Virginia
City Highlands Property Owners’ Association
Minutes – Emergency Meeting, Monday, November
19, 2012
V.C. Highlands Fire Station Training Room
Present: Dave Thomas, Mary Tallent-Stewart, Patrick Flanagan, and Karlyn McPartlin
Absent:
None
I.
Call
to Order, Declaration of a Quorum, and Approval of Meeting Agenda
President Thomas called the
meeting to order at 7:05 pm and declared a quorum present. A motion by Tallent-Stewart, seconded by
McPartlin to approve the agenda as presented was approved unanimously.
Thomas explained that the
subject of this meeting had been addressed at the last meeting, but Mr.
Flanagan objected to the proceedings since Robert’s Rules of Order were not
followed. The censure was agreed to and
signed by three board members but not voted upon as a formal motion.
At the October meeting the board
reviewed an opinion by the Standing Committee on Judicial Ethics (Committee)
stating that a sitting justice could serve on the board of a homeowners’
association. The opinion stated that
said justice could not take part in any action which might appear before his
court. Thomas stated that since the
association was founded in 1979 no action involving the association had ever
gone before the justice court.
The board agreed that the
likelihood of a conflict was unlikely and that the sitting justice of the peace
could serve on the board with no problem.
Thomas read the paragraph from the October minutes affirming this
action.
II.
Letter Dated November 9, 2012 sent by Patrick
J. Flanagan to Michael Pagni, Chairman of the Standing Committee on Judicial
Ethics
A.
Discussion of Letter
On November 9, 2012, Mr.
Flanagan sent a letter to the Chairman Pagni of the Committee asking for
reconsideration of the opinion and signed his name as Treasurer of the
VCHPOA. He did put a disclaimer below
the signature stating that the request was not from the board but from him as a
homeowner. A copy of the letter is
attached to these minutes as Attachment 1. He did not consult the board before sending
the letter. Thomas stated that there are
misstatements of fact in Flanagan’s letter regarding issues handled by the
board and the population of the Highlands.
Mr. Flanagan has been asked many
times over the past two years, both in public meetings and in private, to not
express his personal opinions on board matters in public forums as a
representative of the board.
Thomas stated that the duties of
the association are to enforce the governing documents, maintain the common
areas (roads), and to collect dues and assessments to accomplish these tasks. Issues between property owners and judicial
ethics are not among the duties of the directors. An owner stated that water usage and waste
were functions of the board, but Thomas refuted that, stating that there is no
authority to act on this issue. It must
be handled by the county or the State Engineer’s office.
Any communication from the board
must come at the direction and review of the board. No board member should correspond with anyone
on a board matter without first being authorized by the board to do so. Any such correspondence should be reviewed by
the board prior to being sent.
McPartlin stated that the
Committee is under the auspices of the Nevada Supreme Court.
Thomas stated that a censure is
a symbolic form of discipline greater than a reprimand, but does not reach the
level of expulsion. There are no ramifications
other than the reading and approval of the censure in an open meeting. He reread
the definition of censure which was read at the last meeting and appears in the
minutes of that meeting.
Flanagan stated that he has
reviewed his emails for the past three or four months and did not find matters
that involve the association. He stated
that waste of water was addressed by the board years ago but the matter had
been turned over to the county with little effect.
He thanked those present for
attending. He read a prepared statement which
is attached to these minutes as Attachment 2. He said that his father had taught him not to
lie and that he takes that very seriously.
. He asserted that there had not
been a motion seconded and voted upon to approve the censure action.
He has had several conversations
with the Ombudsman’s office about his actions representing the board. His letter was on personal stationery and signed
as Treasurer of the VCHPOA, but noting that the letter was sent as an
individual.
He feels that his was a prudent
request for clarification of the earlier opinion. It is his opinion that a justice sitting on
the association board could cause problems and expense for the justice court. He stated that he discussed the issue with
Storey County DA Maddox, JP-elect Herrington, and his private attorney and was
encouraged to ask for reconsideration of the opinion. He felt that if he didn’t make known to the Committee
his position on the board they might not have taken his request seriously.
The second issue involving
matters discussed in executive session could have been clearer. He still feels that matters before the board
might go before the justice court where the judge would have to recuse
himself.
In his mind he wants the best
support of board members and having a sitting judge on the board does not
afford that support. He stated that he
supports the letter President Thomas has drafted to send to the Committee. He stated that he has received strong support
for his action from the legal system and feels that he is within his rights to
ask for the clarification. He feels that
no board member should ever be censured and hopes that the motion fails. He hopes that the move is not politically
motivated.
Thomas questioned Flanagan’s
reference to lying and stated that no one had accused Flanagan of lying. He also reiterated the limited actions that
can be handled in executive session.
These include meetings with owners about violations of provisions of the
governing documents, personnel issues, and attorney/client discussions.
Flanagan’s letter misstated the
number of homeowners in the association and included the number of lots in the
Highlands Ranches, over which this board has no authority.
Tallent-Stewart stated that
during her two terms on the board Flanagan has been asked repeatedly not to
represent his opinions as those of the board and asked what he does not
understand. She stated that she is angry
that he persists.
Thomas read from an email by
Tallent-Stewart stating that she had received a call from Eileen Herrington
stating that she is doing nothing with Mr. Flanagan and wishes that he would
stop calling her.
Tommy Sargent stated that the
opinion of the District Attorney has nothing to do with this association and
should not bear on these proceedings.
An owner present objected to a
censure stating that censures are for morals charges. Many disagreed.
Sharon Snell stated that she has
a totally different point of view. She
stated that she feels a censure motion is extremely serious and read some
examples she had found on the internet.
She is personally embarrassed that the association has come to this
public action. We are neighbors and she
sees the frustration of the board.
However, Patrick Flanagan is Patrick Flanagan, unlikely to change, and
she does not agree with the action. She
feels that we are hanging dirty laundry for all to see.
Tommy Sargent stated that the
only remedy available to the board is censure.
Jeremy Snell is a property owner
and does monitor the chat board. He feels
the issue is the use of his title and the other items discussed are not
relevant.
Flanagan stated that he has
listened to the comments tonight and agrees that his stating his opinions as
representing the board is the problem.
He will ask the Ombudsman’s office for advice and will try very hard not
to do it anymore.
B. Presentation
of Censure Resolution applying to Patrick J. Flanagan
A copy of the Resolution of Censure is attached to these minutes as Attachment
3.
McPartlin read the concerns stated in the resolution of censure and
moved for approval. The motion was seconded
by Tallent-Stewart and approved with Flanagan dissenting.
C. Review and Approve Clarification Letter to
Nevada Standing Committee on Judicial Ethics
A draft letter to the Committee had been provided to the board prior to
the meeting and was available for those in attendance. A copy of that letter is attached to these
minutes as Attachment 4.
A motion by McPartlin, seconded by Tallent-Stewart to approve the draft
letter and send it to the Committee was approved unanimously.
III.
Comments
by Association Members
There were no further comments by association
members.
IV.
Adjourn
There being no further business, the meeting was adjourned at 8:33 pm.
Respectfully submitted,
Rita Lumos,
Recording Secretary
Attachment 1
Mr.
Patrick J. Flanagan
P.O.
Box 427
Virginia
City, NV 89440
775-847-5243
November
9. 2012
The
Honorable Michael A. T. Pagni, Chairman
Standing
Committee on Judicial Ethics
P.O.
Box 48
Carson
City, NV 89702
Re:
Review of Advisory Opinion #12-011
Dear
Mr. Pagni:
I am
asking that the Committee review opinion #12-011 as amicus curiae due to
possible lack of pertinent information critical and germane to the guidelines
established by this ruling.
First,
I am assuming that this opinion was generated in response to Judge Jack
McGuffey’s request for guidance as to him sitting on the Board of the Virginia
City Highlands Property Owners’ Association.
As long as Judge McGuffey stays in office, I have voiced my opposition
to his appointment to the Board. Opinion
#12-011 seems to indicate that I should withdraw my opposition and I would like
clarification.
Generally
the opinion seems to be appropriate in that the probability of the Board of
this homeowners’ association would seldom, if ever, have to go before Judge
McGuffey’s court and possibly cause him to have to recuse himself due to
potential conflicts. First, most of our
litigation normally goes through arbitration with the Nevada State Ombudsman
Program which bypasses the court system in the majority of cases. So #12-011 makes good sense from this
viewpoint and I see no problem with the advisory.
However,
it is from a different viewpoint where I think the Committee should reconsider
and that is in the probability of individual
members of the homeowners’ association having to appear before Judge
McGuffey’s court for various matters
such as traffic violations, marital disputes, etc. Often the Board must deal in executive session
regarding property right issues between neighbors and/or in violation of our
CC&R’s. These cases could also go
before Judge McGuffey’s court as residents being both the plaintiff and
defendant, and both being members of our association. In fact, some cases have all ready followed
this process and not just in the area of traffic violations. The result of these executive sessions often
advise that our Board is not the proper forum for resolution and that some complaints
should be redirected to the Sheriff,
District Attorney of Storey County and then maybe to Judge McGuffey for
final resolution. As a Board member,
Judge McGuffey would be present in these executive sessions and potentially
this could cause some conflict of interests and cloud the appearance of
impartiality.
The
high probability of this happening is supported by the entire population of
Storey County being about 4,010 per the 2010 census, one of the smallest
counties in Nevada. At the same time, we
have approximately 1,169 homeowners in 1 acre lots and 506 homeowners in 10
acre lots, a total of 1,675 members approximately. That is more than 25% of the entire
county population. We are an unusual and
one of the largest homeowners’ associations in the state and also in the
smallest county of this state. As a
result, the probability of conflict of Judge McGuffey sitting on our Board
while also serving as our Justice of the Peace is extremely high and the
incidence of him having to recuse himself in a number of such cases would be
unacceptably high as well. In turn, the
probability of judicial appearances and impartiality being negatively impacted
also would go up.
I
think you can see where I have my concerns in the advisory opinion and why I
think it should be reviewed. If you have
any further questions or if I can be of any help in this matter, please feel
free to write or call me.
In
advance, I thank the Committee for taking the time to review my concerns and to
take whatever appropriate action that they deem fit and appropriate.
Sincerely
yours,
Patrick
J. Flanagan
Treasurer
Virginia
City Highlands Property Owners’ Association
Note:
This letter is not represented as a formal position or request by the Board of
the Virginia City Highlands Property Owners’ Association but rather the personal
concerns of a Board member and also homeowner in the interest of the
community’s welfare in Storey County.
Attachment
2
Testimony of Patrick J. Flanagan
In Defense Against the Motion to Censure
for Letter to the Standing Committee on Judicial Ethics
Emergency Meeting November 19, 2012
VCHPOA
First of all, I wish
to thank all of you for attending tonight and giving up your time. These are serious matters and your attendance
is appreciated.
Years ago, my father
taught me to not lie. I have tried to
follow his advice over my 67 years of life.
He said, “If you tell one lie, you will have to tell another, and
another, and another until you will have a cobweb of lies all around you and
are found out. Then the price will be
heavy.” Like any kid, I didn’t listen at
first but quickly learned that he was right.
As a result, I take the act of lying very seriously. The truth is so very important and critical
to our trust and way of life.
Making the
accusation that one is lying is a very serious action. We all have a responsibility to be careful
when using such words. Often there are
the appearances of a lie or wrong-doing but the person is not lying and that
makes this judgment very important.
Generally, it is better to give one the benefit of the doubt. The weight of calling someone a liar is very
heavy. It’s best to be truthful.
And to accuse one of lying is a very serious matter.
A number of years
ago, there were appearances of major wrongdoing which caused me to go to a
federal investigator. I told him what I
was aware of but that I didn’t have proof and just wasn’t sure. His response was that I should come forward
with the information, and that it was his job to find the truth and prosecute
if there was wrongdoing. It was a very
difficult time for me; I was put under a witness protection program, the
investigation began and I was proven correct in my feelings. In the end, the truth came out and the people
involved paid the price.
The reason why we
are here tonight is to rehear a motion to censure me for a letter written to
the Standing Committee on Judicial Ethics regarding Advisory 12-011.
In the Board meeting
of November 9th, this matter came up for discussion but a motion was
never properly made, seconded or voted upon.
As a result, there was no action taken.
Subsequent to that meeting, Rita Litmos submitted draft minutes of that
meeting in which it was represented that the motion was seconded and voted
upon. I immediately wrote her to amend
and to reflect that there was no motion formally made, seconded or voted upon
and asked her to amend the minutes to this effect. Soon after, Karlyn McPartlin objected and
said that my amendment was not valid and maintained that the motion had passed. Now I wouldn’t want to say that she was lying
as there might be another good reason for her perceiving this. It was just my word against hers. But I know what I heard at the meeting and
knew that my objection was accurate and truthful.
As a result, I got a
witness who attended that meeting and he agreed that there was no formal motion
made, seconded or voted upon. My
perception of what happened that night was correct and Karlyn’s was wrong. The motion died as the result. Kind of like removing some of those cobwebs.
As a result, and I
thank Dave Thomas for his honesty and wisdom in calling this emergency meeting,
he realized that we had to again rehear this matter, make a motion for censure,
have it seconded and then voted upon.
That is very proper and the correct way of doing things. And this is a very serious action for the
Board to take.
Now as to the motion
to censure, it is composed of two parts.
The first is that I
wrote a letter to the Chairman of the NV Standing Committee on Judicial Ethics
dated November 9th, 2012 in the capacity of Treasurer of the VCHPOA
and without Board approval.
This has been a long
standing issue between myself and the Board.
I believe in transparency and think that people should be kept
informed. They can always ask questions
or attend our monthly meetings. However,
the Board had some valid concerns and I have had numerous conversations with
Sonja Merriweather of the Ombudsman Program regarding this issue. As a compromise, I agreed to make disclaimers
on public statements and in correspondence.
For the most part, I do so; sometimes I screw up and forget. But I did not forget in this letter of
November 9th. This is in
spirit with the instructions and guidelines I’ve gotten from the Ombudsman
Program and I try very hard to always comply with their advice.
First, the letter
was on personal stationary, not VCHPOA stationary. My signature clearly states, “Patrick J.
Flanagan, Treasurer, VCHPOA, This letter is not represented as a formal
position or request by the Board of the VCHPOA but rather the personal concerns
of a Board member and also homeowner in the interest of the community’s welfare
in Storey County.”
As this relates to a
matter affecting homeowner’s associations state-wide, I needed to make known
why I was asking for clarification in order for me to perform my duties as a
Director. It is just a prudent request
for clarification. The original advisory
did not appear to be addressing the real question of whether a Justice of the
Peace should be sitting on a Board of a Homeowners’ Association and having to
hear cases where the parties were homeowners of the Association. This could cause problems in the justice
system, causing a judge to recuse himself from cases and could interfere with
an impartial and fair hearing of cases coming before his court. Besides this, if a member of the Board feels
that the rest of the Board is making an incorrect decision or going to do so,
that Director has a fiduciary and ethical responsibility to research and bring
that information to the Board for reconsideration. Otherwise he would be negligent.
Before I wrote the
letter asking for clarification, I discussed this with the Storey Co. District
Attorney, Judge-elect Eileen Harrington, my attorney and others. There clearly was a conflict between their
positions and the advisory ruling. Even
more reason to get clarification on this matter. Otherwise, I would not be acting in a prudent
manner as a member of our Board.
District Attorney
Maddox went so far even as to authorize his position for public review: “It is
not advisable for the Board of the Homeowners to have a sitting Justice of the
Peace sitting also on the Board of the Homeowners’ Association.” End of quote.
This man has years of experience in the justice system and I’ve found
him to be both very intelligent and ethical.
Bill Maddox commands a high level of respect from the judicial community
for the years he has served on the bench and rightly so.
It was very clear
that there was a difference between people in the justice system and the
Standing Committee. This is not to say
that the original advisory was wrong or even in question. It is correct but the real question of
concern was not asked and this was what was causing the confusion and
conflict. More reason for me to request
clarification since we were soon going to consider appointing a Justice of the
Peace to our Board.
If I had not made
known my position as Treasurer of the VCHPOA, they might not have taken my
request seriously in that I don’t have a vested interest in this matter, and I
do. I think my disclaimer makes that
position very clear and is in the spirit of the Ombudsman’s advice in this
matter. It was the prudent thing to do.
The second part of
the censure motion deals with misrepresenting factual matters regarding issues
coming before the VCHPOA Board when meeting in executive session.
Perhaps I should
have been more clear in this regard as it relates to hypothetical situations
and events. Perhaps I should have made
it clearer that these events can occur in a regular meeting hearing as well as
perhaps in executive session.
Let me relate a real
situation, not hypothetical, as I remember it and consider the Justice of the
Peace being a Director of the Board. The
Board gets a call from a homeowner complaining about harassment from a member
of our road crew. A prudent Board must
respond and investigate this complaint or else they would be negligent by
opening up some possibility of liability.
To perform his duties as a Board member, the Judge would be involved in
this or have to recuse himself. The
investigation clears the road crew and the Board finds that everything was
acted upon by our road crew in a proper way.
The homeowner is
still not satisfied and they file a complaint with the Sheriff. The process eventually ends up in Justice
Court for resolution by the Justice of the Peace. Again, the judge may have to recuse
himself. All of this increases costs and
complicates the justice system needlessly.
I am sure that this is part of the reason for the District Attorney’s
advice. “It is not advisable for the
Board of the Homeowners to have a sitting Justice of the Peace sitting also on
the Board of the Homeowners’ Association.”
He is a very smart and experienced man.
In my letter, I am
discussing reasonable hypothetical’s which are supported by some actual
events. The heart of this matter is that
I had concerns about the Justice of the Peace sitting on the Board for a number
of reasons which were very different from the Advisory 12-011 situation. And I had substantial conflict between advice
from those in the legal profession and with this advisory. It was only prudent to ask for a
clarification and in the interests of all parties involved. I’m sure that Dave Thomas can draft a letter
as he proposes to clarify his concerns and I would support that. Anything that is helpful to getting a very
clear direction upon which the Board can make correct and good decisions has is
a good thing.
As a result, I think
I have made a very strong case for this motion to censure fail. I have acted prudently and in the best
interests of the Association to make good and wise decisions. I have strong support from the judicial
system and I have acted within my rights for the general welfare of the
association and the public at large. I
sincerely hope that the motion fails. I
take this action very seriously particularly since this is a volunteer
organization and that no member who works hard and gives up his time for that
organization should ever be censured except for some very serious action or
offense. If we are not careful, we will
not get anyone to volunteer for community services and dedication. And that would be tragic.
Finally, I would
hope that this move to censure is not politically motivated. I would be happy to see Judge McGuffey sit on
our Board once he is out of office and look forward to working with him. The election is over and maybe Storey
County’s loss of the judge is the homeowner’s gain.
David Copperfield:
“Whether I shall turn out to be the hero of my own life…this testimony must
show.”
