Rio Rancho appeals ruling to NM Supreme Court

January 16, 2012 • State News

ALBUQUERQUE, N.M. (AP) — The city of Rio Rancho wants the New Mexico Supreme Court to reverse a ruling that found the mayor and city council waited too long to fix open meeting laws violations.

A November state Appeals Court ruling effectively said a city can’t wait nearly a year to correct Open Meetings Act violations. The Albuquerque Journal reports (( the city maintained in a high court filing last week that the opinion was inconsistent with state law and would harm the ability of governing bodies statewide to function effectively.

Former city manager James Palenick sued in 2008, citing an Attorney general’s opinion that said conversations former Mayor Kevin [auth] Jackson and several city councilors had before they voted to fire him in late 2006 violated the open meeting law. He claimed he was due more than $120,000 in back pay.

The Appeals Court said a Council re-vote about a year after the firing didn’t repair the open meetings law violation. Among other provisions, the Open Meetings Act prohibits a quorum of elected officials from conducting public business in private.

Actions taken in violation of the act are invalid.

“The OMA (Open Meetings Act) does not expressly deny a governmental entity its right to ratify a previous decision,” the city’s Supreme Court filing said. It claimed the Appeals Court opinion creates a “vehicle for individuals displeased with governmental action to obtain reversals of substantive decisions.”

The city asked the court to reinstate a prior District Court decision which maintained the city could fix the violation retroactively.

Palenick claimed the violations mean he wasn’t legally fired and was owed his pay until November 2007, when the council held the re-vote.

The city also argued that Palenick gave the appearance of accepting his termination by taking a severance package worth around $110,000 allowed under his contract.

Palenick’s lawyer, Dan Faber, said he believed the Appeals Court ruling meant Rio Rancho had to pay his client.

Sarah Welsh, executive director of the Foundation for Open Government, said the ruling ensured that governing bodies had an incentive to obey the Open Meetings Act. Her group had filed a friend-of-the-court brief with the Appeals Court.

Welsh said on Thursday that she wasn’t surprised by Rio Rancho’s attempt to get the Appeals Court opinion reversed because of the potential cost to the city. But she is concerned about the implications if the Supreme Court does so.

“If you can violate the law and wait a year, or two years and fix it and there are no consequences, where is incentive to follow law in first place?” Welsh asked.

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