Letter to the Editor—Justice Denied!
August 22, 2018
The misdeeds of the Board in its recent efforts to disqualify Director Cyndi Price are so simple and so clear they can be stated in four bullet points:
1. Cyndi was duly elected by a vote of the membership;
2. A director may only be removed if found insane by a court, convicted of a felony, is no longer in good standing, or by a vote of the membership;
3. The Code of Conduct requires a vote of the membership to remove a director; and
4. Since there was no vote of the membership to remove Cyndi from her elected position, the membership has been robbed of its voting power.
By and I were deeply disappointed that Bambi Flanigan found it necessary to publish her President's Report in the August 3, 2018 issue of TWI. Bambi previously read that self-serving and seriously misleading report at the July 24th Board meeting. Please consider the following additional information before you decide what to believe.
It was at the May 22, 2018 regular Board meeting that we first learned a majority of the Board had been meeting in secret executive sessions to plan the censure and disqualification of Director Cyndi Price. Director Price was not notified and was excluded from three of those meetings. We later learned that the Board had scheduled an executive session on June 8th to formally "vacate Director Price's board position," based on her alleged violation of the Code of Conduct for Board Members.
Because we knew the Code of Conduct did not authorize the Board to vacate a Board member's position, By Maynard and I contacted our attorney for a legal opinion on the issue. His opinion was that a Board member could only be recalled or disqualified based on four conditions set forth in the Association's Bylaws or by vote of the membership. We submitted that opinion privately to the Board prior to the June 8th executive session in hopes that they would be persuaded to abandon their plan to disqualify Director Price.
Unfortunately, the majority of the Board was not persuaded and voted to censure Director Price and vacate her elected Board position. Their decision stated that she no longer met the qualification requirements for service as a director based on "requirements for service as a director as set out in the LWWA Code of Conduct for Board Members."
The Code of Conduct has not been added to the Bylaws and does not specify any qualifications for service as a director or authorize the Board to involuntarily remove a director for any reason.
Under pressure, the Board scheduled a special Open Hearing on July 11th to review its earlier decision to vacate Director Price's Board seat. The meeting notice published extensive confidential information from the Censure hearings. Since Censure is discipline, Board members most likely breached their fiduciary duty to keep disciplinary information confidential.
A day prior to the hearing, Director Price notified the Board that she would be represented by Counsel at the meeting. Early the morning of the meeting, her attorney was called to an emergency court session in San Jose and advised us that he could be in Penn Valley by 2:15 PM, an hour and fifteen minutes after the start of the meeting. The Board was so advised but the President ruled the hearing would not be delayed to wait for her attorney.
Her attorney called at 2:15, notifying us he was on Pleasant Valley Road but construction had stopped him. The Board was notified he would be a few minutes late. Presentations ended at 2:19 and the Board considered a two-page resolution written prior to the meeting that confirmed their decision to disqualify Director Price. Without debate, the Board approved the resolution with 5 voting YES and 1 NO. The President again ruled that "the meeting was not waiting," and hurriedly called for a motion to adjourn. The meeting was adjourned at 2:28, two minutes before Director Price's attorney arrived, thus depriving her of legal representation and due process.
After the meeting, By and I discussed available alternatives with counsel and authorized him to file a Petition for Writ of Mandate, seeking an administrative decision from the Court that the Board had erred in disqualifying Director Price and that she be retroactively reinstated.
We were later asked to propose conditions under which we would withdraw our petition. We sent the Board a draft of the petition and indicated we would suspend it if the Board would retroactively reinstate Director Price and reimburse us the sum of $2,000 for costs we'd already incurred in her defense. Our proposal was rejected.
The Petition for a Writ of Mandate has been accepted by the Court and is scheduled for a decision hearing on November 30, 2018. We urge the Board to leave further argumentation about the propriety of its actions in this matter to Court proceedings.
We've had three General Managers in the last five years and there is now a majority of unelected members on the Board. We really need to begin working together to identify long-term solutions to the financial and administrative dysfunction that's plagued our community in recent years.
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