Open Meetings complaints could impact election

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A draft response on Clayton’s complaints has been completed and is being reviewed by the chief deputy attorney general Albert J. Lama, said Betsy Glenn, the assistant attorney general in the civil division who is now in charge of the investigation.

“It shouldn’t be too much longer,” she said. “I’ve taken it upstairs to the Deputy Attorney General for review.”

Glenn was assigned the case when Corliss Thalley, who was initially assigned the case, retired.

Glenn would not say what her findings were, but did say that the city did not submit affidavits from the individuals involved as requested in an Oct. 15 letter from Thalley to Mayor Mike Williams. Instead, Williams responded with a letter dated Nov. 1 directly to Attorney General Gary King, in which he chided the AG for “being used as a pawn for erroneous accusations which arise from the political nature of wanna-be elected officials.”

Clayton was appointed by former mayor Jim Owen to fill the District 6 vacancy created in 2003 when Dave Bency was elected to the Sandoval County Commission. He lost his bid for election to the seat in 2004 but is one of five candidates in the race this year.

Clayton filed his complaint on Oct. 1.

Depending on when the ruling comes down, two of the three points may be moot. Clayton contends the selection of Williams as mayor and Fay Davis as his replacement in city council District 1 violated the Open Meetings Act because a decision was reached without any public discussion, an implication that a decision had been made prior to the meeting.

Both Williams’ and Davis’ term of office will expire a few days after the election when their successors are sworn in. A ruling against the city could impact the race in District 1 council race, where Williams is seeking to return to his old seat, and District 4, where two-term councilor Howard Balmer is facing a tough head-to-head race against Steve Shaw.

Clayton’s third complaint is based on reporting by former Rio Rancho Observer reporter Tom Trewick, who observed four councilors talking together at the dedication of City Hall on Sept. 12.

Trewick, who is now a reporter in Bentonville, Ark., previously recounted what he saw for The SCORE.

“On the date in question, I witnessed four councilors talking in the hallway between the entryway and the council chambers,” Trewick said. “The four were Howard Balmer, Fay Davis, Delma Petrullo and Patty Thomas.
 
”When I first approached the group, Delma gave me a dismissive wave with her hand, which I interpreted to mean they wanted privacy. I said aloud, ‘There are four councilors,’ at which point Delma turned her back on me and they continued talking.
 
“At first, it was innocent enough, as Balmer was detailing to Davis the location of water and wastewater lines in the City Center, but Balmer soon went on to tell Davis of the necessity of the loans and bonds
paying for that infrastructure. One such loan was on that night's agenda.

“Later that night, Delma told me that they were not discussing what I heard them discussing. Patty said she was not aware that there were four of them or she would have left. Fay said she was told what they were doing was allowed. Howard refused to comment.”

The four councilors were named in Clayton’s third complaint.

 Williams is running against Peter Rivas and Rosemary Owen, the wife of former mayor Owen, who filed a previous Open Meetings complaint against the city regarding the termination of former city manager Jim Palenick. Though Williams is not included in Clayton’s complaint, both Owens’ have cited ethical reform as a major issue in their campaigns.

Meanwhile, the deadline for the city to respond to a lawsuit by Palenick came and went last week. The suit, filed by Albuquerque attorney Daniel Faber, was received by the city on Jan. 15, which by law has 30 days to respond. Depending on whether the response period started on Jan. 15 or the next day, the deadline was either Thursday or Friday.

The response window is further clouded by two federal holidays on Jan. 21 (Martin Luther King’s Birthday) and President’s Day (Feb 18). The 13th Judicial District Court was open on Monday, but no response had been filed less than 30 minutes before closing time at 5 p.m.

The suit is based largely on a ruling by the Attorney General’s office that the city illegally fired Palenick by conducting business in a “rolling quorum” when then-mayor Kevin Jackson met with councilors to discuss his plans to get rid of Palenick. In the lawsuit, Faber quotes extensively from a Sept. 21 letter of notification of violation to the city from assistant attorney general Mary H. Smith.

Faber and Palenick contend that the termination was illegal and as such Palenick should still be receiving his pay of $10,000 per month plus benefits.

The city has turned the case over to the New Mexico Municipal League for its defense. The Municipal League, which serves as kind of a risk-management insurance pool for all municipal governments in the state, has hired attorney Randy S. Bartell of the Santa Fe law firm of Montgomery and Andrews to represent Rio Rancho in the case. Bartell could not be reached for comment on Monday.

Faber also could not be reached on Monday, but said last week he had seen a draft response to his lawsuit that included a request that the case be dismissed “to which I responded no,” he said.

Faber said the draft also included a counterclaim by the city against Palenick seeking the return of a lump-sum settlement the former city manager received as he departed. Faber said his client would gladly return that payment because it would confirm Palenick had not been fired, therefore strengthening his argument for full back pay and benefits.

Though a judge can issue a summary judgment in a case when a response is not filed on time, Faber said it very rarely happens. Most judges want to see a case decided on its merits and will excuse a delay of a day or two, Faber said.