VIRGIN VALLEY WATER DISTRICT REGULAR BOARD MEETING
VIRGIN VALLEY WATER DISTRICT OFFICE
FEBRUARY 2, 2010

Minutes of a Regular Board Meeting of the Virgin Valley Water District Board held on February 2, 2010, at the Virgin Valley Water District Office at 3:00 p.m. Attending were President John Paul, Vice-President Karl Gustaveson, Secretary-Treasurer Kenyon Leavitt, and Board Members Ted Miller and Mark McEwen. Also present were Michael Winters General Manager, Bo Bingham and Eric Wilbanks District General Counsel, Michael “Boomer” Johnson Chief Hydrologist and Mary Johnson taking minutes and other interested parties of agenda items.

President John Paul called the meeting to order at 3:00 p.m.
Kenyon Leavitt offered a Prayer and Ted Miller led the pledge.
Public Comment – Don Paff offered comments on Cecil Leavitt’s service as a board member.

Discussion: Board Comments - None
President of Board Comments – John Paul read a prepared statement that was added to the record as part of this meeting. John stated that the board was determined to be an “informed” board and procedures followed in the past were no longer to be followed. He continued to state that the board must set policy and that they were ready to lead. John gave examples of where the board was not properly informed and of the problems that have occurred because of the lack of communication and that the board “must direct” from this point forward.

CONSENT AGENDA:

Karl Gustaveson stated that he wanted the minutes from the previous meeting held back and reviewed by counsel against the tape because of statements made by staff that were not in the minutes and have these minutes come back at the next meeting for approval. Karl further requested that item “6” be pulled and brought back at a later date.

John Paul would like item “4” moved down to be heard after item “9”.

Karl Gustaveson made a motion to approve the consent agenda as listed below with item “6” being removed and brought back at a later date or the next meeting for a date certain and have the minutes brought back after reviewed by legal counsel against the tapes and the full minutes reflected in the minutes and that agenda item “4” be heard after item “9”. Ted Miller seconded this motion and it was unanimously carried. 5-0

1. Discussion & Action - Approve Agenda – Item “6” removed. Item “4” to be heard after item “9”.

2. Discussion & Action – Approve Minutes from 01/19/10 Regular Board Meeting – Held back until reviewed by legal counsel against the tape and the full minutes reflected in the minutes.

3. Discussion & Action – Approve Bills Paid - $561,487.50

** End of Consent Agenda**

5. Discussion & Possible Action – Consideration to Approve Use of Proposed Public Records Request Form

Bo Bingham stated that per NRS the VVWD is considered a public entity and all information obtained and records kept are considered public information except those considered through litigation or privileged or confidential. Previously the District did not have a way for the public to come in and make that request with a specific form so counsel prepared this form for the board’s review so that those requests can be made and be tracked.

Kenyon Leavitt made a motion to approve the use of the proposed Public Records Request Form as posted. Karl Gustaveson seconded this motion and it was unanimously carried. 5-0

7. Discussion & Possible Action - Performance Evaluation of, Michael Winters, General Manager. Possible Action May Include, but is not Limited to, Termination, Suspension, Demotion, Reduction in Pay, Reprimand, Promotion, Endorsement, Engagement, Retention, Salary Increase, or ‘No Action’. (The Board of Directors May Consider Character, Alleged Misconduct, Professional Competence, Physical or Mental Health Pursuant to NRS 241.031.)

Bo began by stating that it was his understanding that reviews in the past have taken place for Mike Winters, and Mike Johnson as well, and that they were formally operating under employment agreements until they were governed under the Administrative Policy and Procedures Manual that was adopted November 4, 2008. Bo further stated that the verbiage of the agenda item comes directly out of the Open Meeting Laws established by the Attorney General.

Karl Gustaveson started out stating that he had a number of concerns concerning Mike Winters. His concerns consisted of previous experiences and the processing plant to purify water that was originally to be built at the well #27 site on the 18th hole of the Oasis Golf Course. Karl stated that he sat on the Mesquite Vistas HOA Board and that Mike had not bothered to look at the CC&R’s and that there was a long period of time before he went before that HOA that governed the property in question. Karl stated that the association was willing to work with Mike, but there were issues with architectural issues and then digging started one weekend without the approval of the Mesquite Vistas HOA Board and the City of Mesquite without having a building permit. Karl stated that he has concerns with Mike’s “go ahead and fix it later attitude” and the costs to the ratepayers. Karl stated that he appreciated the fact of Mike’s many years of service to the District and that his attitude may have worked in the past, but that it doesn’t work now. Karl also mentioned his concerns with the well that was drilled without BLM approval and the arsenic plant that was built off Falcon Ridge Parkway on land that is currently owned by the City and previously owned by the BLM and the delays incurred because of problems with the proof of ownership of the property. Karl also stated his concerns on the communication tower that was built without BLM approval and fees associated that the District will now have to pay to BLM and possible repercussions with the agreement between the District and Rebel Communications.

Mark McEwen questioned the time frame on Karl’s concerns regarding the Mesquite Vistas property and the Falcon Ridge Plant.

Ted Miller stated that he would like to review Mike’s leadership with the District since he’s been here. Ted stated that Mike’s first “big (unintelligible), or whatever you want to call it”, was when he and his staff failed to get paperwork correctly done for applications to get water out of Tule Desert or Basin 221 and that the District has spent hundreds of thousands of dollars on this issue. Ted further stated that next, Mr. Winters went over to Arizona and says “well we’ll get some of your water” and reverses it. Ted further commented that his wife received a phone call and was informed that the only way you could get anything done over there was to use a company that Mike Winters approves of so he can get kick backs from them and then Mike was in Arizona telling them that we didn’t need their water. Ted continued, stating that Mike informed the board that the only place you could treat water for arsenic was at the wellhead referring to the property Karl talked about on the 18th hole of the Oasis Golf Course owned by Ted Lee and the problems that occurred at this property and then having the arsenic plant actually built on property on Hardy Way, that is in question itself. Ted further commented on the construction of a new building and after he thought that constructing a new building was dead, an item was on the next agenda and 16 contractors showed up that had answered a bid to construct a new building for the District. Ted then commented that he had spoke to Mike regarding the chief hydrologist receiving huge outside consultation fees while employed by the District and that maybe we should move him from a full-time employee to a 1099 employee because we could be held liable for him and be sued and Ted stated that Mike said not to worry because as a government entity we could not be sued for over $50,000 and our insurance will pay it. Ted made further statements regarding attorneys and Mike using George Benesch when Bingham & Snow were to be the District’s sole attorney; the costs of legal fees; Mike and his cronies reversing their stand on Basin 221; the debt of the District; a rate study being conducted; and finally stating that Mike Winters should be replaced.

Mark McEwen, after listening and taking notes, stated that he would like to comment and stated that he resents some of the statements made by the two other board members and that this evaluation should be based on job performance and not character. Mark repeated some of the statements made and stated that these were completely out of the realm of what we should be talking about and resents the fact that words like the ones he repeated were being used to discuss a man’s 16 year performance. Mark further stated that he wanted to make it perfectly clear that he is neither saying that Mike Winters should be here or not be here, but he is here to listen to the facts and the facts are what should be considered.

Kenyon Leavitt stated that he has sat on the board during all the situations that Ted and Karl talked about and that he doesn’t remember it the same way that they saw it. Kenyon further stated that Mike should have a chance to address those issues and that he knows that Mike hasn’t done everything correct, but has everyone else done everything correctly. Kenyon brought up the fact that Mike stated at the last meeting had secured an additional 1.2 million dollars from the ACOE for the drilling of well #34 and the money brought in for the construction of the arsenic treatment plants.

Karl again remarked on Mike and Boomer’s 180° change regarding Basin 221. Bo remarked that after the last meeting, and knowing the board’s concern, he contacted Mike Wolz, attorney for State Engineer, and was informed that no determination has been made, including Vidler litigation. Karl continued, commenting on e-mails he had in his possession regarding land purchased for the arsenic plant and water purchases. Karl further stated that he appreciates the comments about receiving the grants and that he has been attending meetings since last July and the boards’ frustration with agenda items and how the board works with staff. Karl further commented on facts that have been hidden; that the board should be beholden to the rate payers; that we can’t go on with bickering between communities; and that he can’t support Mike when he is not credible or honest.

Brett Whipple, attorney for Mike Winters, asked to address the board. Bo commented on NRS and why Mike had to be evaluated in an open meeting and that Mike had a right to an attorney present. Brett stated that he has had an opportunity to visit with Mike Winters and that Mike’s intent has always been to do the best for the board and citizens and that this was a difficult situation. Brett further stated that he wanted to be fair to the process and stated that a criminal investigation was mentioned and wanted it known that he had an opportunity to go to Mr. Scott Mitchell and inquired about the grand jury investigation and was told that was not true and that the information was before David Rogers and his team of attorneys and they would make a determination to file charges and that the grand jury has nothing to do with this. Mr. Whipple further stated that Mr. Winters has done everything he could for the betterment of the community; has brought in millions of dollars; and if you look at the evaluations over the last three years, that they are all positive reviews so why now is this an issue and not then.

Ted questioned Brett Whipple and who was paying him and he answered that Mr. Winters was. Ted stated doesn’t that say volumes that Mr. Winters has to hire an attorney to represent him to the board. Mark stated that he was looking for fairness and Ted warned Mark about where he was at there. Bo recommended that the board and the public wait to speak until the President, John Paul, recognizes you.

Mike Winters stated that he would like to address many of the accusations made tonight, but he would like an opportunity to prepare that information for the board. Mike further stated that Mr. Miller’s and Karl’s accusations are not correct and not as they portrayed, and he would like to prepare a statement for the board.

With no other remarks from the board, John Paul said he would send it to the board for a decision and Kenyon asked if John didn’t have something to say. John Paul proceeded saying this would go back three years and that time and time again he faced a problem of not believing what was being told to him. John recognized Mike’s 16 years longevity of service, but also recognized how it got started and grew. He mentioned that many times he has said that Mike Winters’ water delivery service has been acceptable and a very good job, however, the other aspects of a general manager’s duties was administrative ability and to handle things that didn’t exist 16 years ago and as the community grew and his occasions to learn to do things
administratively, Mike didn’t grow. John further mentioned instances of where he has wanted Mike to grow administratively and he hasn’t.

Mark McEwen asked Mr. Winters what the mitigating circumstances would be if the board voted to fire Mike and that he was not choosing to make any remarks on comments made and he doesn’t have anything to refute on the comments made.

Mike again stated that was why he wanted to be able to listen to the tape and pull records to answer the allegations. Mark then asked if Mike would answer his questions and continued to ask about the processing plant and the construction beginning before a permit had been issued and Mike stated that Longview Construction began digging without permission from him, Bowen & Collins or MMC. Mike further stated that the District had a lease agreement with Mr. Lee and that Mr. Chandler worked with the HOA. Mark asked about the plant off of Falcon Ridge Parkway and the remarks made about working with the City and Mike stated that he works well with all departments. Mark then asked about the communications tower and Mike answered that he had put a fence outside ROW because of security issues. Mark continued with questions regarding the water applications in Tule Desert and the expediency of giving George Benesch $16,000 to file applications and Mike explained.
There was further discussions’ regarding the applications, the communications tower, the arsenic plants and legal counsel.

John Paul opened the item to the public and Mike Chandler with Bowen & Collins commented and offered another perspective to Longview Construction’s breach of contract on the arsenic plant. Harold Surgeland questioned the original date of filing and Bo answered. John Paul then closed public comment.

Ted Miller made a motion, in as much as the general manager is an “at will” employee of the board, that they replace Mike Winters as General Manager of the Virgin Valley Water District. Karl Gustaveson seconded this motion.

Kenyon questioned if the motion was to get rid of Mike completely from the Water District or as just the general manager and Ted responded that the motion was to replace Mike Winters as the general manager and the next general manager would determine if we should hire Mike in some capacity. With no other questions, John Paul called for a vote.

The motion passed by a vote of 3-2 with Kenyon Leavitt and Mark McEwen opposed.

Bo stated that before you move to the next item and based on the recent action of the board of terminating immediately, you may want to decide how this is going to be done. Bo stated that Nevada Law is pretty specific on what happens when terminating an employee and some of these issues should be addressed.

Ted Miller stated that in the interim, he thought there would be an employee within the staff that has the same class to operate the Water District as Mr. Winters and that we cannot allow Mr. Winters back in the building except other than the public area. Ted further stated that he didn’t know if the locks needed changed, but that the computers needed secured; that staff would escort Mr. Winters to have him remove his personal stuff.

There was further discussion regarding procedures on termination of an employee and how to move forward. Bo stated that the board needed to determine if Mike was terminated with cause or without cause as an “at will” employee stating that with cause, there would be no severance pay and without cause, he would receive three month’s severance pay.

Mark McEwen made a motion to pay Mike Winters three month’s severance pay. Kenyon Leavitt seconded the motion.

Karl Gustaveson asked to expand the motion in that no documents would be taken out of the building, not returning to the building, turning in his vehicle.

Mr. Brett Whipple commented that Mr. Winters had already turned his key to the truck over to an employee and that a representative of Mike’s would come in and retrieve his personal belongings.

Mark McEwen amended his motion, and wanted it very clear on the record, that Mr. Winters was let go as an “at will” employee and not from malfeasance; that his representative be let back into the building to retrieve his personal belongings; and that the issues of the vehicle have already been solved (the keys have already been turned over). Kenyon Leavitt seconded this motion.

Mark McEwen also stated that as part of his motion that Mr. Winters receive his severance pay within 24 hours and his representative would be able to retrieve his personal belongings. Kenyon Leavitt seconded the amendment to the amended motion. John Paul called for a vote and the amendment to the amended motion passed unanimously. 5-0

John Paul called for a vote on the original motion as amended and it was passed unanimously. 5-0.

 It was discussed and decided that two board members, along with legal counsel, would meet with the employees the next morning.

John Paul stated that before we went to item “8” that we would have a closed session meeting and everyone would have to leave the board room.

Bo went on to explain the difference in the types of employees’ Mike and Boomer were, and why Michael Johnson was able to have his evaluation in a closed session. Eric further explained that they could go into closed session, but that no formal action would be taken in the closed session.

Ted Miller made a motion to close the meeting and go into closed session to evaluate Michael Johnson. Karl Gustaveson seconded the motion.

Eric stated that statutes were specific in going into closed session to meet Open Meeting Laws and that you must specify what statute you are using to go into closed session.

Ted Miller stated that per NRS 241.030, I move that the Board go into a closed session to consider the character, alleged misconduct, professional competence, physical or mental health of Michael Johnson. Karl Gustaveson seconded this motion and it was unanimously carried. 5-0

The board reconvened and John Paul restarted the regular scheduled meeting.

8. Discussion & Possible Action - Performance Evaluation of Michael Johnson, Chief Hydrologist. Possible Action May Include, but is not Limited to, Termination, Suspension, Demotion, Reduction in Pay, Reprimand, Promotion, Endorsement, Engagement, Retention, Salary Increase, or ‘No Action’. (Closed Session May be Held to Consider Character, Alleged Misconduct, Professional Competence, Physical or Mental Health Pursuant to NRS 241.030.)

Ted Miller commented that as a public servant sometimes you have to make tough decisions and with the economic situations, we need to cut expenditures. Ted further stated that he did not feel that a full-time hydrologist was needed and thought the District should eliminate the position of the chief hydrologist and we could use Mr. Johnson on a retainer or consulting type situation.

Kenyon stated that he disagreed with Ted and that there were a ton of things in the works and if Boomer was gone, we would have wasted the money already spent. Kenyon further stated that if we needed to cut expenses we needed to look elsewhere and that we shouldn’t take another step back tonight.

Karl stated that he had mixed emotions about this and understands what both gentlemen have said and believes that Michael Johnson can be of real value, but there needs to be better communications. Karl further stated that he would not be opposed to a trial period and a review in six months.

John Paul questioned Boomer’s commitment to keeping the board informed ahead of time and keeping the communications open.

Mark McEwen echoed what Kenyon said and stated that after spending three hours with Mike and Boomer feels that the District needs Michael Johnson’s expertise and we could review in six months.

John Paul opened the item to the public. Bob Frisby asked for a clarification on Michael Johnson doing consulting work for him. Michael Johnson commented on the consultation work he did for the Beaver Dam Water Company. With no other public comment, John Paul turned the item over to the board.

Kenyon Leavitt made a motion to retain Michael Johnson as Chief Hydrologist for another year since he is an “at will” employee and the board at anytime can call him back to the floor. Mark McEwen seconded this motion and it was passed by a vote of 4-1 with Ted Miller opposed.

9. Discussion & Action – Consideration of Any Continued Representation of Virgin Valley Water District by Attorney George Benesch as Legal Counsel

John Paul stated that he had some information and that there was a substitution of legal counsel sent down by George Benesch on the Vidler case and John had signed this.

Karl stated that it was probably appropriate to get those filings in and that the decision has already been made and wondered why this was on the agenda. Karl commented on his feelings and that the board should accept George’s notice.

Bo stated that the substitution sent was on a certain case and wanted to make sure that the board was not operating under the assumption that he (George) was stating that he never wanted to do anything ever again for the VVWD and that the board could use him, but that they should make their intentions clear.

Mark stated that saying we should seek other counsel is very open and understands that Bingham & Snow are the District’s General Counsel so he believes it would be up to Bingham & Snow whether they need to use George Benesch or not, or any other counsel.

Karl stated that he didn’t quite agree in that the District should not be limited to one law firm or attorney. Kenyon asked if the board was giving the authority to go out and hire another attorney to Bingham & Snow when he feels that the Board of Directors should make the decisions and that should be made clear. There was some further discussion regarding the re-filing of the applications.

The item died for a lack of a motion.

4. Discussion – Power Point Presentation as Given by Michael Johnson to Public Lands Committee

Michael Johnson stated that with the late hour that maybe we should postpone the presentation until another meeting. John Paul stated that without objection we would postpone this item.

10. General Manager’s Report

Mike had not included a written report.

11. Hydrologist’s Report

Michael had not included a written report. Boomer stated that there was ongoing work with the Virgin River area and that he would be meeting with DRI tomorrow. Boomer also mentioned that Steve Tietjen, Supervisor, requested that the meeting to be held with employees be moved to 9:00 a.m. from 6:30 a.m. Boomer further stated that he has been working on Half-Way Wash and the Ranney Collector Well and that he obtained 1.3 million dollars from the Bureau of Reclamation (BOR) for this project and that he was also trying to get well #34 drilled.

 12. Public Comment

Sandra Raymaker brought forms for the board’s review. Robert Smith commented that it was unfair that the presentation was not given and that the applications were filed without board approval. Karl stated that it was appropriate to explain that emergency situations do come up and Boomer explained why the re-filing was done.

13. Adjournment

President John Paul adjourned the meeting at 7:00 p.m.

The minutes of this meeting have been tape-recorded and will remain on file in the District office for a one-year period for public examination.

• Board Meeting Minutes: 2010-02-02 (.pdf 32K)