New Mexico Mercury

By Kent Patterson for Frontera NorteSur

The New Mexico Attorney General’s Office (AG) has reaffirmed its dismissal of a citizen complaint against a former administration of the border city of Sunland Park, New Mexico. Filed by resident Ken Giove, the complaint raised more questions about the extent of previous, alleged electoral hanky panky as well as the mystery of important government documents missing from Sunland Park City Hall. 

Giove’s complaint centered around the January 2011 passage of a City Council ordinance that lowered the salaries of the mayor and city councilors to $1.00 per month, an action which was subsequently reversed with the City Council’s approval of a February 2012 ordinance restoring the earlier salary levels retroactive to August 2011.

The first ordinance spared the serving mayor and city councilors from the salary cut, and only applied to individuals serving in the posts after February 1, 2011. A careful reading of  minutes for the January 5, 2011 City Council meeting when the ordinance was approved indicated the plan for salary changes had been in motion since at least August 2010.

Based on “informal” remarks made to him by Sunland Park’s city attorney, Giove contended that the salary ordinances were “an attempt to manipulate the (March 2012) election” by making public service financially unattractive-or impossible- for most people.  By the time the February 2012 ordinance brought back regular salary levels, the candidate registration deadline for the March 2012 election had already passed.

The salary-slashing ordinance was signed into law by then-Mayor Martin Resendiz and attested by Elizabeth Gamez, the city clerk at the time. Giove, however, questioned the legality of the February 2012 ordinance since he could find no meeting minutes attached to the law, an omission which would render the ordinance illegal, according to Giove.   

In a reply to Giove last month, the AG’s office stated that “no criminal law violation exists under these circumstances,” because the “the Council appears to be within their power to set city ordinance.”  The June 11 letter was signed by Earl A. Holmes, director of the AG’s investigations division.

Dave Pederson, AG general counsel, told FNS that a city council vote has to be legally recorded but the specific ways of complying with the law get “fuzzy.”

“There’s no requirement, for example, of them to put a complete copy of the ordinance and attach the minutes,” Pederson said.

Although some smaller towns in New Mexico use special books to record meeting minutes, Pederson said he didn’t know if Sunland Park was among them. In terms of the missing City Council minutes from February 2012, Pederson said he wasn’t certain if the records were among minutes seized by the New Mexico State Police as part of a criminal probe related to the March 2012 election and other matters.

Pederson added that the AG had not been in touch with either the New Mexico State Police or the Dona Ana County District Attorney’s Office, which initiated prosecutions last year against numerous defendants for voter fraud, embezzlement, extortion, and other alleged crimes in Sunland Park.

In the last two years, the small New Mexico border city has grappled with election scandals, criminal investigations, political gridlock, personnel turn-overs, water supply problems, budget cuts, and an unprecedented state take-over of municipal finances. The city government has not updated its website since 2011.

Giove contended that the salary ordinance issue is still a relevant one in Sunland Park’s  panoply of political problems  because some of individuals who voted for the changes are still on the City Council. “If their actions are not criminal they are certainly unethical and they should not be in office,” Giove wrote to the AG.

“Nothing’s changed. Everything died down, “Giove later said in a phone interview, “But the same people who played games and pulled strings are still there.” Giove said his city direly needs citizen participation at meetings in order to move ahead but government officials have “pissed off (citizens) and nobody shows up.”

The salary-cutting ordinance, 2011-01, was passed by a 5-1 vote, with councilors Daniel Salinas, Jessica Avila, Annette Diaz, Christian Lira, Angelica Marquez voting aye and Carmen Rodriguez casting the lone nay vote.

Of the councilors participating in the January 2011 session, only Avila, Lira and Rodriguez remain in office. The meeting minutes show that Councilor Marquez physically left the proceeding less than an hour after it began and missed key votes on budget adjustments, subdivision developments and emergency wastewater repairs, among other items. Toward the end of the meeting, Marquez rejoined her colleagues via telephone and in time to vote yes for the salary reduction ordinance.

Last year, Former Councilor Angelica Marquez was among numerous individuals indicted by the Dona Ana County District Attorney’s Office in connection with what became known as the Sunland Park scandals. According to media reports, she was charged with extortion, bribery and voter fraud.

Challenging the AG’s stance on the ordinance matter, Giove said his complaint wasn’t so much about the paperwork accompanying particular ordinances as it was over electoral manipulation, which the AG should investigate.

The border resident, who acknowledged mulling a city council run in the March 2014 election,  questioned the New Mexico State Police’s reported seizure of original meeting minutes from the 2012 time frame in addition to ordinances from 1999-2003, the absence of which leaves the local government operating in the blind. “That’s the whole basis of the legality of a city, the ordinances,” Giove said.

But Sgt. Emmanuel Gutierrez, public information officer for the New Mexico State Police, e-mailed FNS that any paperwork taken by his department would have been copies and not originals. Gutierrez said the Office of the New Mexico Auditor took minutes and “other paperwork” but didn’t know if “they made copies or took originals.”

He added that Sunland Park residents were generalizing about the actions of the State Police.

“I believe they are still claiming we have paperwork from (what) was taken from them at various times but that is not the case,” he wrote.

According to Gutierrez, the New Mexico State Police’s Sunland Park investigation is concluded, with the legal ball now in the court of Dona County District Attorney Mark D’Antonio.

On the trail of the missing minutes and ordinances, FNS called the New Mexico State Auditor, Sunland Park City Clerk, Dona Ana County District Attorney, and the New Mexico Department of Finance Administration.

Evan Blackstone, New Mexico state auditor spokesman, said his office requested all the meeting minutes from the Sunland Park city government for the period from October 5, 2011 to the spring of 2012 but was not provided with the documents.

“It was our understanding that the minutes did not exist,” Blackstone said. “(We) never could confirm the existence of these documents.” Blackstone noted that the failure to keep and maintain minutes is a violation of the Open Meetings Act.

In 2012 the State Auditor carried out an audit of Sunland Park that, among other findings, identified “various deficiencies” in the minute-keeping for meetings from January 13, 2009 to October 5, 2011. In its report, the State Auditor noted that violations of meeting minutes requirements could subject city officials to civil and/or criminal penalties.

Currently, the State Auditor is working with an independent auditor contracted by Sunland Park to review records for fiscal years 2011 and 2012, Blackstone added.

At press time, FNS had not heard back from the Sunland Park City Clerk, the Dona Ana County District Attorney or the Department of Finance Administration.