District Judge George Eichwald ruled Wednesday that the city did not violate the state’s Open Meetings act in firing Palenick in 2006, and even if there was any violation it was  remedied by a second termination vote by the city council 11 months later. Eichwald also ruled that Palenick forfeited any claims to additional pay by accepting a severance package shortly after the time he was first fired by the Governing Body in December 2006.

The judge did, however, dismiss the counterclaim against Palenick by the city which could have left the former city manager liable for legal fees incurred by the defense during the process.

Palenick’s lawyer, Daniel Faber, said after the hearing he plans to file a motion for a new trial on Thursday. If that motion is denied, Faber said he would then appeal the case to a higher court.

In making his ruling, Eichwald indicated the plaintiffs did not prove their contention that the OMA had been violated because no evidence was submitted at the hearing. But Faber contended the judge had already ruled there had been such a violation and Wednesday’s hearing was only on whether Palenick was technically still a city employee between the two council votes on Dec. 13,2006, and November 14, 2007.

Faber said his filing would include previous court transcripts, including this passage from a hearing on Aug. 7, 2008:

“With regard to plaintiff’s motion, I’m also going to deny that motion -- let me be real clear for the following reasons. This court gives great deference to the attorney general’s opinion that there was a violation of the Open Meetings Act. I’m going to find that they corrected that by having the Nov. 14 meeting. I’m going to find that the only genuine issue of material fact in dispute is whether that cure is retroactive or not. So I guess what I am doing is narrowing that issue. I’m finding that the city cured it on Nov. 14, 2007 meeting but I’m not finding whether it is retroactive or not. So with respect to whether they cured it or not, I’m finding that they did cure it. Whether it takes retroactive effect, that is the issue that I am leaving before the court for purposes of a trial, in case gets that far.”

Said Faber; “Why would I put on evidence of a violation of the Open Meetings Act? He just told me not to because the issue has already been decided.

“I’m very disappointed.”

A request for a new hearing goes to the original judge, in this case Eichwald. An appeal would go to the state court of appeals, which could take months or years.



New councilor sworn