I just spent some time watching the official court hearing video recording purchased from the county clerks office. I transcribed Chief Justice Roses ruling and comments in their entirety to the best of my ability for those that would like to read his exact wording and comments. I apologize if any sentences dont make sense, there were a few parts on the recording that were hard to understand and I did my best to make them out. Forgive this for being rather long, and if it is in violation of any of this boards rules that I am not aware of, feel free to take it down. It is simply in the interest of getting the information out there from the source. Chief Justice Rose Ruling Transcript Rose: This is a difficult case. It is almost like family against family in this small community and it is unfortunate. But these things happened and that is why courts are here. We have before us the hearing on the motion for injunctive relief of temporary injunction that would take various action on a temporary basis for the rest of this case. They have to show the plaintiffs that they have a better than a 50/50 chance, more probable than not, than succeeding on the issue or on the entire case and that irreparable harm will be done if action is not taken now. I’m going to take the issues in order as stated: With regard to the August 7, 2014 meeting, where Mr. Gianoli and Mr. Leith were removed, Nevada law requires, and that is the Open Meeting Law which is a very strict law and a very important law to Nevada, that agendas for a public meeting be put out three days prior and that a clear and complete statement of an agenda item be made. The notice that was given for that meeting was Trustee Setterstrom, “Discussion for possible action: Removal of office of up to two White Pine Historical Railroad Foundation Management Board members for reasonable cause.” That is it. This is neither clear, nor complete. It doesn’t name any specific board member, it doesn’t give any reasons why this action was being taken. Mr. Setterstrom you had seven or six items you mentioned here, they would have been just fine had you listed them in the notice as part of the agenda, but it wasn’t listed. And you can’t fill in the blanks right before the meeting starts. The law does not permit that. The vote to remove Mr. Gianoli and Mr. Leith was illegal and void. They are returned to their prior positions on the Management Board. Any appointed replacements is voided because that action would be null and void because there was no legally recognized vacancy. I can’t do this unless I find irreparable harm and I do find irreparable harm because we had abundant statements that these two gentlemen were the two top-ranking men on the board of trustees and because it was and is a very difficult time for the board members at this time. And for all the other reasons the plaintiffs have stated I find irreparable harm unless this immediate action and temporary injunction is issued. I also find that NRS 241.033 requires that whenever the competence, character or alleged misconduct on any member or public person is to be taken they are to be given notice of that fact. Three days in advance. No notice, as stipulated, was given. This is so you cannot have removal or sanctions imposed by ambush. And that appears to be what has happened. There also was a violation, or rather two other violations, in regards to the packet and the person to be contacted. Those are lesser violations but I consider them also as a package of four violations of the Open Meeting Law. Now I would like to go to the June 26, 2014 meeting. That is a statement made on the agenda by Trustee Hanson for “Discussion for possible action: Consideration to authorize a forensic audit of the White Pine Historical Railroad Foundation.” This is a much closer case as to whether that is a clear and concise statement and I have gone back and forth on that. I’m finding that it is a reasonably clear and concise statement, at least enough to pass muster. The reason I make that conclusion is because it has the word forensic in it. If it didn’t have that word forensic in it, I would be making that same conclusion that it wasn’t concise. But forensic has a certain meaning and I think that gives you enough notice about what they are going to do and what they are going to be asking. The fact about how much it is going to cost wasn’t in there, that was certainly something that was discussed at the meeting as well as the why, which was discussed at the meeting. I think that agenda item was sufficiently clear and sufficient. So no injunction relief will be given with regard to the authorization of the forensic audit or its continuation. Now the big question was whether sufficient grounds were shown for reasonable cause to remove the two members. As we know, reasonable cause is defined as misfeasance, malfeasance, or commission of a felony. With regard to the issue that I’ve decided concerning the August 7th action, my taking action on this is minimal because the defendants are restored to their position. It doesn’t matter if they had reasonable cause or not. And I don’t have the transcript of the August 7th meeting. I’ve heard tidbits of it and I may take it with me and I will probably take that issue under advisement as to whether or not there has been reasonable cause for removal shown. Even though the concern to issue that has been diminished due to my prior decision. Now are there any questions the attorneys have with regards to what I have announced? Defendant’s Attorney: Your honor, I’m not sure it is a question as more of a clarification as to what you decided and it is relating to the forensic audit portion. There was a portion of the earlier order from this court, staying anything being done with respect to the records that were obtained or obtaining additional records. Based on your ruling I would understand that we are able to go forward with that audit and to obtain the records and work with them as the auditor deems appropriate. Rose: You may. Defendant’s attorney: The other issue is to the Open Meeting Law violation as to the removal. I see that more in context the remaining issue being of reasonable cause. As to whether you are going to adjoin the city council and the board of trustees as to another attempt should they decide to do that at removing. Obviously, currently they are back in place as members of the foundation’s management board. I don’t know what they are going to do because they haven’t told me but for sake of discussion, if they were to go forward with another attempt to remove and they specified based on the Open Meeting Law, would they be precluded based on this court’s order from doing so? Rose: No. No, they are not precluded from going forward. But I would just like to advise them if they are going to do that. This is a serious law. You ladies and gentlemen violated it. I know it is not your custom to violate the law but you did. And if you didn’t know about it then your attorney certainly should have and told you not to, and when you moved to file your attorney should have stood up and said you cannot do that. You cannot remove them on this record. I have heard none of that and that certainly should have happened. And yea, I get angry when you don’t follow the law because it is my duty to enforce it. But if you want to go ahead and notice it again, you may do that. That is your prerogative. Following the, and I think you may all want to go read the Open Meeting Law, before you try it again (laughs) and you take another shot at it. And I may comment that following the misfeasance, malfeasance and commission of a felony, those are reasonably serious matters. That is not just her didn’t send me a letter last week. So you have to think twice about whether you want to do it. And about the issues of damages, I cannot impose damages, especially on a preliminary finding. I can at a later time assess attorney’s fees and costs. We will have to cross that bridge at a later time at trial or at some later point. But for reference, when the Educational Board removed the Director of Education in Nevada just recently, each member was fined $1,500 and the board was assessed $60,000 in attorney’s fees. So this can become not only embarrassing, but also very costly. And the Attorney General has the right to come in whenever a violation occurs and ask that sanctions be imposed. And she may be right behind me with this order, I don’t know. What I am saying is that this is a serious order, I mean a serious law, that is strictly enforced. And if you are on a public body, you should walk around on a secular basis with the United States Constitution in one pocket and the Nevada Open Meeting Law Manuel in the other, because it is something that important to you. I know that in the past 10 years, the board have acted as co-equals, but candidly this was at the choice of the Board of Trustees. Now things have changed. You might say in western lingo that there is a new sheriff in town and that sheriff is the newly comprised Elko (I think he meant Ely) City Council. And things have changed. Both parties have to get used to it. I think the Management Board has to be more forthcoming and realize that they do have a boss. And on the other hand, the Board of Trustees cannot be asking for continual requests for this, get me that, I want that. In fact a procedure and protocol should be set up for getting information and getting back to one another. You might continue that mediation through that Ad-Hoc group. It is a lot easier to try and work things out and a lot cheaper to than to go to court and have a stranger like me have to make a decision for you. But in the final analysis, the Board of Trustees has the final say and the power and judgment. As far as Mr. Gianoli and Mr. Bassett and his wife, I think they have been truly dedicated to the railroad and have done an awful lot for it and it has probably cost them a lot of money and time. I know it has cost Mr. Bassett a lot of time and money. So I am not in any way faulting you in this ruling in fact I am agreeing with you on the removal. But, this is new times. This is a new day for the railroad and I think we all have to adjust to it. But to the Board of Trustees, the only thing I can say is, if it isn’t really broken, well you don’t really have to fix that much. And also, by your interaction, you might kill the goose that lays the golden eggs, and that is the railroad. You all want it. Mr. Setterstrom told me that provided him a tremendous boost to his business. I’m sure Mrs. Van Camp would say the same thing. And if you are going to fight like this, it could all just fall down and implode upon you and I would hate to see that. It is a wonderful thing and a real treasure to White Pine County and indeed to the State of Nevada. So, with those kind of cautionary remarks about continuing, I would much prefer to see you try to work it out. And if that involves a mediator or some sort of facilitation, then I would greatly encourage it. I would ask that the plaintiffs would prepare the remarks I have made in an order and present them to me and the defendants. (Rose then goes on to ask if the plaintiffs have any questions and Scott Husbands just asks if the judge would like a transcript of the August 7 meeting to which he said he would.) Hope those in this group find this helpful. Full discretion, I plan on posting this exact post in the other political Facebook group. Thank you.
Posted on: Tue, 21 Oct 2014 02:05:20 +0000
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