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City Appeals Court Decision

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Rio Rancho has asked the state Supreme Court to reverse a recent Appeals Court decision in a case related to the firing of former city manager James Palenick.

The opinion the state Court of Appeals issued in November effectively said a city can’t wait nearly a year to correct a violation of the Open Meetings Act.

In a filing to the Supreme Court on Wednesday, the city maintained the Appeals Court’s opinion was inconsistent with state law and would harm the ability of governing bodies statewide to function effectively.

“The OMA (Open Meetings Act) does not expressly deny a governmental entity its right to ratify a previous decision,” the 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 Supreme Court to affirm a prior District Court decision which maintained the city could cure the violation retroactively.

At issue is the lawsuit Palenick filed against the city in 2008. Palenick claimed he was due more than $120,000 in back pay after the attorney general said conversations between former Mayor Kevin Jackson and several city councilors before they voted to fire him in late 2006 violated the Open Meetings Act.

The Open Meetings Act, among other things, prohibits a quorum of elected officials from conducting public business in private.

Actions taken in violation of the act are invalid.

That led Palenick to claim he wasn’t legally fired and thus owed his pay until November 2007, when the council again voted to fire him to correct the violation.

The city also maintained, as it has all along, that Palenick gave the appearance of accepting his termination by taking the severance package worth around $110,000 allowed under his contract.

After the Appeals Court rendered its decision, Palenick’s lawyer Dan Faber said he believed it meant Rio Rancho had to pay his client.

Sarah Welsh, executive director of the Foundation for Open Government, also welcomed the Appeals Court decision, saying it ensured that governing bodies had an incentive to obey the Open Meetings Act. FOG 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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