Town Blamed Artist for Crimes Against Procurement Code

Brief History of Swimming Pool Shenanigans

Horse Fly, Oct. 15, 2004

Town Correspondence

By Bill Whaley

The Town of Taos follows the state procurement code, Open Meetings Act, and Public Records Inspection Act, but whimsically. Horse Fly has detailed issues of non-compliance with regard to the landfill site in past issues. The town did not issue an RFP—allowing for competitive bids—when it renewed its contract, a contract worth millions, with Waste Management for five years at the beginning of 2004.

In excerpts from the Horse Fly’s copy of an original June 10, 2002 memo, we see more evidence of what appears to be creative legal interpretation. In this memo, Town Attorney Tomas Benavidez instructs town Finance Director Uvaldo Mondragon on the proper way to handle a $2 million donation from an anonymous artist [Agnes Martin] for the proposed swimming pool (a $2.5 million project using public and private funds). Horse Fly has a copy of the original memo. The incident occurred during “Fast” Fred Peralta’s tenure as mayor. Slick Gus Cordova, then as now, served as town manager. Shortly thereafter, Mr. Mondragon left the Town of Taos for private practice. Who can blame him?

Memo

In the memo from Benavidez to Mondragon, it states: “The donor in this instance specifically requests by the terms of the gift that the money not be considered public money by requiring the money to be set up in an account outside of the municipality’s general fund, (and) that the Town can not draw on the monies for the swimming pool without a counter signature of the donor’s agent. The anonymous donation requires that Gorge De la Torre Architects oversee the designing and building of the project.”

NMSA 1978, 5-4-7 states that money be placed in a municipal account unless otherwise provided by the terms of the gift. In this instance, the anonymous donor required that the funds not be subject to procurement and required that the funds be placed in an outside account with the donor’s agent control over the monies until the pool is built and accepted by the Town.

“This agreement will not be attached to protect the anonymity of the donor and is considered a confidential document of the Town protected attorney/client privilege.”

The Agreement

Horse Fly has obtained a copy of “This Agreement.” The letter below, written on town letterhead, signed by Town Manager Gus Cordova and Town Attorney Tomas Benavidez, dated Sept. 17, 2001, constitutes the agreement between the anonymous donor and the town. Apparently, the town takes the position that an anonymous donor can propose modifications to the state procurement code, which generally requires that projects involving public monies go out for RFPs (Request for Proposals) in order to allow competitive bidding. Competitive bidding saves taxpayers’ dollars, avoids issues of favoritism and corruption, and assures citizens that they have recourse in the event that a contractor doesn’t fulfill his obligations. We couldn’t find an exemption in state statutes for anonymous donor conditions. The swimming pool project involves public and private monies. At the time the agreement was signed, Fast Fred was mayor, Slick Gus, the manager, and, of course, Benavidez, the attorney. Incumbent mayor, Bobby Duran, was a member of the town council. Cordova and Benavidez evidently wrote and signed the document. The donor allegedly signed the document but the signature was blacked out. Horse Fly obtained a copy of the original with signatures of town officials. The document shows no sign of having been notarized. Excerpts are reproduced below.

“Dear [Donor]: (Editor’s Note: You know the Donor as well as I do!)

“This letter is an acknowledgment of receipt of your donation of an additional amount of One million dollars and no 100s ($1,000,000.00) to be added to the One million dollars and no 100s ($1,000,000.00) you donated to us on March 14, 2001 for a total of two million dollars and no 100s $(2000,000.00) [sic].”

“This letter further acknowledges and the Town accepts and agrees to the conditions of the donation as follows:

1. That the Town accept the donation and place it in an independent interest bearing account with a counter signatures for withdrawal of the Town Manager or Mayor, the Town Finance Director and [“The Donor’s”] ________________ counter signatory authority is to assure the monies are spent on the swimming pool and not to oversee the details of construction of the swimming pool. Pursuant to NMSA 1978, 5-4-7, Disposition of funds received by gift or bequest, which states as follows;

Money received for such purpose, unless otherwise provided by the terms of the gift or bequest shall be deposited with the treasurer of such municipality or county, to the account of the playground and recreation board or commission or other body having charge of such work, and the same may be withdrawn and paid out by such body in the same manner as other money appropriated for recreations purposes.

“3.That the money that is the subject of this Agreement which shall be used for design and construction of the recreational pool is not public money and therefore shall not be subject to the procurement code or federal or state wage rates acts in order to achieve as efficient and timely built operational recreational pool for the community; “(Emphasis Added)

“4. That the funds be expended and the building be complete no later than the of December 31, 2002; and if not substantially completed by that time funds will go to Taos Community Foundation.

“5. That the Town reserve and set aside sufficient property at the Youth and Family center area to be dedicated for the preparation, erection, construction, and maintenance of a recreational pool;

“6. That Gorge De la Torre shall be hired as the project manager to oversee a design-build project;

“7. That project manager be given the authority to negotiate and hire sufficient professionals to design and build the recreational pool;

“8. That, the Town, by this Agreement, allow easement in and upon the property known as the Youth and Family Center for all purposes consistent with the site preparation, erection, and construction of the recreational pool until completion of said project;

“9. That, at the completion of said pool to the donor’s satisfaction, the structure known as the recreational pool shall be donated to the Town of Taos in perpetuity to be operated and maintained by the Town;

“10. The Town acknowledge that these funds will be used towards the design and construction of a two million dollars ($2,000,000.00) recreational swimming pool;

“12. That this is an anonymous donation and that the donor will not be disclosed to the public.”

None of the bios about Agnes mentionm as far as I know how she and her caretaker manipulated the “procurement code.” Agnes didn’t know or care whether “procurement” was a squash blossom or a tube of pink paint. But Slick Gus and Fast Fred did. And the Town got what they didn’t put out for bid: shoddy work and poor construction.