There’s nothing unprecedented about a Nevada attorney general intervening on behalf of the Gaming Control Board in litigation between private parties, even when one of the parties is a licensee.
You wouldn’t know that from legislative Democrats’ hyperventilating over an affidavit from Gaming Control Board Chairman A.G. Burnett. As reported by the Las Vegas Review-Journal’s Sean Whaley, Burnett admitted to secretly recording a 2016 conversation with Attorney General Adam Laxalt. They talked about whether the board should file an amicus brief defending the confidential nature of licensee records submitted to state gaming regulators. Burnett stated he was “shocked and in disbelief” that Laxalt would want to discuss the topic before a judge ruled on discovery in a case involving Las Vegas Sands Corp. and its chairman and CEO, Sheldon Adelson.
“I explained all the reasons why the GCB does not get involved in licensee litigation, including past policy and practice,” Burnett said in the affidavit. “One of those reasons being the fact that the case was only at the District Court level.”
Assemblywoman Maggie Carlton, D-Las Vegas, subpoenaed the recording and the affidavit and says the matter warrants a hearing.
However, a search of past legal filings shows that, as attorney general, now-Sen. Catherine Cortez Masto intervened on behalf of the Gaming Control Board in at least two lawsuits involving private parties where one party was a gaming licensee. (The attorney general’s office acts as the Gaming Control Board’s legal counsel.)
In 2013, Cortez Masto intervened on behalf of the board — while Burnett served as chair — in Cantor G&W vs. Joseph Asher while the case was in state District Court. In 2008, Cortez Masto filed an amicus on behalf of the board in Sheldon Adelson vs. John Smith. Cortez Masto argued that Smith, an author and former Review-Journal columnist, shouldn’t have access to board records about Adelson. That case was in bankruptcy court.
“Individuals, such as Mr. Adelson, who subject themselves to Nevada’s strict regulation of gaming, do so under the statutory guarantee that any and all information they provide to or is obtained by the BOARD (GCB) will maintain the confidentiality and privileged status which was intended by the Nevada Legislature,” Cortez Masto’s office wrote in its 2008 amicus.
Burnett ignored these pertinent details in his affidavit while doing everything he could to leave the opposite impression.
“Generally, GCB policy is to refrain from becoming involved in litigation that involves a Nevada gaming licensee or licensees,” Burnett said. “I have myself written magazine articles on this topic.”
But in an article he wrote for Nevada Gaming Lawyer in 2012, Burnett bragged about how the board would go to court to protect licensee information in its possession.
“The fact that the GCB and NGC (Nevada Gaming Commission) will go to these great lengths should demonstrate to counsel, gaming or otherwise, how protective and concerned these agencies are in maintaining confidentiality while conducting mandatory due diligence on gaming litigants,” Burnett wrote.
Certainly, there are case-specific considerations that determine whether the Gaming Control Board should file an amicus on protecting information in its possession. Those are exactly the types of nuances attorneys routinely discuss with clients.
There could be something untold on the recording, but the insinuations Burnett tries to weave together in his affidavit fall apart when you learn what he failed to disclose.
The board should release the recording immediately.
The Las Vegas Review-Journal is owned by the family of Las Vegas Sands Corp. Chairman and CEO Sheldon Adelson.