AG ruling basis for Palenick suit

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Faber said he did borrow heavily from Smith’s letter because it directly supports Palenick’s contention that his termination was illegal because it was decided by Governing Body members who met in violation of the state’s Open Meetings Act.

The suit contends that because the termination was illegal that Palenick has been on “approved leave,” which was allowed under his employment agreement with the city. As such, Palenick is seeking back pay of more than $130,000 dating back to Dec. 13, 2006.

Palenick’s contract was for $120,000 per year, which divided by a 365-day year, is equal to $328.77 every day. The suit does not specify the amount of back pay Palenick is seeking because “Mr. Palenick’s damages, which include unpaid salary and benefits, continue to rise because Defendant has not cured the Open Meetings Act violation.”

Contacted in Gastonia, N.C., where he is now the city attorney, Palenick said, “I’ve made a promise to a lot of people and I’m going to stick with that. And that (promise) is I’m deferring any comment to my attorney.”

City attorney Jim Babin said previously he would not comment on the case. But a possible preview to any defense can be found in actions of the Governing Body, which formally disputed Smith’s findings by adopting Resolution 99 on Nov. 14.

That resolution states that “the Governing Body conceptually and, in certain areas specifically, disagrees with the opinion of the Office of the Attorney General” and goes on to outline its own version and interpretation of the circumstances surrounding Palenick’s firing.

Meanwhile, former Rio Rancho resident Phil Sisneros, the spokesman for the attorney general’s office, said the state has only prosecuted one case against a governing body in the history of the Open Meetings Act.

Sisneros said once governing bodies are informed they have committed an Open Meetings Act violation, they generally re-conduct the business in a public setting to make it legal.

“Generally speaking, most governing bodies see the handwriting on the wall and put in the fix and cure it,” he said. “If they don’t, we can take them to court. The breaking point is different in each case. When that (court action) triggers, it’s hard to say. But the rule is we will eventually take them to court if they don’t cure.”

Sisneros said each individual member of a governing body is liable for fines under the law.

Also, the City Clerk’s office confirmed that the official date the suit was served was Jan. 16. The city has 30 days, or until Feb. 14, to respond.