Saturday, July 04, 2009

Palenick Files for New Trial

By Rosalie Rayburn
Copyright © 2009 Albuquerque Journal
Journal Staff Writer
          A day after losing his lawsuit against the city, former Rio Rancho City Manager Jim Palenick is still not ready to quit.
        Palenick's attorney Daniel Faber filed a motion in Sandoval County's 13th Judicial District Court on Thursday seeking a new trial.
        The former city manager filed the lawsuit in January last year claiming he was fired illegally in December of 2006 and was due back pay of around $120,000. At trial Wednesday, District Court Judge George P. Eichwald ruled that the city did not owe Palenick anything.
        Eichwald said his decision was based on evidence presented at the trial. Faber claimed in his motion that he deliberately did not present evidence he considers relevant to the case because Eichwald ruled in a previous hearing that the issue would not be considered at trial.
        "I'm in the position where I have to follow the judge's instructions, and when he instructs me that that's not an issue, I think I'm acting disrespectful if I go ahead and put it on anyway — and then he rules that I didn't put any evidence on so I lose," Faber said.
        At issue is an opinion the Attorney General's Office issued in September 2007 that said discussions between former Mayor Kevin Jackson and four councilors prior to a vote to terminate Palenick violated the state's Open Meetings Act. The opinion said the violation rendered Palenick's termination "null and void."
        Palenick filed the lawsuit claiming the Attorney General's opinion meant he was still the city manager and due compensation. His pay when he was terminated was about $10,000 per month.
        At a hearing in August 2008, Eichwald ruled that there had been an Open Meetings Act violation and that action by the Rio Rancho City Council in November 2007, where they voted to refire Palenick, had cured the violation.
        "The only issue of material fact in dispute is whether that cure is retroactive or not," Eichwald said, according to a transcript of the August hearing.
        "(That) is the issue that I'm finding will be before the court for purposes of a trial in case it gets that far."
        Faber argued during the trial that the 11-month gap between the time Palenick was initially fired and the date the council acted to correct their violation was too long. He maintains Palenick should get compensation for those months.
        In his decision, Eichwald said insufficient evidence was presented at the trial to show there had been a violation "and even if there was a violation, it was cured retroactively."
        Calls to Palenick and Randy Bartell, the attorney representing the city in the case, were not returned.
       

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