Below is the text of the lawsuit filed by former city manager Jim Palenick against the City of Rio Rio Rancho, as provided by Mr. Palenick's attorney, Daniel Faber:
STATE OF NEW MEXICO
COUNTY OF SANDOVAL
THIRTEENTH JUDICIAL DISTRICT COURT
JAMES M. PALENICK, Plaintiff,
v.
No. __________________
CITY OF RIO RANCHO, a political subdivision of the State of New Mexico, Defendant.
COMPLAINT FOR VIOLATION OF THE OPEN MEETINGS ACT
AND DEBT AND MONEY DUE
1. In this case, Plaintiff James M. Palenick illuminates his employer's breach of his employment contract. Defendant City of Rio Rancho hired Mr. Palenick as city administrator on July 25, 2003. On November 8, 2006 Mr. Palenick and Defendant
executed an Employment Agreement for an “indefinite term” for Mr. Palenick to serve as Defendant's city manager for $120,000 per year, plus benefits. On December 11 and 13, 2006 Defendant purported to fire Mr. Palenick, but because Defendant violated the Open Meetings Act, the action to fire Mr. Palenick was invalid. Mr. Palenick remains Defendant's employee, on approved leave under his contract. Yet he has not been paid since December 13, 2006, and Mr. Palenick's damages will continue to rise until Defendant cures the Open Meetings Act violation. Mr. Palenick now seeks the relief that the law affords.
2. Plaintiff is a resident of North Carolina.
3. Defendant is a political subdivision of the State of New
Mexico.
4. This Court has personal jurisdiction over the parties.
5. This Court is the proper venue for this action.
6. On July 25, 2003 Defendant City of Rio Rancho hired Mr.
Palenick as city administrator.
7. On November 8, 2006 Mr. Palenick and Defendant executed
an Employment Agreement for Mr. Palenick to be Defendant's city manager “for an indefinite term.” The Employment Agreement is attached hereto as Exhibit A.
8. Under § 2 of the Employment Agreement, Mr. Palenick is
allowed to do outside work on his own time with the advance
approval of the Governing Body.
9. By voting to fire Mr. Palenick on December 13, 2006, the
Governing Body gave Mr. Palenick advance approval to do outside work on his own time.
10. Sometime before December 11, 2006, Kevin Jackson,
Defendant's mayor, met with Councilor Williams at a restaurant in Rio Rancho regarding firing Mr. Palenick. Mayor Jackson told
Councilor Williams that he would let him know his decision after
he reviewed some documents. At this point, two members of the Governing Body had met to discuss the public business of Mr. Palenick's employment with Defendant.
11. During the meeting referred to in ¶ 10, Councilor Balmer appeared and Mayor Jackson told both councilors that he would inform them of any action he intended to take regarding Mr.
Palenick after his document review. Now, three members of the
Governing Body had met to discuss the public business of Mr.
Palenick's employment with Defendant.
12. On December 11, 2006 Mayor Jackson had a breakfast
meeting with Councilors Williams and Naranjo and told them that he intended to ask Mr. Palenick to resign later that day. Now, four members of the Governing Body had met to discuss the public business of Mr. Palenick's employment with Defendant.
13. Later on December 11, 2006 Mayor Jackson and Councilors
Williams and Balmer met with Mr. Palenick and Mayor Jackson
requested Mr. Palenick's resignation. Immediately after that
meeting, Mayor Jackson told Councilors Naranjo and Thomas, who were outside Mayor Jackson's office, that he had requested Mr. Palenick's resignation.
14. By the end of December 11, 2006, in a series of
meetings, five members of the Governing Body had met to discuss the public business of Mr. Palenick's employment with Defendant.
15. At its regular meeting on December 13, 2006, the
Governing Body voted to fire Mr. Palenick.
16. The minutes for the December 13, 2006 regular meeting
include no summary of discussion of any rolling quorum and make no reference to the previous discussions amongst a quorum of the Governing Body regarding Mr. Palenick's employment status and Mayor Jackson's decision to request his resignation.
17. Because a quorum of the Governing Body discussed public
business outside of a public meeting on December 11, 2006 and
failed to cure the violation at its regular meeting on December
13, 2006, Defendant violated the Open Meetings Act, NMSA 1978, §4 10-15-1 (1999), and the action to fire Mr. Palenick was invalid.
18. In a letter to Rio Rancho Deputy City Attorney Margot
J. Steadman dated September 21, 2007, the Attorney General of New Mexico concluded that the Governing Body's actions on December 11, 2006 violated the Open Meetings Act.
19. Until the Governing Body gives proper notice under NMSA
1978, § 10-15-3(B) (1997), holds a meeting that complies with § 10-15-1, rediscusses the specific matters and summarizes the
comments made relating to Mr. Palenick's employment status, Mr. Palenick remains employed as Defendant's city manager.
20. Under § 6 of the Employment Agreement, Mr. Palenick is
on “approved leave.”
21. Defendant has not paid Mr. Palenick since December 13,
2006.
22. Mr. Palenick's damages, which include unpaid salary and
benefits, continue to rise because Defendant has not cured the
Open Meetings Act violation.
23. On December 14, 2007 Mr. Palenick sent Defendant a
certified letter providing Defendant with proper notice of
Defendant's violations of the Open Meetings Act.
24. Defendants have neither denied nor acted on Plaintiffs'
assertion of the violations of the Open Meetings Act within
fifteen days of receiving it.
COUNT I
VIOLATION OF THE OPEN MEETINGS ACT
25. The preceding allegations are incorporated by
reference.
26. Defendant's acts taken in the purported firing of Mr.
Palenick violated the Open Meetings Act when a quorum of the
Governing Body discussed public business outside of a public
meeting on December 11, 2006, failed to cure the violation at its regular meeting on December 13, 2006, and failed to provide
proper notice of the December 13, 2006 regular meeting.
27. The public’s welfare would be advanced by the issuance
of an injunction voiding Mr. Palenick's firing.
28. Under NMSA 1978, § 10-15-3(B) (1997), Mr. Palenick
provided Defendant with proper notice of Defendant's violations
of the Open Meetings Act, and Defendants have neither denied nor acted on Plaintiffs' assertion within fifteen days of receiving
it.
WHEREFORE Mr. Palenick prays for a judgment for violation of
the Open Meetings Act by:
A. Issuing an injunction invalidating Mr. Palenick's firing.
B. Awarding attorney’s fees and costs to Mr. Palenick
pursuant to NMSA 1978, § 10-15-3(C) (1997).
C. Awarding Mr. Palenick such other relief as the Court
deems proper.
COUNT II
DEBT AND MONEY DUE
29. The preceding allegations are incorporated by
reference.
30. Defendant's performance under the Employment Agreement
is to pay Mr. Palenick $120,000 per year, plus benefits.
31. Because Defendant's violations of the Open Meetings Act
render its firing of Mr. Palenick invalid, he remains employed
under the Employment Agreement.
32. Defendant has continuously breached the Employment
Agreement since December 13, 2006, when it last payed Mr.
Palenick.
WHEREFORE Mr. Palenick prays for a judgment for breach of
contract for:
A. Unpaid salary and benefits.
B. Pre- and postjudgment interest.
D. Costs and attorneys fees incurred herein.
F. Such further relief as the Court deems just and proper.
Respectfully submitted,
__________________________________
Daniel M. Faber
Attorney for Plaintiff
4620C Jefferson Lane NE
Albuquerque, NM 87109
