County moves to dismiss Merit Pay Complaint

Lyon County officials on September 18, 2012 filed a motion with the Third Judicial District Court of Nevada to dismiss the complaint filed against them by the District Attorney, Assistant District Attorney, Sheriff and other plaintiffs; or, alternatively, to remove the District Attorney and Assistant District Attorney as Plaintiffs and the Assistant DA as Attorney.

The motion in its entirety may be read by clicking on the following link:

http://dl-web.dropbox.com/get/Public/NewsDesk%20September%2020%2C%202012%20-%20County%20answer%20to%20lawsuit.pdf?w=14013ac1&sjid=953

According to the document:

“Defendants LYON COUNTY, JOSHUA FOLI, JEFFREY PAGE and the LYON COUNTY BOARD OF COMMISSIONERS (“Defendants”), by and through their counsel, LAXALT & NOMURA, LTD, hereby moves this Court to dismiss Plaintiffs’ claims against them with prejudice because Plaintiffs’ Complaint is void because unauthorized by law. Alternatively, Defendants move to have this Court remove AUER and KRUEGER as Plaintiffs and KRUEGER as attorney for the Plaintiffs herein because of misconduct and conflict of interest.”

Legal arguments presented by the county include:

  1. Standard of Review under NRCP 12(b)(5);
  2. A Valid Claim is a Condition Precedent to the Filing of a Complaint
  3. The Demand Presented to the Comptroller is Not a Valid Demand
  4. The District Attorney is Prohibited from Filing Suit Against Defendants
  5. AUER and KRUEGER Have Engaged in Misconduct Sufficient to Remove Them from Further Involvement in the Above-Captioned Action

Copies of communication between District Attorney Robert Auer/ Assistant District Attorney Mark Krueger and Comptroller Josh Foli are included in exhibits 2, 3 and 4

Exhibit 2

Demand pursuant to NRS 244.210

 Mark Krueger mkrueger@lyon-county.org  Tue, Jul 31, 2012 at 12:53 PM

To: Josh Foli comptroller@lyon-county.org

Cc: Jeff Page jpage@lyon-county.org , Allen Veil aveil@lyon-county.org , Robert Auer rauer@lyon-county.org , Camille Vecchiarelli cvecchiarelli@lyon-county.org  Michael Fletcher mfietcher@lyon-county.org , Chuck Roberts croberts@lyon-county.org

Mr. Foli

Please accept this email as a present and ongoing demand pursuant to NRS 244.210, from the District Attorney and all of his employees, the Sheriff’s Office and all of his employees, and the Walker River and Dayton Justice Court employees for payment of a 2.5% merit increase on their respective anniversary date as such employees are not members of the Lyon County Employees Association or Lyon County or the Lyon County Sheriff Employees Association. Please pay all monies currently due and owing and provide written assurance that you will pay all future monies due. Please provide in writing your assurance that you will pay all such warrants due and owing. Failure to do so may result in litigation.

Thank you,

Mark

Exhibit 3

Josh Foli jfoli@lyon-county.org  Fri, Jul 20, 2012 at 1:54 PM

To: Mark Krueger mkrueger@lyon-county.org

Cc: Jeff Page jpage@lyon-county.org , Bob Auer rauer@lyon-county.org

Mark,

We can’t find any evidence of a current animal shelter agreement with the City of Fernley, so Jeff asked me to draft a new agreement. This is based on a current agreement with Storey County.  Would you review this and let me know if there need to be any changes?

Thanks!

Josh Foli, CPA

Lyon County Comptroller

City of Fernley Animal Services Agreement-doc 39K

 

Bob Auer rauer@lyon-county.org

Reply-To: rauer@lyon-county.org

To: Josh Foli jfoli@lyon-county.org

Fri, Ju1 20, 2012 at 2:11 PM

You guys are truly unbelievable. You help the commission take away Mark’s money and then ask him for help the very next day. Wow! I’ll be serving you with a lawsuit next week.

Bob Auer

Lyon County District Attorney

Sent on the Now Network™ from my Sprint® BlackBerry

 

From: Josh Foli jfoli@lyon-county.org

Date: Fri, 20 Jul 2012 13:54:35 -0700

To: Mark Krueger mkrueger@lyon-county.org

Cc: Jeff Page jpage@lyon-county.org , Bob Auer rauer@lyon-county.org

Subject: Proposed Animal Shelter Agreement

[Quoted text hidden)

 

Josh Foil jfoli@lyon-county.org

To: rauer@lyon-county.org

Fri, Jul 20, 2012 at 3:23 PM

Incidently, we also took away my money and Jeff’s money and all the money from the employees in our respective departments.

Have a good weekend.

Josh Foli, CPA

Lyon County Comptroller

[quoted text hidden]

 

Bob Auer rauer@lyon-county.org

Reply-To: rauer@lyon-county.org

To: Josh Foli jfoli@lyon-county.org

Fri, Jul 20, 2012 at 4:31 PM

Yes and you helped them. What do you need it for? FFE for that jail? You guys have built that thing on the backs of the employees. Now there are barely any employees left so time to take their salary. You have a good weekend and wait patiently for your requested work while we prepare this lawsuit to serve on you!

Bob Auer

Lyon County District Attorney

Sent on the Now Network™ from my Sprint® BlackBerry

 

From: Josh Foli

Date: Fri, 20 Jul 2012 15:23:50 -0700

To:

Subject: Re: Proposed Animal Shelter Agreement

[Ouoted text hidden]

 

Bob Auer rauer@lyon-county.org

Reply-To: rauer@lyon-county.org

To: Josh Foli jfoli@lyon-county.org

Fri, Jul 20, 2012 at 4:33 PM

Oh and by the way how many employees in your departments were effected? Every single one of mine were. But you know that already don’t you.

Bob Auer

Lyon County District Attorney

Sent on the Now Network ™ from my Sprint® BlackBerry

From: Josh Foli

Date: Fri, 20 Jul 2012 15:23:50 -0700

To: rauer@lyon-county.org

Subject: Re: Proposed Animal Shelter Agreement

[Ouoled text hidden]

Josh Foil jfoli@lyon-county.org

To: rauer@lyon-county.org

Fri, Jul 20,2012 at 4:47 PM

Every single one of the employees in Comptroller, HR, IT, and County Manager Departments (including myself, Steve, Hazen, and Jeff) were affected. So my employees are not being treated any differently than your employees. I have no vendetta … I simply believe that we need to continue following precedent in treating these employees to the same salary policies as the Employee’s Association. Obviously you have a different perspective, which I respect. I just don’t agree, which isn’t personal.

Josh Foli, CPA

Lyon County Comptroller

463~6510

 [Quoted text hidden]

Bob Auer rauer@lyon-county.org

Reply-To: rauer@lyon-county.org

To: Josh Foli jfoli@lyon-county.org

Save it for your deposition.

Bob Auer

Lyon County District Attorney

Sent on the Now Network™ from my Sprint® BlackBerry

From: Josh Foli

Date: Fri, 20 Jul 201216:47:00 -0700

[quoted text hidden]

Exhibit 4

Thought you should have this information.

Thanks for your time.

Josh Foli, CPA

Lyon County Comptroller

(775) 463-6510

From: Mark Krueger mkrueger@lyon-county.org

Date: Mon, Ju123, 2012 at 2:41 PM

Subject: Notice re Budget, Merit Pay and Board Action

To: Leon Aberasturi laberasturi@lyon-county.org , Bill Rogers wrogers@lyon-county.org , Camille Vecchiarelli cvecchiarelli@lyon-county.org , Bob Bennett rbemlett@lyon-county.org , Michael Fletche mfletcher@lvon-county.org , Allen Veil aveil@lvon-county.org , Nikki Bryan nbryan@lyon-county.org , Linda Whalin lwhalin@lyon-county.org , Mary Milligan mmilligan@lyon-county.org

Cc: Robert Auer rauer@lyon-county.org

Dear Elected Official:

On June 1,2012, the Lyon County Board of County Commissioners approved the Lyon County budget for the 2012-2013 fiscal year. The budget was adopted through a series of hearings and workshops before the County Commission. The elected officials were represented at those hearings and workshops. The proposed budgets for the offices of the elected officials included separately stated salaries including separately stated merit increases of 2.5% for each employee (a lump sum of 2.5% for those employees that are topped out). Upon approval, the budget was appropriated and salaries were fixed with the 2.5% merit increases included. The final budget was sent to and accepted by the Nevada Department of Taxation.

On July 19, 2012, the County Commission heard a late agendized item seeking to freeze the previously approved 2.5% merit increases. Against the legal advice of the District Attorney and over the protest of the Sheriff and public citizens, the County Commission by a 3-2 vote approved a resolution freezing the previously approved 2.5% merit increases for the 2012-2013 fiscal year.

Because the District Attorney had determined that it was unlawful for the County Commission to impact the budgets of the offices of elected officials after the budget was approved on June 2, 2012, the date the County Commission appropriated the final budgets to elected officials, the District Attorney now intends to file a lawsuit to declare the County Commission action null and void and to further restore the 2.5% merit increases previously appropriated.

Please advise your employees that are affected by the County Commission action and decision that because their salaries been affected, they have been aggrieved by the decision and action of the County Commission, and may wish to consult an attorney on their own to determine their rights in this matter.

In addition, please inform your affected employees that if they wish to specifically be named as a plaintiff in the District Attorney’s lawsuit, to please inform the District Attorney by email response as soon as possible.

Thank you,

Mark


One comment on “County moves to dismiss Merit Pay Complaint
  1. Sandy Marshall says:

    Well, those emails prove the DA really doesn’t care about Lyon County, just as I said. He also seems to believe his employees are superior to the rest of the county employees. Also, I was also right that the DA office was too busy getting the lawsuit together to do the job they were hired for.

    So Lyon County will have a do nothing DA office for the next two years, great!

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  1. […] Lyon County officials on September 18, 2012 filed a motion with the Third Judicial District Court of Nevada to dismiss the complaint filed against them by the District Attorney, Assistant District Attorney, Sheriff and other plaintiffs; or, alternatively, to remove the District Attorney and Assistant District Attorney as Plaintiffs and the Assistant DA as Attorney. [Continue reading…] […]

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