It’s against the law for anyone to bully or to create a hostile environment for anyone in a Nevada HOA.
NRS 116.31184 Threats, harassment and other conduct prohibited; penalty.
1. A community manager, an agent or employee of the community manager, a member of the executive board, an officer, employee or agent of an association, a unit’s owner or a guest or tenant of a unit’s owner shall not willfully and without legal authority threaten, harass or otherwise engage in a course of conduct against any other person who is the community manager of his or her common-interest community or an agent or employee of that community manager, a member of the executive board of his or her association, an officer, employee or agent of his or her association, another unit’s owner in his or her common-interest community or a guest or tenant of a unit’s owner in his or her common-interest community which:
(a) Causes harm or serious emotional distress, or the reasonable apprehension thereof, to that person; or
(b) Creates a hostile environment for that person.
2. A person who violates the provisions of subsection 1 is guilty of a misdemeanor.NRS 116.31184
Why are Seddon and Clarkson exempted from this law in Sun City Anthem’s newly published policy?
Clarkson wrote the Sun City Anthem policy a bit too narrowly:
The law says community manager, employees, and HOA agents are covered:
A community manager, an agent or employee of the community manager, a member of the executive board, an officer, employee or agent of an association, a unit’s owner or a guest or tenant of a unit’s owner shall not willfully and without legal authority threaten, harass or otherwise engage in a course of conduct against any other person
Did Clarkson misquote the law TWICE?
Opps! It looks like Clarkson accidentally forgot TWICE to make the law apply to himself or Seddon if they are accused of bullying .
Clarkson’s anti-bullying policy only applies to acts against them.
“Such a violation may subject the violator to a fine commensurate with the severity of the violation and any other appropriate remedies available to the Association”Clarkson’s anti-harassment policy for Sun City Anthem owners
Could it be because foreclosure could be an “appropriate remedy”?
I guess all Clarkson would have to do is deem my complaints against him and Seddon were health, safety and welfare violations that subjected me to a fine commensurate to the severity of my horrific conduct.
Then, HOA attorney and debt collector Clarkson could impose other “appropriate remedies available to the Asociation” and foreclose on this house too when I refused to pay.
The law says an HOA can’t foreclose on a fine unless the violation poses a threat:
The association may not foreclose a lien by sale based on a fine or penalty for a violation of the governing documents of the association unless: (a) The violation poses an imminent threat of causing a substantial adverse effect on the health, safety or welfare of the units’ owners or residents of the common-interest community;NRS 116.31162 (6)
Is it ethical for Clarkson to claim the anti-bullying law doesn’t apply to him or Sandy Seddon?
Short answer. No.
He should be fired immediately.
Clarkson knowingly revised the law to exclude himself and Sandy Seddon.
This is one more example of unethical self dealing.
Please consider this Nevada HOA retaliation case where attorneys claim to be exempted from being considered agents of the HOA under the retaliation statute NRS 116.31183.
“We conclude that an attorney is not an “agent” under NRS 116.31183 for claims of retaliatory action where the attorney is providing legal services for a common-interest community homeowners’ association. ” Dezzani v. Kern & Assocs., Ltd., 412 P.3d 56 (Nev. 2018). Link to Dezzani PDF.
The word “agent” is not defined in NRS 116.31183 or otherwise in NRS Chapter 116. SeeNRS 116.31183 ; NRS 116.003 –.095 (definitions). Kern points to NRS 116.31164, which governs foreclosure of liens, and argues that because NRS 116.31164 uses the words “agent” and “attorney” distinctly, it demonstrates that the Legislature purposefully distinguished an attorney from an agent under NRS Chapter 116. Therefore, Kern contends that the Legislature specifically omitted attorneys from NRS 116.31183, and the term “agent” does not include attorneys.Dezzani v. Kern & Assocs., Ltd., 412 P.3d 56, 59 (Nev. 2018)
Given an attorney’s ethical obligations to be candid with a client and zealously represent his or her client, and the general presumption that an attorney providing legal services to a client is generally not subject to third-party liability for that representation, we agree with Kern and the amicus curiae State Bar of Nevada that the two relationships should not be treated the same in NRS 116.31183. Doing so, and imposing liability on an attorney for representing his or her HOA client, would impermissibly intrude on the attorney-client relationship and interfere with an HOA’s ability to retain an attorney and the attorney’s ability to ethically represent the HOA. Therefore, we conclude that the term “agent” in NRS 116.31183 does not include an attorney who is providing legal services to, and acting on behalf of, a common-interest community homeowners’ association.
Although the Dezzanis argue that the attorney-client relationship is different when an attorney and an HOA are involved because the HOA members’ fees are used to pay the HOA’s attorneys, we disagree. Kern represented the HOA, not its individual members. Thus, similar to counsel for a corporation, Kern owed fiduciary duties only to the HOA, not to the individual members of the HOA. See Skarbrevik v. Cohen, England & Whitfield, 231 Cal.App.3d 692, 282 Cal.Rptr. 627, 635 (1991) (“[C]orporate counsel’s direct duty is to the client corporation, not to the shareholders individually, even though the legal advice rendered to the corporation may affect the shareholders.”).Dezzani v. Kern & Assocs., Ltd., 412 P.3d 56, 62 (Nev. 2018)
To whom does Clarkson owe a fiduciary duty?
Clarkson’s fiduciary duty is to the Association, not to me as an individual member of the association or to me, previously as a single elected member of the board.
Clarkson’s representation of Sandy Seddon’s interest vs. those of the HOA is a breach of his fiduciary duty to the HOA. Acting on his own initiative, or getting assignments or taking direction from Sandy Seddon, is usurping the authority of the Board.
Clarkson breached his fiduciary duty to the HOA, and that’s why I want the HOA to sue Clarkson for damages under the NRCP 23.1 shareholder derivative provision.
The Board doesn’t understand how he has breached his duty to the HOA and is not willing or able to protect the association from him. I can represent the HOA as a single member, but I just think it will be harder to prevail because Clarkson is so willing to defame me, turn me into a pariah and bury the HOA in fees to try to protect it from me.
Respondeat superior is Clarkson’s escape hatch when he is usurping the authority of the HOA Board.
Here’s what Clarkson said in his 8/24/17 letter removing me from my elected Board seat
Clarkson had no legal authority to remove me from the Board. The discussion in the Board executive session in the morning was to get the Board to respond to my notice of intent against Clarkson and my Form 514a complaint against Seddon and her sidekick Lori Martin.8/24/17 Clarkson’s imaginary statement of the law that conveniently ignores the black letter of the law in NRS 116.31034, NRS 116.31036, NRS 116.31084(1)(a)(b), and NRS 116.4117,
8/16/17 Notice of Intent to file a professional ethics complaint against Clarkson
I served notice on 8/16/17 of my intent to file a professional ethics complaint against him to the State Bar of Nevada
8/11/17 notice of intent to file an ethics complaint against Sandy Seddon
8/11/17 notice of intent to file Form 514a