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.