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
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.
There being no further business, the meeting was adjourned at 8:33 pm.
Mr. Patrick J. Flanagan
P.O. Box 427
Virginia City, NV 89440
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.
Patrick J. Flanagan
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.
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.”
November 19, 2012
The Honorable Michael A. T. Pagni, Chairman
Standing Committee on Judicial Ethics
P.O. Box 48
Carson City, NV 89702
Re: Letter from Mr. Patrick J. Flanagan dated November 9, 2012 regarding Advisory Opinion #12-011
Dear Mr. Pagni:
The Board of Directors of the Virginia City Highlands Property Owners’ Association (“the Association”) received a copy to the above referenced letter addressed to you. A copy of this letter is at Attachment No. 1. It is the opinion of the Association’s Board of Directors that the letter contained a material misstatement of fact, presented information regarding the Association in a manner that is misleading, and was signed in such a manner as to lead to ambiguity regarding the position of the Association’s Board. Prior to addressing these issues I will provide you with background information relating to the Association.
The Association, one of the older common interest communities in Nevada, was initially incorporated in 1972. The Association actually commenced operation during July 1979 when the first Board of Directors was elected. The primary purposes of the Association are:
The Association’s governing documents limit the power and authority of the Association to the accomplishment of these three purposes. The management of the Association is additionally subject to the provisions of NRS Chapter 116 – Common-Interest Ownership (Uniform Act).
Traffic laws on the Association’s 14 miles of private roads are enforced by the Storey County Sheriff’s Department. In August 1991, the Association dedicated the private roads for law enforcement purposes only to Storey County and the county accepted this dedication.
Since the Association commenced operation in July 1979, the Association has never been a party in any action or litigation coming before the Virginia Township Justice Court. During this 33 year period, the Association has been a party in litigation filed directly in the First Judicial District Court two times.
Material Misstatement of Fact:
The second sentence of the fourth paragraph in the letter states: “Often the Board must deal in executive session regarding property right issues between neighbors and/or in violation of our CC&R’s.” This statement is inaccurate in that the Association never deals with “property right issues between neighbors”. The Association has no authority under either its governing documents or NRS 116 to do so. Further, in the event that any member of the Association brought to the Board’s attention any legal or other issue not related to the enforcement of CC&R’s/Architectural Guidelines, this issue would be dealt with in the regular Board meeting open to all Association members, not in executive session of the Board. NRS 116 strictly limits what matters can be discussed by the Association’s Board when meeting in executive session, and discussing “property rights issues between neighbors” while in executive session is not permitted:
3. An executive board may meet in executive session only to:
(a) Consult with the attorney for the association on matters relating to proposed or pending litigation if the contents of the discussion would otherwise be governed by the privilege set forth in NRS 49.035 to 49.115, inclusive.
(b) Discuss the character, alleged misconduct, professional competence, or physical or mental health of a community manager or an employee of the association.
(c) Except as otherwise provided in subsection 4, discuss a violation of the governing documents, including, without limitation, the failure to pay an assessment.
(d) Discuss the alleged failure of a unit’s owner to adhere to a schedule required pursuant to NRS 116.310305 if the alleged failure may subject the unit’s owner to a construction penalty.
In the event that an Association member raised a “property rights issue” with neighbors, the Association member would be advised that the Association’s Board has no authority to take any action and would be advised to either contact the Storey County Sheriff’s Office or to obtain legal counsel.
The second sentence of the fifth paragraph in the letter states: “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”. The Association contains 1,169 1-acre lots and the Association has approximately 750 members, reflecting the fact that many property owners own multiple lots. There are currently approximately 370 houses (i.e. homeowners) located on the 1,169 lots, with the remaining lots being vacant. The vacant lots are owned primarily by absentee owners who do not reside in Storey County.
There are no 10-acre lots in the Association. The 506 10-acre lots are in a different property owners’ association, the Highlands Ranches Property Owners’ Association (“HRPOA”). The HRPOA has its own Board of Directors and is subject to a different set of governing documents. There are currently approximately 150 houses (i.e. homeowners) located on the 506 HRPOA 10-acre lots.
Ambiguity Regarding the Position of the Association’s Board
Mr. Flanagan signed the letter as an officer (Treasurer) of the Association and then made a disclaimer stating that the letter was not a formal position of the Association’s Board, leading to ambiguity regarding the position of the Association’s Board. He did not did not notify the Association’s Board of the letter until after the letter had been sent. The formal position of the Association’s Board, by a vote of the majority of Directors, is that the probability is extremely remote that the Justice of Peace’s impartiality would ever be influenced as a result of serving on the Association’s Board, as is the probability of the Justice of Peace having to recuse himself.
Mr. Flanagan exceeded his authority by signing the letter as an officer of the Association. As a result of his actions, a majority of the Association’s Board of Directors have voted to formally censure him. A copy of the censure resolution is at Attachment No. 2.
David B. Thomas
President - Virginia City Highlands Property Owners’ Association, on behalf of the Association’s Board of Directors
1935 Saddleback Road
VC Highlands, NV 89521
(775) 823-3777 (work)
(775) 847-9604 (home)