Former city manager says termination was illegal
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Faber said he has not received the
city’s response to the suit, which he said was served last week. The
city has 30 days from the date of service, which Faber said was Jan.
16, to respond to the suit. As such, no court date has been set.
Mayor Mike Williams
said he had not seen the lawsuit but “off the top of my head I’ll tell
you this much: It’s frivolous and a waste of time and taxpayer’s money.
It’s what I would expect out of Palenick and (former Mayor Jim) Owen, and make sure you’ve got that because he (Owen) is the driving force behind this.
“This man (Palenick) was an at-will employee. What part of at-will does he not get?”
Williams said the state’s anti-donation act prevents the city from paying Palenick.
“A
government entity cannot give out money and not receive something in
return,” Williams said. “If we were to pay him, according to his
records, we would be violating that law, wouldn’t we?”
City
attorney James Babin, interviewed before Wednesday's city council
meeting, confirmed the city had been served the suit but had no
additional comment.
"I will not ever comment about that man," he said.
The
complaint makes two contentions: The termination was illegal because it
was done in violation of the state’s Open Meetings Act and is a breach
of contract because Palenick has not been paid since his termination on
Dec. 13, 2006.
Palenick’s contract was for $120,000 per year
plus benefits. The suit contends because the termination was illegal,
Palenick is still an employee of the city and should be paid for the
past 13-plus months. At $10,000 per month, that back salary would total
more than $130,000 to date, and the lawsuit notes that "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."
In
specific, the suit seeks “unpaid salary and benefits, pre- and
post-judgment interest, costs and attorneys fees incurred herein and
such further relief as the Court deems just and proper." The suit also
seeks “an injunction invalidating Mr. Palenick's firing.”
Palenick
was first hired on July 25, 2003, and signed a contract agreement “for
an ‘indefinite term’ for Mr. Palenick to serve as Defendant's city
manager for $120,000 per year, plus benefits,” according to the suit.
“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.”
The suit goes on to detail how then-Mayor Kevin Jackson
met with various councilors to discuss his plan to fire Palenick, which
the state attorney general’s office has determined was a “rolling
quorum” in violation of the state’s Open Meetings Act.
“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,” he suit contends. “Until the Governing Body gives
proper notice, holds a meeting that complies with (state law),
re-discusses the specific matters and summarizes the comments made
relating to Mr. Palenick's employment status, Mr. Palenick remains
employed as Defendant's city manager.”
The suit contends
“under § 6 of the Employment Agreement, Mr. Palenick is on ‘approved
leave’” and was free to seek employment elsewhere. Palenick is now the
city manager in Gastonia, N.C.
“The public’s welfare would be
advanced by the issuance of an injunction voiding Mr. Palenick's
firing,” the suit states. “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.”
Click here to see a copy of the lawsuit filed by Jim Palenick against the city.
