Town V. Bob: “A Time for Courage”

Taos Friction posts Bob Maestas’s “whistle-blower” lawsuit below because the man is both courageous and public spirited. From Bob Taos Friction learned some months ago that the Town of Town historically violated the procurement code, according to the documents, violations that apparently cost the Town hundreds of thousands if not millions of dollars in cost over runs for roads. Indeed, the Mayor’s and Manager’s hiring of the out-of-town paving outfit from Kansas was seen as an oft encouraged alternative, finally acted upon, due to the predatory paving prices of local contractors and conspiratorial practices—historically—pursued at the Town.

When Maestas brought the cost overruns and failures of the Public Works Department and Finance Department to the attention of the so-called executive team and the Mayor, the whistle blower was summarily terminated.

Indeed Bob suffered the same fate as whistle-blower Antonio Martin, who broke the news to the newly elected council and was fired during the interim period before Barrone was sworn in. Martin was ultimately deposed in conjunction with the Maestas lawsuit, which as I understand it, resulted, however indirectly, with a pay-off of some $50,000 to Martin (Marteeen) by the Town and its Risk Management team of defenders. Why pay the whistle blower? Eh?

In addition, Bob, like other town employees, including his superior, Mr. French Espinoza, admitted that he, too, browsed the Internet. Apparently the Public Works Director researched hunting licenses but Bob was accused of looking at “dirty pictures” or porno for which he was “ostensibly” fired, according to the Town’s risk management attorney in court. (Course French admits in his deposition that he said “sexually explicit” things to an admin assistant from the “South Valley.”)  At best we have a double standard here. Despite this alleged slur on his reputation, Bob stepped up and revealed the millions of dollars lost to citizens in the community all the while knowing he would be “pilloried” by the Puritans and the BBQ Pig fans.

(Killing animals is equally pornographic to some Taosenos, as the executioner of the Porky Pig on New Years eve found out in a recent column in The Taos News.) 

Taos Friction suggests candidates for council read the stories, lawsuits, affidavits, and depositions. Whether the allegations are ultimately proved in court, the paper work documents, what any lay person would consider numerous violations of the public trust, historically, and in a couple of cases, more recently.

According to information sought and received about an auditor by Gene Sanchez, the town states that ” the person who came to review the additional review on procurement and who we were in contact with for this was Eric Spurlin. In discussion they said we would not receive that information it would go directly to the State Auditor’s Office.” (There’s no mention of  a “forensic audit”.)

Spurlin can be reached at  505-883-2727 or mailed at: Accounting & Consulting Group, LLP, 2700 San Pedro NE. Albuquerque, NM 87110.

We know that Councilor Cantu has repeatedly sought information and tried to uncover the violations of the procurement code while Manager Bellis, Mayor Barrone, and Councilor Hahn have repeatedly invoked a policy of resisting her efforts in favor of “not” holding staff accountable for past practices. This policy seems strange given that most of the violations occurred before this administration was elected.

A culture of corrupt practices and politicized decisions tends to continue until rooted out: See Kit Carson Coop and the last decade and a half.

Indeed, the Bellis-Barrone team seems to operate on all levels as if decisions are a “fait accompli,” perhaps prepared and vetted over the kitchen table up at the “house on the hill.”  Two local power couples seem to make decisions about everything from Plaza Closure and the garish celebration of light and carbon proliferation to the “Death of a Pig.”

Porky’s sacrificial demise is similar to the reduction of revenue at Plaza shops.  Reduced hours of business, ordered by Town Government, is devastating the Plaza merchants. But nobody wants to speak up except for the courageous Ranee “Millicent” Malanga and now Bob Maestas, Antonio Martin, and, eventually, the Sign Man could weigh in, given his rough-shod treatment by the cops.

The Mayor should know that in Taos you always have leaks and gossips, whistleblowers and sign men saying aloud that which is  “forbidden.” Hey I’m all for the “mantanza” at harvest time but the Town and County have hundreds of citizens who support a “no kill shelter.”

Who’s next?

IN THE EIGHTH JUDICIAL DISTRICT COUNTY OF TAOS
STATE OF NEW MEXICO

JOSEPH R. MAESTAS,
Plaintiff,

8TH JUDICIAL DISTRICT COURT
TAOS COUNTY NM FILED IN MY OFFICE 2/4/2015 4:12:50 PM BERNABE P. STRUCK
DISTRICT COURT CLERK
BLK

vs. NO. D-820-CV-2015-00050

TOWN OF TAOS,
Defendant.

COMPLAINT FOR TERMINATION IN VIOLATION OF THE WHISTLEBLOWER PROTECTION ACT NMSA §10-16C-1ET. SEQ. AND OTHER CLAIMS

COMES NOW, the Plaintiff herein, and for his Complaint states:

COUNT I: VIOLATION OF THE WHISTLEBLOWER PROTECTION ACT

1. Plaintiff is a resident of Taos County, New Mexico.

2. Defendant Town of Taos is an incorporated municipality located in Taos County, New Mexico.

3. The Defendant is a “public employer” as defined by NMSA §10-16C-2( C)(l).

4. Francisco Espinoza is the Public Works Director of the Town of Taos and was Plaintiff s immediate supervisor.

5. Plaintiff was employed by the Town of Taos as Project Manager in the Public Works Department.

6. During his employ, Plaintiff would frequently alert Town officials to practices, procedures, actions, or failures to act on the part of the Town of Taos employees that constituted gross mismanagement, a-waste of funds, or unlawful or improper acts. These unlawful orimproper acts or failure to act that Plaintiff reported include but are not limited to,

A. Unnecessary Employees. Plaintiff questioned Francisco Espinoza about the need for the hiring of a third employee for the Town Recycling Center. Previously, when the Recycling Center hosted the “free box” and the free box required additional attention, the Recycling Center operated on just two employees. Then the “free box” was closed and there was a decrease in the work load. There was no reason to hire an additional employee. But instead of maintaining the status quo of two employees, Mr. Espinoza hired an additional employee to work at the Recycling Center.

B. Unnecessary Mechanic Garages. Plaintiff questioned Francisco Espinoza on the need for the Town of Taos to maintain two mechanic garages. The Town of Taos maintains two mechanic garages: one mechanic garage to maintain the Town of Taos’ buses and another mechanic garage for the rest of the Town of Taos’ fleet. Mr. Espinoza responded that he maintained two garages because Reynold Vasquez from the bus garage and Mario Montoya from the fleet garage did not like each other and so the Town was assuming the additional expenses of an additional garage to please the two employees.

C. Excessive fees paid to consultants.

(1) Plaintiff continually alerted Mr. Espinoza to the fact that the fees the Town of Taos was paying to engineering consultants for the design of infrastructure projects was exorbitant and excessive.

(2) Plaintiff advised Francisco Espinoza that the American Society of Civil Engineers published Manual No. 45 which outlined guidelines for determining engineering fees that should be paid to consultants. The fee schedule ranged from 7% to 12% of net construction costs.
(3) Francisco Espinoza was allowing the Town to pay consultant fees in the

20% to 35% range.

(4) Plaintiff has more knowledge and experience in the engineering and surveying disciplines, the procurement of engineering services, and the bidding out of construction projects than Francisco Espinoza possesses.

8. Such act of reporting these perceived irregularities was a communication to a public employer or third party about an action or a failure to act that the Plaintiff, as a public employee, believed in good faith constituted an unlawful or improper act as defined by NMSA §l-16C-3(A).

9. Francisco Espinoza, in collaboration with his then girlfriend, assistant Town Manager Abigail Adame, attempted to have Plaintiff transferred to the Planning Department. They offered Plaintiff the position of building inspector with a 10%raise. Plaintiff declined the offer because he was not qualified to perform the duties of building inspector. Francisco Espinoza and Abigail Adame were setting Plaintiff up to fail in order to have an excuse to fire him. When Plaintiff declined the offer because he was not qualified for the position, Ms. Adame got upset, slammed her notebook closed, and told him that she would have to inform the Town Manager.

10. Eventually, Mr. Espinoza terminated the Plaintiff.

11. Plaintiff s termination was an adverse employment action against Plaintiff in the terms and conditions of his public employment.

12. Plaintiff had not been previously disciplined or reprimanded.

13. The Town of Taos follows principles of progressive discipline in the treatment of it’s employees.

14. The “offense” Plaintiff committed giving rise to his termination was not a terminable offense, was not otherwise a serious offense warranting immediate termination, was not something that he had been counseled or disciplined before, and was contrary to principles of progressive discipline.

15. Francisco Espinoza advised Plaintiff that the Town Manager Rick Bellis had fired him.

16. Plaintiff talked to Town Manager Rick Bellis about this matter and Mr. Bellis denied firing Plaintiff.

17. Plaintiff s termination was without just cause.

18. Plaintiff s termination was without progressive discipline.

19. Town of Taos Human Resource Director Amy Seidel provided Plaintiff with a letter of termination. The rationale provided by Human Resource Director Amy Seidel for terminating Plaintiff pre-textual.

20. The cause of Plaintiff s tem1ination was because of, or partially because, Plaintiff had communicated to his public employer or a third party information about an action or a failure to act that the Plaintiff believed in good faith constituted an unlawful or improper act or acts by the Town of Taos.

21. Even if there was just cause to tem1inate the Plaintiff, Plaintiff s good faith reporting of matters which he believed to be unlawful or improper acts or failure to act, was the motivating factor in, or contributed to, Plaintiff s termination.

22. As a result, Plaintiff was damaged.

COUNT II: BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING

23. Plaintiff restates and re-alleges the foregoing allegations as if fully set forth herein.

24. Town of Taos employees are governed by a Personnel Policy. The Personnel Policy manual sets forth the Town’s policy of progressive discipline and provides an employees with the right to grieve adverse employment actions directed against them. The Personnel Policy also provides a process whereby an employee may appeal an adverse employment action to the “personnel board” consisting of one appointed independent hearing officer.

25. On June 2, 2014, Plaintiff timely appealed his termination under the terms set forth in the Personnel Policy.

26. Threemonths later, on September 23, 2014 Plaintiff sought to determine ifthe Town had abandoned the appeal process because they had not as yet scheduled Plaintiff s appeal for a hearing before the personnel board.

27. The Town’s Human Resource Director, Amy Seidel, responded that the Town intended to have ahearing officer schedule a hearing on Plaintiff s appeal “within a timely manner” but as if attempting to justify the delay, stated that “the Town has a new Town Manager, Town Attorney and Human Resource Director”.

28. Ms. Seidel failed to explain why having new employees prevented the Town from appointing an independent hearing officer to do all of the work involved in hearing the appeal.

29. Defendant was required to perform their obligations under the personnel policy manual in good faith.

30. Defendant failed to act honestly and in accordance with standards of fair dealing under the surrounding circumstances.

31. The failure of Defendant to appoint a hearing officer to hear termination appeals is an intentional and calculated attempt by the Town of Taos to defacto deny Town employees of the appeal rights they have as contained in the personnel policy manual.

32. Plaintiff is not the first Town employee who has been terminated and whose appeal was not scheduled within a reasonable time after his termination.

33. The refusal of the Town of Taos to appoint a hearing officer for employee grievances is the defacto policy of the Town of Taos.

34. As of the date of the filing of this action, nine (9) months have elapsed since Plaintiff was tem1inated and appealed his termination and the Town of Taos still has not appointed ahearing officer to hear his appeal.

35. As a result thereof, Plaintiff has been damaged.

PUNITIVE DAMAGES

36. Plaintiffs hereby restates and re-alleges the foregoing allegations as if fully set forth

herein.

37. Defendants actions as described in Count II were malicious, willful, reckless, wanton, fraudulent, bad faith, and/or grossly negligent, making an award of punitive damages appropriate. WHEREFORE, Petitioner prays that the Court for judgement against the Defendants for Plaintiff s actual damages, reinstatement with the same seniority status that Plaintiff would have had but for his termination, the Town’s contributions to Plaintiff’s PERA account, two times the amount of back pay, interest on the back pay, compensation for any special damage sustained as aresult of his termination, punitive damages for the intentional breach of the covenant of good faith and fair dealing, costs of suit, attorney’s fees, and any such other and further relief as the Court may deem
just and proper in the premises. Isl Samuel M. Herrera

SAMUEL M. HERRERA
The Herrera Firm P.C. Attorney for Plaintiff
P.O. Box 2345
Taos, New Mexico 87571 (575) 751-0417

VERIFICATION

STATE OF NEW MEXICO )
) SS.
COUNTY OF TAOS )

Joseph R. Maestas, having been first duly sworn upon oath deposes and states:

I am the Plaintiff herein; I have read the foregoing pleading and know the contents thereof and that the statements the.rein are true and accurate .to my o\vn personal knowledge and belief, except those ·matters therein stated OQ infon;nation and belief and as to those matters I honestly believ.e them to be true.

SUBSCRJB AND SWORN before me this

My Comission expires: ( – \ J
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