence to Superintendent Davis having violated her contract to "well and faithfully dedicate all ol fhcr] profbssional timc and attention for the sole benefit of WCSD" intentionally ornits the remainder of that provision which slales"and to orfor no other employment, professional ende¿wor or personal business /br prctfit. " Superintendent Davis has no "othcr employment, professional endeavor or personal business for profit" and no facts have been alleged to the contrary because no such fhcts exist. It should also be obvious that accusations of: (1) failing to build and maintain a collaborative and cooperative working relationship with the Board in the best interest of WCSD, (2) fostering and managing a spirit of cooperation and collaboration between WCSD staff ancl the board, (3) failing to meet fiduciary cluties under the law, and (4) failing to follow board policies and adrninistrative regulations cannot be sustained on the sole factual allegation here that Superintendent Davis provided confidential information or access to such infbrnlation to Mr. Lasic The June 13 and June 21 lettcrs report that District outside counsel Anthony Hall had stated, in a startling waiver of the District's attorney-client privilege in ongoing litigation, that Mr. Lasic assisted Ms. Ricci and Dr. Green in responding to District investigations and in formulating their complaints against the District and that Dr. Green persisted in a pattern of harassment, intimidation and insubordination. The June l3 and June 21 letters then attribute all of these irnproprieties to Superintendent Davis, without any evidence whatsoever. Mr, Ilall's accusation that Mr, Lasic passed on confidential inf'ormation to Ms, Ricci ancl Dr. Green is likewise imputed to Superintendent Davis without a shred of evidence to support it. Superintendent Davis passecl on no information. The fact that she possessed or had access to such information or was included in group emails containing such information does not create any infbrence that she communicated or leaked such infbrmation to anyone, except to those already inclined to rnake such a fìnding for reasons of their own, which have nothing to do with the uuth. The documents providecl in the Board packet that purportedly establish that Superintendent Davis provided conhdential infomration or access to such information to Mr, Lasic do no such thing. I'hose documents contain no infbrmation whatsoever that Ms. Davis provided confidential information or acccss to such information to anyone at all. In fact, the most striking document in the entire package is a cornplaint by Dr. Green that all the questions put to him during his interview by the investigator "seemed îo target lhe Superintendent, and I ant concerned about this line of questioning." Dr. Green's impression is borne out by the June 13 and June 21 letters, which contain no facts establishing Cause to tenninate Superintendent Davis in any way and which strongly sllggest that the Board is solely interested in avoiding the District's obligation under the Employrnent Agreement to pay her severance for a termination without salrse. 4ì43-9ù56-')1,7,1

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