Revenge on the Tiger 

By Pat Flanagan

            What is to follow is probably one of the most unusual and strangest stories from Viet Nam.  It actually starts and ends with PFC Gerald R. Olmsted, member of the 196^th Infantry but assigned to serve in Company A, 3^rd Battalion, 8^th Infantry, 4^th Infantry Division.

            Private Olmsted was born on August 6, 1947 and died on January 10^th, 1969, in the service of his country.  He was 22 years old.  It is to him that I hope this story helps us all to remember and honor him and others for their sacrifice.

             Though I never knew Private Olmsted, our paths would later cross each other as fate would have it.  We shared a kind of kinship in that we both did LRRP’s, Long Range Reconnaissance Patrols.  Basically this type of mission is where about four infantryman leave their base for a number of days, usually four or five, go out into the jungle and look for the enemy.  As long as you don’t find them, it is fairly safe, but the situation quickly changes if you do find them.  In that case, you often are outnumbered and in need of extreme help.

            I used to tell the men in my LRRP’s, “Our mission is to find the enemy, but, once off the base, I am the commanding officer and now our mission is to hide from the enemy.  If they find us, we will radio in that we found them and pray.”  Somewhat questioning, my response was that this was a good strategy for staying alive.  I never had a problem with anyone not following orders.

            What happens is that the LRRP usually leaves their base and starts moving through the jungle toward their first position that was established by the “powers that be” on the base.  This is usually where the LRRP spends the night.  Often the jungle would be so thick and they might have to change the position as night began to fall.  In that case, we would call into the base to let them know exactly where we were.  This was important so that if any artillery was fired or jets dropping bombs, they shouldn’t do this in an area where we happened to be.  Unless we needed to call artillery onto ourselves for self-defense, and sometimes that would happen.  Being able to read a map and compass is a life-saving skill in those cases.

            Once at the site, we would secure the area by placing Claymore mines all around us, setup our ponchos into a ground cloth or tent, and then make a quick dinner before nightfall.  Once night hit, we would then establish guard duty and scheduling.  One man would stay up listening for any strange movements or sounds while the others slept.  After a time, he would wake the next man up for his duty and go to sleep.

            The next day, the process would repeat itself all over again until the time of the LRRP was over and one could head back to their base and its safety.  Generally the hardest part of the LRRP was staying awake during your guard duty.  Nobody to talk to, one shouldn’t move a lot or make noises and no smoking cigarettes as the smell would give away one’s position.  Most of the time, it was very boring and often one would doze off.  Now that was a court martial offense as you had just then jeopardized everyone’s life.  But it happened.  Particularly after a long and grueling walk in the jungle with full back packs.  It was natural to be tired, even somewhat exhausted.  The heat, the humidity, the jungle, the insects, the leeches, all took a toll on wearing one out.  Periodically we would radio back to our base to let them know we were still alive, safe and secure.

            On January 10^th, 1969, Private Olmstead went out on a mission just like this with three others of his brothers.  The next morning, upon waking up, Private Olmstead was gone.  Vanished in the middle of the jungle.  I cannot imagine the shock of the remaining men.  What I think happened is that during the night, one of the men fell asleep while on guard.  It couldn’t have been the enemy as they would have killed all of them.  Something had come in during the night and silently took Private Olmstead away.  It was a very large tiger.

            Nineteen days later, on a similar type of patrol, during the night, Specialist 4 Raul Lerma Segovia, a member of the same unit, also was killed probably by the same tiger.

            Spec. 4 Segovia was in B Company, 3^rd Battalion, 8^th Infantry, 4^th Division and on a LP (Listening Post) that night.  Both men died of wounds sustained from a tiger.  It could not have been a very pleasant death.  Both men were recognized as one of the most unusual fatalities in the Viet Nam war.  Clearly tigers are very territorial and this one was especially so.

            But the story has somewhat of a happy ending.  By now the 3^rd Battalion of the 8^th Infantry was fighting mad.  They weren’t stupid and knew they had the “tiger by the tail”.  They wanted revenge.  Even up the score, so to speak.  It was soon after that some great men went out and finally shot the enemy.  And they brought the body back to Dak To for a proper burial.  Mostly I think they just wanted to prove that they had killed the tiger and bask in the glory of revenge.  It certainly was the highlight of my day.  A lot of beer was consumed that night in celebration.  And we didn’t even need a hunting license in those days.  The tiger killings abruptly stopped from that day on.  And I have the pictures to prove it.

To this day, I always love to eat Kellogg’s Frosted Flakes.  Kind of like I’m eating “Tony the Tiger” and it just feels so “GREAAAAAAAAT”!.  My revenge after so many years after the tiger killings of Viet Nam.

May God rest the souls of all those who died in Viet Nam from tigers, snakes, and rats.  Their sacrifice was just as important to remember as all the other casualties of the war.

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

MrSquid1@aol.com

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 9^th, 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 9^th, 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 9^th.  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.”

 

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 9^th, 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 9^th, 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 9^th.  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.

 

 

My Fight Against Censure

At this time, there will be an Emergency Meeting at the Firehouse at 7:00 p.m. on November 19th. The purpose of this meeting is to pass a motion to censure me for sending a letter to the Commission in regard to Advisory 12-011 asking for clarification. A copy of the original letter is below.

I have asked the Storey Co. DA to attend this meeting and he can't due to excessive workload. However he has authorized me to quote him directly.

"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." That is an exact quote.

 

This advice is given based upon shared concerns in regard to what I expressed in my letter in regard to Advisory #12-011. I have every right to ask for clarification on this ruling. The reason for this is that it would probably cause the judge to recuse himself in a number of cases where homeowners have to appear before the Justice Court. This in turn raises the cost of government and the cost of all taxpayers and homeowners. There is also the possibility of not getting a fair and just hearing in our courts due to mistakes or bias. We are all entitled to the "Due Process of Law" and that law has to follow procedures.

 

The original advisory does not address this issue and that is why I asked for clarification. It is my opinion that the DA's advice is correct and based upon his personal experience in the legal field. I have acted in this matter not only as a concerned citizen but also as a homeowner who wishes to keep my property taxes down. Certainly this is not cause for censuring me by the Board. And I still maintain that I have acted in good faith as your Board representative in trying to make our lives better and easier. I have nothing to gain from this and feel that my actions were in the best interests of all homeowners. I certainly do not deserve censure. If you agree with me, come to the meeting or call the Board members to voice your position. Or you can email to the board at

board@vchpoa.org

Hopefully you will support my efforts. And thanks to those of you who have also called me in support. It is important to make one's voice heard.

Mr. Patrick J. Flanagan

P.O. Box 427

Virginia City, NV 89440

MrSquid1@aol.com

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.