AFFIDAVIT OF A.G. BURNETT State of Nevada ‘County of Cason BEFORE ME, tne dersignod Notary, leather Pardee ‘onthis day of AOC + 2017, personally appeared ANDREW G. BURNETT, known to me to be a credible person and of lawful age, who being by me first duly swom, on his oath, deposes and says: 1. lam the Chairman of the Nevada Gaming Control Board (Board or GCB). | make this Affidavit in furtherance of the Board's duties as defined in NRS Chapter 463. | further make this Affidavit pursuant to the oath of office | took upon being sworn in by the Governor, with the sole intent to protect the GCB, the Nevada Gaming Commission (NGC), the State of Nevada, and myself. ‘2. Ido not make this statement to impugn or malign any licensee. After the disciplinary action (described below), the subject licensee remains licensed in good standing with the GCB and NGC. 3. I1do not make this statement to impugn or malign the Attorney General, 4. I make this statement to provide the pertinent facts and to protect and keep intact the integrity of the Nevada gaming regulatory scheme. 5. I make the below narrative in good faith, without malice, based upon my recollections, notes, recordings, and all evidence | have available, which encompasses the attachedeI Ahk oD ul 12 13 14 15 16 17 18 19 20 2 22 23 25 27 28 exhibits. This factual narrative is set forth below in its entirety, bold-typed as Paragraph 6. In early 2016, the GCB and certain federal agencies were investigating potential State and federal law violations by a Nevada gaming licensee. Such investigations can lead to disciplinary action taken against the licensee by the GcB, At the same time, said licensee was a defendant in highly controversial ‘multimillion dollar, wrongful termination lawsuit against a private party (plaintiff This litigation was filed in the Eighth Judicial District Court in Clark County. ‘Some allegations in that case concerned some of the potential violations being investigated by the GCB and the other agencies. Nevada law states the GCB “shall” monitor the activities of gaming licensees (NRS 463.1405(1)) and, pursuant to our guiding statute, ensure gaming is free from corruptive elements. See NRS 463.0129. “Shai” has been deemed by the Nevada Supreme Court to mean “presumptively mandatory." See Nev. Comm'n on Ethics v. JMA/Lucchesi, 110 Nev. 1, 9-10, 866 P.2d 297, 302 (1994), Throughout its duration, the GCB monitored that private litigation and leaned there were ongoing discovery disputes. One major discovery dispute concemed an internal report that had been created at the licensee's request by an independent firm. At some point, this report had been turned over by the 'Icensee, in full or in part, to the federal agencies and the GCB. The plaintiff was aware of this, and through discovery, requested the report. mMCer aHeKRUD 10 u 12 2B 14 15 16 7 18 19 20 21 23 24 25 26 27 28 From what | understand, the licensee's attorneys refused to disclose the report and, in turn, argued to the District Court that because the documents had been Siven to the Board, it was confidential as to the whole world. In other words, even though it was given to the federal agencies, since it was also given to the SCB, confidentiality provisions in Nevada law (NRS Chapter 463) meant the documents were not discoverable even though it was given to the federal agencies, as well, The plaintiff argued that since the information had been provided to other federal, non-Nevada agencies, any confidence or privilege was waived. Therefore, plaintiff should obtain those documents from said agencies or from the licensee. My understanding of the law in this regard was, and is, that disclosure to the federal agencies constituted a waiver of any privilege, and the requestor would therefore be likely to obtain said document. In December of 2015, during the pendency of the civil litigation, the licensee inquired whether the Board would be willing to file an amicus brief that essentially supported their position with respect to the Confidentiality of the internal report. After review, Board staff concluded this would not be appropriate, and declined. None of the parties in the litigation had subpoenaed or otherwise Tequested the documents from the GCB. The GCB was not a party to that action or involved in any way. MW MmSeeiannnun 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In fact, plaintiff argued it did not want any documents from the GCB, but instead wanted them from the other agencies. Also in December of 2015, the licensee purchased the state's largest newspaper, the Las Vegas Review-Journal. Through press reports, it was also learned that reporters from that newspaper had been assigned the task of monitoring the District Court judge presiding over the wrongful termination case. Then, in March of 2016, | learned the District Court judge would soon rule on the outstanding discovery requests. On or about the same time, the licensee filed a motion in the Nevada Supreme Court to remove the District Court judge from the case, entirely. In early March 2016, the licensee again requested that the GCB file a motion or brief in the discovery proceedings to explain Chapter 463 confidentiality laws to the District Court judge. Generally, GCB policy is to refrain from becoming involved in litigation that involves a Nevada gaming licensee or licensees. There are many policy reasons for this decision, including the danger of appearing to advocate for a gaming licensee, and the “slippery slope” of regulatory precedent that would be set, as gaming licensees are routinely involved worldwide in litigation. | have myself written magazine articles on this topic. One of the few instances in which the GCB or NGC might file an amicus brief would be to offer guidance to the Court regarding important matters that affect Its own regulatory interests, and when a Court's decision may potentially harmCet Aaneune 10 n 12 13 4 15 16 7 18 19 20 21 22 23, 24 25 26 27 28 or impact the GCB’s ability to carry out its statutory duties. |, along with GCB staff, concluded that filing any such brief would constitute unwarranted and unjustified interference in the contentious litigation. Staff and | folt such a brief would (1) be unique in terms of the argument it assisted, (2) be ‘seen as an improper endorsement of a licensee's legal argument, and thus taking the side of a regulated entity, (3) not be necessary, as GCB regulatory Policy and procedure would not be affected by the outcome the judge's ruling, and (4) not be genuine, because the GCB had no interest in the case, nor could it articulate any reason why such a brief would be desirable, See NRAP 29, CB policy on amicus curae briefs has been similar to that of other agencies, Such as the SEC, and a deviation from that would send unwarranted and unjustified ripples throughout the regulated gaming Industry. ‘To summarize, the GCB believed the filing of any brief would have essentially Confirmed the licensee’s argument and, further, violated appropriate Policy, Based on the foregoing, in early March 2016, the GCB responded to the licensee, again, declining to become part of the litigation in any way. After that response, and out of an abundance of caution, the GCB requested ‘egal analysis from the Attorney General's Office (AGO), specifically the Gaming Division, regarding the discovery dispute and any potential impact of the District Court judge’s ruling. See Exh. B at 3. The AGO opinion, dated March 10, was. Prepared by a Senior Deputy Attorney General (DAG) in the Gaming Division. See id. at 1. mMCS ePYaneune 10 ul 12 B 14 15 16 17 18 19 20 2 22 23 24 25 26 27 28 In that opinion, GCB policy against becoming involved in such litigation was that doing so was ill-advised for all the Confirmed. See id. There was also ai Feasons stated above. See id. GCB staff and | felt the GCB responded appropriately and the matter had been resolved. Soon thereafter, however, a trusted and credible source advised me that a meeting or meetings had been held between the Attorney General and the licensee's representatives regarding the discovery matter and the GCB's decision not to interfere, Oddly enough, the GCB was not invited to attend the meeting(s). And, as far as I know, nor were any of the gaming DAGs, including the Senior DAG who prepared the March 10 opinion, present In the meeting(s). From what | understand, during the meeting(s), the licensee's representatives expressed a dissatisfaction with the GCB decision not to become involved in the litigation. After learning the meeting(s) took place, the GCB, internally, expressed concern about its counsel, the Attorney General, being engaged in private discussions concerning GCB matters without the GCB, the client, present. This was especially troubling because the meeting(s) was with a gaming licensee that (1) GCB was currently investigating and possibly disciplining, and (2) GCB had already declined its requests to enter into the civil litigation. Nevada law requires the Attorney General to represent the GCB and NGc, including any investigative and disciplinary proceedings against licensees (see NRS 463.0199), so the GCB was perplexed by the Attorney General's conduct,Sewers eune 12 1B 4 15 16 17 18 19 20 21 23 24 25 | 26 27 28 and lack of GCB involvement, with respect to the aforementioned meeting(s). This information greatly concerned the GCB, which led to a great deal of caution by the GCB in working with the Attorney General's staff in regards to the GCB's approach to both the pending disciplinary action (which appeared to be likely) and the civil litigation. In fact, during this time, it was becoming certain the GCB would discipline the licensee per the investigation noted above. As such, the GCB course of action was to prepare as best it could for extensive potential litigation before the Nevada Gaming Commission. The gaming DAGs were assisting the GCB in the preparation of pleadings. During the latter part of March 2016, | received information from a trusted and credible source that the Attorney General would soon be contacting me personally to discuss the possibility of the GCB filing a motion or brief in the wrongful termination case. | was in disbelief, because this course of action was in direct conflict with the Attorney General DAG’s prior March 10 Opinion. Thus, Iwas confused about the AGO, as a whole, and the level of communication from top to bottom within. On Thursday, March 24, 2016, the Attorney General contacted me via text message. He asked for a meeting in Carson City. See Exh. A at 1. | responded | was in Reno that day. See id. at 2. The next day, Friday, March 25, the Attorney General again contacted me via text message. He requested an in-person meeting with me, and as soon as possible.PIX AHeREK EL un 12 13 14 15 16 17 18 19 20 2 22 23 24 25 26 27 28 Iwas again in Reno. See id. at2-3. | was also Preparing to take my family on vacation the next day, Saturday, March 26, returning to work on Monday, April 4 Despite telling him that, the Attorney General expressed urgency in having the meeting before my vacation and not after. See id. at 3, When | indicated | was leaving for vacation, the Attorney General still requested to meet that day and in person. See id. | indicated | could meet after | returned from vacation on Friday, April 7 or Tuesday, April 11, but he insisted on meeting me that Friday, March 25. See id. at 2-3. | advised the Attorney General that such a meeting would be difficult, as Iwas, at that time, getting a vehicle serviced at a car dealership in Reno and had afamily dinner afterward. See id, at 4, He stated he had a prior commitment earlier that day, but he would text message me when done. He then did so, as follows: ‘Just got out - I can meet you anywhere This is urgent that | see you since you are gone all next week {d. This message furthered my concern, as the timing was not lost on me: The Nevada Supreme Court was set to hear the motion to remove the District Court Judge in the civil case on Tuesday, April 5 in Carson City. It appeared to me that {he urgency for the meeting, therefore, was to see if the GCB would agree to file 2 brief should the Nevada Supreme Court rule that the District Court judge could stay on the case, because the District Court judge would thereafter issue a ruling on the discovery dispute between the plaintiff and defendant, licensee, mMAfter | indicated I was at the car dealership and | hada family obligation afterward, | text messaged as follows: Might be weird but I be at [dealership name redacted}? What's up is it an emergency dd. at 5, The Attorney General then replied via text message: Don't want to text Start you appt [sic] and I can come There if you dint [sic] think you will make it out in time Heading now towards my new house near [street name redacted] ‘d. Due to the apparent exigency | agreed, and the Attomey General Personally Picked me up at the car dealership In his vehicle; he then took me to a coffee shop for a conversation. !was shocked and in disbelief due to the nature of these unusual circumstances. 'was also extremely worried about what the conversation might entail. Based on my knowledge of Nevada statutes, previous discussions with GCB staff and attorneys, including past discussions with federal authorities, | determined it was in my best interest, and those of the state and the GCB, to record the upcoming oral conversation. mMCm aH kone 10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, because sald licensee had in recent months been part of the purchase of the Las Vegas Review-Journal, and as previously noted, there were news articles implying that agents or employees of the newspaper had sent reporters around to monitor particular Nevada judges, including the judge presiding over the Wrongful termination case, | was concerned reporters might be monitoring me, as w At the outset of our in-person meeting, the Attorney General began discussing the quality of particular judges in Nevada. Then, as predicted, he inquired as to the possibility of the GCB filing a brief in the civil wrongful termination case. The request was essentially the same as that made by the licensee several weeks before, as described above, The Attorney General implied the District Court judge presiding over the wrongful termination case did not know the law and such a brief would simply educate the judge on Nevada gaming law. A discussion ensued regarding GCB policy on amicus briefs, in general, and the anticipated content of such a brief if one was filed in this particular case. At this point, | knew the licensee's representatives had In fact discussed this Issue with the Attorney General, as previously believed. And, that the Attorney General had elther agreed with the licensee, or decided on his own, to again discuss with me the possibility of DAG's earlier advice of March 10 (confirming the past policy of the GCB and -10-10 " 12 13 4 15 16 17 18 19 20 21 23 24 25 26 27 28 CMY AH eR UDe indeed advising against filing an amicus brief in the wrongful termination case). The Attorney General indicated that the District Court judge on the case might be removed, but if not, she would immediately start ruling on pending discovery requests. This statement validated my initial thoughts regarding the urgency of the meeting, as noted above. During our in-person conversation, | made it clear the GCB would not become Involved in the litigation. | explained all the reasons why the GCB does not get involved in licensee litigation, including past policy and practice. One of those reasons being the fact that the case was only at the District Court level and any ruling would have no precedent-setting val The only time GCB would ever consider such intervention would be if there was @ real danger of a precedent-setting ruling affecting the Board, Commission, or the regulatory structure in such a way that would harm our statutorily-mandated duties. None of those dangers were present here. ‘expressed my concer about the licensee approaching the Attorney General with this issue, rather than the GCB Chairman, Soon thereafter, the discussion ended. made key GCB staff aware of the circumstances of the meeting shortly afterward. The following Thursday, March 31, while | was on vacation, | received a request from the licensee to meet. This confirmed that the Attorney General had indeedCer AaH Keone 10 u 12 3B 4 15 16 17 18 19 20 2 22 23 25 26 27 28 spoken to the licensee after our conversation. In fact, | text messaged the Attorney General and asked if the meeting request from the licensee was pursuant to my conversation with him earlier, and he indicated "yes." See Exh. A at 6. He offered to be present or have a DAG there. See id. | met with the licensee on April 5, the same day of the Nevada Supreme Court hearing (to remove the District Court judge) in Carson City. | did not ask the Attorney General to be present. Instead, | had two gaming DAGs and the GCB Chief of Investigations present. See id. at 7. In that meeting, the GCB discussed its policy regarding its involvement in private party litigation. | told the licensee unequivocally that we would not become part of the litigation in any way. "believed that, at last, the licensee understood and accepted the GCB Position. Later, | inquired with staff and independent counsel as to the best ‘approach regarding the recorded conversation I had with the Attorney General. It was ultimately determined that the most appropriate and responsible course of action would be to deliver it to the federal authorities for their review. One reason for this was that per Nevada law, itis the Attomey General who Investigates issues involving public officers. Further, the federal authorities appeared to be the most appropriate to assist in a determination of whether any inal acts had taken place, such as corruption. After their review, the federal authorities advised there appeared to be no criminal violations. Accordingly, the GCB considered the matter closed and 212. _|ZY AKAD " 12 B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 moved on with the already existing investigation and upcoming disciplinary action involving the licensee. The Nevada Supreme Court ruled against the defendant licensee on Wednesday, May 11, 2016, ordering the District Court judge to remain on the wrongful termination case, As evidenced by the record, the GCB never filed any brief in the District Court wrongful termination case. ‘The GCB ultimately filed a disciplinary action against the licensee on Wednesday, May 11, in accordance with the Investigative findings mentioned at the beginning of this statement. ‘The licensee settled the disciplinary action with the GCB on May 19, 2016, and also settled the wrongful termination case in District Court, with a Stipulation and Order for Dismissal with Prejudice entered on May 31, 2016, ‘The April 2016 recording of my conversation with the Attorney General was not altered or manipulated in any way and was delivered to the GCB Technology Division for safekeeping in the same form as | obtained it. + Ihave since re-confirmed with the federal authorities, GCB enforcement staff, and Separate attomeys that my actions regarding recording the oral conversation were legal and appropriate, | believe that if, or someone in ‘my position as Chairman, had agreed to file such a document before the District Court under the above-described circumstances, that the 3.Cer auneune 10 u 12 13 14 15 16 7 18 19 20 21 23 24 25 27 28 foundation of gaming regulation in Nevada, and the reputation of the state as a whole, would have been harmed, ‘Chairman, Nevada Gaming Control Board 1919 E. College Parkway, Carson City Nevada 89702 Subscribed and swom to before me, this __& day of Boch aol. HEATHER PARTEE ower PuaLc STATE OF va, yagotew. Oc 220 § [signature of Notary) eather Riytee [typed name of Notary] NOTARY PUBLIC My commission expiros: CE Weer | 20 20. -14-