A city council can’t wait nearly a year to correct a violation of the state’s Open Meetings Act.
That’s the message from the state Court of Appeals, which issued an opinion last week in the case of a former Rio Rancho city manager who was fired by the City Council in 2006.
James Palenick filed suit in 2008, claiming 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 Palenick 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 gave rise to Palenick’s claim that he wasn’t legally fired and therefore owed his pay until November 2007, when the council again voted to fire Palenick to correct the violation.
District Judge George P. Eichwald had agreed there was a violation of the Open Meetings Act but concluded the City Council action 11 months later cured it “retroactively.”
The appeals court opinion disagreed, saying, “No authority in New Mexico supports the City’s attempt to retroactively make the prior invalid action valid and effective as of the date it was taken.”
Allowing a retroactive application would remove the incentive to comply with the law, the opinion said.
The decision could be costly for the city of Rio Rancho.
Palenick’s lawyer Dan Faber believes the appeals court decision will mean the city has to pay his client.
“I don’t know any argument other than that the damages are, or about $130,000. They’re going to have a hard time arguing that it’s anything other than that,” Faber said on Friday.
Executive Director Sarah Welsh of the New Mexico Foundation for Open Government welcomed the decision. FOG had filed a friend-of-the-court brief with the appeals court.
“It’s good news that the Court of Appeals agreed with our position that the District Court decision rendered the Open Meetings Act meaningless,” Welsh said.
FOG is an educational and charitable organization whose mission is to defend citizens’ right under the state’s open meetings and public records laws.
Rio Rancho City Manager James Jimenez said on Friday he hadn’t had a chance to examine the opinion but said the city would continue to argue its case.
The appeals court also rejected the district court’s decision that Palenick waived the right to back pay by accepting a severance package worth about $100,000.
It dismissed Palenick’s claim to recover attorney’s fees.
— This article appeared on page A1 of the Albuquerque Journal