Blanck v. Hager, No. CV-N-04-0051-PMP(RAM).

• Decision Date: 14 February 2005
• Docket Number: No. CV-N-04-0051-PMP(RAM).
• Citation: 360 F.Supp.2d 1137
• Parties: Jeffrey BLANCK, Plaintiff, v. James L. HAGER, an individual; Washoe County School District, a political subdivision of the State of Nevada, Defendants.
• Court: U.S. Court of Appeals — Third Circuit

360 F.Supp.2d 1137

Jeffrey BLANCK, Plaintiff, v. James L. HAGER, an individual; Washoe County School District, a political subdivision of the State of Nevada, Defendants.

No. CV-N-04-0051-PMP(RAM).

United States District Court, D. Nevada.

February 14, 2005.

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Shannon M. Bryant, Shannon Bryant, Law Office Of, Jeffrey A. Dickerson, Jeffrey A. Dickerson, Reno, NV, for Blanck, Jeffrey, Plaintiff.

Brad M. Johnston — 008515, Hale Lane Peek, Dennison & Howard, Reno, NV, for Hager, James L., Washoe County School District, Defendants.

ORDER

PRO, Chief Judge.

Presently before the Court is Defendants' Motion to Dismiss or in the Alternative for Summary Judgment (Doc. # 15) filed on August 20, 2004. Defendants also filed Defendants' Statement of Undisputed Material Facts (Doc. # 16) on August 20, 2004. Plaintiff Jeffrey Blanck ("Blanck") filed Plaintiff's Opposition to Motion to Dismiss or in the Alternative for Summary Judgment; Alternative Request for Leave to Amend (Doc. # 18) on October 12, 2004. Defendant filed a Reply (Doc. # 24) on November 29, 2004.

I. BACKGROUND

Defendant Washoe County School District ("Washoe") began a search for general counsel in 2003. (Defs.' Mot. to Dismiss or in the Alternative for Summ. J. ("Defs.' Mot. to Dismiss"), Ex. 1.) In the job announcement circulated for the position, Washoe described the job as, "a full-time, at will, administrative position serving at the pleasure of the Board of Trustees." (Id.) The job description of the general counsel included a variety of functions, including: the general counsel was to advise the Washoe County School Board of Trustees on legal matters; research and answer a variety of legal questions from the Board, Superintendent, staff, and public; represent the District in administrative and judicial hearings; review and draft legal documents; monitor legal cases, claims suits, and grievances; ensure development maintenance, and monitoring of due process procedures for students; assist in personnel and labor negotiations; conduct programs of preventative law; coordinate and assist with outside counsel; and provide legal assistance in the drafting of proposed state legislation. (Id.) Plaintiff was hired for the position of Washoe County School District's general counsel in 1998. (Id. at 2.)

Plaintiff commenced his employment for Washoe on January 15, 1998. (Defs.' Mot. to Dismiss at 2.) Plaintiff entered into a subsequent employment contract with Washoe on July 1, 2000. (Defs.' Mot. to Dismiss, Ex. 2.) The relevant portions of the employment contract provide:

2. Employee shall be a full-time employee and be entitled to twenty (20) days of vacation per year, and two (2) Administrative Leave days per year. Employee shall be allowed to accrue up to a maximum of sixty (60) days vacation and four (4) days Administrative Leave. Employee shall also be entitled to accrue sick leave at the rate of fifteen (15) days per year. After Employee has worked ten (10) years for the District, he shall be entitled to receive payment of twenty-five percent (25%) of the accrued sick leave upon separation from the District.

. . . . .

4. Employee shall be entitled to all medical, dental, vision and other benefits as set forth in Exhibit "B" attached hereto. Additionally, employee is entitled to participate in the Administrator's Benefit Reserve Program or Longevity Bonus Program. Because employee holds a Juris Doctorate Degree, he is entitled to an annual stipend of One Thousand Dollars ($1,000.00) per year. Additionally, employer shall pay for all annual Bar fees, continuing legal education classes and related travel expenses. In addition to these benefits, employee is entitled to any and all benefits given to Administrators employed by the District, as provided through a Collective Bargaining Agreement.

5. All provisions of NRS 391 pertaining to Licensed Administrative Employees, including but not limited to discipline, dismissal and contract renewal shall apply to General Counsel.

6. For the purposes of this Agreement, the General Counsel is deemed to be the equivalent of an Area Superintendent and is entitled to all salary and benefits associated with the program.

(Defs.' Mot. to Dismiss, Ex. 2.) Defendants allege that Plaintiff drafted and prepared the employment contract and did not advise Washoe to seek outside counsel to provide independent legal advice regarding the agreement. (Defs.' Mot. to Dismiss at 2.) Plaintiff does not respond to Defendants' allegations on this point.

Section 5 of the employment contract provides that Nevada Revised Statute 391 shall apply to Plaintiff, as general counsel. Nevada Revised Statute 391 is a statutory scheme which was developed to provide objective evaluation of teachers and licensed administrators in the public school system. N.R.S. 391.3125. Under Nevada Revised Statute 391, Administrator is defined as, "any employee who holds a license as an administrator and who is employed in that capacity by a school district." N.R.S. 391.011(1). Should a school district intend to dismiss an employee, N.R.S. 391 provides for the right to notice and certain procedures prior to disciplinary action. N.R.S. 391.317.

It is unclear to what extent Plaintiff was permitted to perform all of his defined duties. (Pl.'s Opp. to Mot. to Dismiss or in the Alternative for Summ. J., Ex. 1.) Plaintiff states in his sworn affidavit that Defendant James L. Hager ("Hager"), the Washoe County School District Superintendent, prevented him from performing the full extent of his duties, and that at no time did he make policy for the school district. (Id.) Specifically, Plaintiff states:

I made no policy at the District. My authority to act was subject to Board approval on the majority of my job. Hager and Board members, as well as the Risk Manager for the District, should agree that I could give legal advice only when asked to do so, and that such occasions were limited in number and scope.... I had no authority to speak for Hager and the Board. The District spoke through Hager or the Communications Officer. I had no carte blanche authority to settle cases or to bring cases to litigation, and had to seek and obtain that authority on a piecemeal basis. There could be no public perception of myself as a representative to the District, as I was never at the forefront as such. I had no influence over programs or their implementation. I could advise as to legal requirements, but not as to policy matters. I had no official contact with elected officials except to testify before the Legislature as to the merits of the statutory cap on damages against governmental entities and officials....

(Id.) On November 3, 2003, Defendant Hager issued Plaintiff a letter regarding Plaintiff's job performance and conduct, stating Plaintiff had engaged in insubordinate and unprofessional conduct. (Defs.' Mot. to Dismiss, Ex. 3.) The letter set forth issues Hager deemed necessary to resolve in order for Defendant Washoe to continue to employ Plaintiff.¹ (Id.) The correspondence concluded:

The relationship of attorney-client is one based on trust and confidence. Your actions over the past several months have breached that trust and I have thereby lost confidence in your loyalty to WCSD and me, your supervisor and the WCSD representative. Your above described actions also demonstrate a severe lack of sound judgment, particularly for a general counsel, a position of high trust and confidence.

I would like to meet with you on Friday, November 7, 2003 at 1:30 PM in my office to discuss the issues, which are set forth above and provide you with an opportunity to respond. Stephen Peek, special counsel to the WCSD, and Laura Dancer will be in attendance at this meeting. If you would like to have a representative at this meeting, please advise me no later than Thursday, November 6, 2003.

(Id. at 3.) In a letter dated November 14, 2003, Plaintiff responded to Hager's letter stating that Hager's allegations were malicious and unfounded. (Defs.' Mot. to Dismiss, Ex. 7.) Additionally, Plaintiff stated that Hager had not explained the purpose or intent of the meeting, including whether it was to discuss termination and whether Washoe recognized his status as an Administrator under N.R.S. 391. (Id. at 4.)

On November 19, 2003, Plaintiff met with Hager, Special Counsel Stephen Peek ("Peek") and Assistant Superintendent, Human Resources, Laura Dancer concerning the issues raised in Hager's November 3 letter. (Defs.' Mot. to Dismiss at 5.) In a memorandum dated November 19, 2003, Plaintiff directly responded to Hager's November 3, 2003 letter by categorically denying all allegations made. (Defs.' Mot. to Dismiss, Ex. 8 at 1.) Plaintiff argued that pursuant to his employment contract, Hager does not have the authority to conduct any discipline regarding Plaintiff's performance, but rather only has the power of evaluation. (Id.)

Following this hearing, on or about November 21, 2003, Plaintiff filed a criminal complaint against Hager, alleging that Hager had illegally misappropriated district funds to the United Way totaling $2,200, and to the Foster Grandparent Program totaling $5,000. (Defs.' Mot. to Dismiss at 5; Ex. 10) On December 16, 2003, Washoe issued a letter concluding that "the allegations were unfounded and/or of no substance." (Defs.' Mot. to Dismiss, Ex. 9.) On January 9, 2004, the Washoe County District Attorney issued a no-issue memorandum declining to issue a criminal complaint in the matter. (Defs.' Mot to Dismiss, Ex. 10.) Specifically, the memorandum stated that "contrary to Mr. Blanck's opinion, I do not find any evidence to support the allegations. The Board of Trustees properly exercised their authority to authorize all of the conduct complained of." (Id.) On June 21, 2004, Plaintiff filed a Petition for Grand Jury Investigation, alleging misuse of bond...