Wednesday, July 14, 2010
Lawsuit Worried County Boss
By Dan McKay
Copyright © 2010 Albuquerque Journal
Journal Staff Writer
Bernalillo County Manager Thaddeus Lucero suggested John Dantis might have sued had he been fired after an investigation revealed his son was hired in violation of the county nepotism policy.
In a memo to county commissioners last month, Lucero shared that concern even though Dantis serves as an "at-will" employee, meaning he isn't entitled to the same job protections enjoyed by other government workers.
In the end, Dantis, deputy county manager for public safety, decided to retire, citing personal and medical reasons. He said the decision was unrelated to the investigation.
Lucero's comments are part of a 1 1/2-page memo sent to commissioners June 29 — the same day the Journal reported that at least one commissioner was willing to "revisit" Lucero's contract if there wasn't quick action on Dantis.
The memo was released Monday, about two weeks after the Journal submitted a request under the New Mexico Inspection of Public Records Act and after the county initially refused to make the document public.
"In dealing with John Dantis," Lucero wrote, "while it may have appeared to be an easy decision to terminate his employment because he is an at-will employee, I had to think about all of the possible issues. It was my goal to have John separate his employment in a manner that took away any possibility of John filing a claim against the county."
Lucero went on, in the memo, to defend his own tenure as county manager and said he shouldn't be judged solely on his handling of the Dantis issue. He added that if commissioners had lost confidence in him, they should discuss it in a closed meeting rather than in the newspaper.
The county initially refused to release Lucero's memo.
Lucero, Commission Chairman Art De La Cruz and the county's legal department said the letter was a private communication that wasn't subject to the public records law.
The letter is on county letterhead, is addressed to all five county commissioners, was sent from the Office of the County Manager and discusses Lucero's performance as manager and Dantis' employment. Lucero said Monday the memo is a "private letter between me and the commission" but that he would release it anyway.
Assistant County Attorney Peter Auh told the Journal the memo was a "personal communication and thus not a public record" as defined by state law. He added that if the memo were to be "construed to relate to public business, we invoke the executive privilege recognized by New Mexico case law, and we are asserting that it is exempt from disclosure."
That position drew a pointed response.
The "memo clearly relates to county business, and any contention otherwise is pretty frivolous," said attorney Charles Peifer, a First Amendment expert who frequently represents the Journal.
Sarah Welsh of the New Mexico Foundation for Open Government said executive privilege doesn't apply to counties or municipalities, and it's unlikely a county manager would send a personal message to all five county commissioners at once.
"It's hard to believe that something from the county manger to all the county commissioners doesn't deal with public business," she said.
Center of controversy
Dantis' retirement comes after controversy at several of the public safety departments he oversees. An independent investigation paid for by the county, for example, found there had been nepotism and favoritism toward his son, who worked at the county's detox center before resigning under threat of termination.
The investigation reported that one witness said Dantis had encouraged the hiring of his son, Jamie, despite concerns about his qualifications.
Lucero has refused to say whether he planned to discipline John Dantis.
Dantis' retirement is effective July 30. He received two rounds of applause from county officials and others during an emotional announcement last month.
Former County Commissioner Steve Gallegos, who led a protest that involved burning copies of the newspaper, described Dantis as a caring man who has worked hard to help people, especially those struggling with addiction.
Dantis had accumulated about $160,000 in unused sick and annual leave by late June. Under the county's personnel rules, he may cash out the leave when he retires.
The Journal wasn't able to reach Dantis for comment Tuesday.