Clawback Time: Crimes Against Children

In a story about the need for $2.5 million by J.R. Logan in The Taos News this week, the reporter mentions the amount needed for problems at the Youth and Family Center with walls, roof, failing stucco and plaster, as well as mold. But he doesn’t tell you why the ice rink (1999) and swimming pool (2004) were designed and built in such a shoddy manner. As I understand it, the architect Gorge de la Torre (RIP) designed both buildings but did not bid on the contract. Rather he was hired by avoiding the “Request for Proposal” (RFP) requirments re: the procurement code and the payments for the fee were segmented or reduced below the professional limits of $50,000, strictly a no-no,

The swimming pool itself, initally a $2.5 million dollar project, more or less, ballooned to more than $3.5 million but the project was never put out for bid. Political “custom” prevailed over “state law.” Fast Fred and Slick Gus, see below, used the excuse that a private donor had given them $2 million for the project. They claim the donor said that they should overlook the procurement code and hire De La Torre (again). The Town produced a document with blacked out signatures and did their best to lay the blame on Agnes Martin, who, I dare say, did not know a procurement code from a swimming pool designer nor did she care when she gave them the money for the pool.

Taosenos learned how to transform “law” or “regulations” into “custom” during the New Deal era when local patrons frequently ignored federal guidelines and paid lower wages so as to employ more residents while hiring friends and relatives for highway and construction jobs (See Suzanne Forrest’s The Preservation of the Village (UNM Press, Albuquerque, 1989) and see George Sanchez’s The Forgotten People (UNM Press, Albuquerque, 1940).

When Councilor Gene Sanchez investigated the Peralta-Cordova-Benavidez cabal at Town Hall, they tried to intimidate the “intimidator” by hiring attorneys and making false claims, lying, etc. Sanchez was forced to hire Attorney John Day to stymie the personal attacks. Typically the ambiguous nature of hearsay and gossip at Town Hall couldn’t be confirmed in a way that allowed “Clean Gene” to recoup his legal fees.

Taos Friction argues that now, today, the Mayor and Council should seek reparations and clawback the dough from Councilor Peralta, whose alleged ignorance of the law is no excuse for past behavior. He and his cronies cost the community and Town staff, not to mention the children, a million or two headaches. Peralta et al also need to answer for the Chamisa Verde mess, which tarnished the careers of subsequent mayors and councilors, according to the record, which, I will also post at a later date.

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]:

“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.”

Post Script

Mayor Bobby Duran, who is now the Captain of the Ship, has said, “Gus does a good job. He takes the heat for the council.” Whether it’s ultimately legal or not, the manager and attorney have played fast and loose with public and private money in an attempt to circumvent the state procurement code. At the very least, their behavior is unethical.

Intimidating the Intimidator

The persecution of Town Councilman Gene Sanchez by the mayor, manager, and various attorneys appears to be the result of Councilor Sanchez’s request for public records, especially, documents concerning the swimming pool. Sanchez’s attorney John Day’s letter (below) indicates that Sanchez has yet to be confronted by his accusers. Below, Horse Fly prints excerpts from the recent exchange of letters between Gus and Gene; John Day and the town’s investigator, Debra Moulton; as well as John Day and Gus. Cordova’s letter threatens the councilor with the law and more investigations.

Oct. 1, 2004: Gus to Gene:

“Dear Councilman Sanchez:

The purpose of this letter to advise you of the results of the independent investigation conducted by Debra J. Moulton, Esq. into the allegations that you created a hostile work environment for certain employees and subsequently retaliated against two (2) employees.

As you are aware, the Town received various complaints by employees alleging that you were creating a hostile work environment. As required by law, the Town promptly requested that Ms. Moulton conduct an independent investigation into the complaints. Ms. Moulton found that it did not appear that you had created a hostile work environment actionable under statute 1983, Title VII, or the New Mexico Human Rights Act.

Ms. Moulton also investigated allegations by (2) employees that you retaliated against them for having engaged in protected activity—i.e., for having complained about the alleged hostile work environment and/or cooperated in the investigations. As you are aware, Title VII prohibits retaliation against an employee who opposes any unlawful employment practice or participates in any manner in an investigation under Title VII.”

“In this instance, the two (2) employees alleged that you had publicly made statements they construed as threats to their jobs, damaging to their reputations, and humiliating. On the complaints of retaliation, Ms. Moulton found that, at this point, the facts did not show a materially adverse change in either employee’s working conditions. Ms. Moulton also indicated that if your behavior continues, an adverse employment action could easily be established by these employees. I am therefore advising you that further comments such as those complained of must immediately cease as failure to do so may subject the Town of Taos to liability for unlawful employment practices.”

Finally, I am advised by our legal counsel that the results of the independent investigation should not be made available to you or to the public to protect the privacy interests of employees who came forward to complain about the perceived hostile work environment and retaliation. The work product is considered by our legal counsel to be confidential attorney/client privileged information (emphasis added).

Thank you for your attention to this matter.”

Oct. 5, 2004:Debra J. Moulton to John Day

“Dear Mr. Day,

I have received additional allegations regarding Mr. Sanchez.”

1. During a recent town budget workshop, did Mr. Sanchez tell Tomas
Benavidez, “When all this is over, your turn is next?” (If so, please
explain what was meant by this comment and the context in which the
comment was made.)

2. Has Mr. Sanchez told other council members that Mr. Benavidez has
lied to him? If so, please state the basis upon which this statement was
made.

3. Did Mr. Sanchez approach Mr. Benavidez in April of 2004 at a
memorial reception for his deceased wife and ask who was paying for
the reception and if town funds were being used?”

Oct. 5, 2004 John Day to attorney Debra J. Moulton

Dear Ms. Moulton

Before addressing the issues raised in your letter of October 2004 regarding allegations concerning Tomas Benavidez purportedly made by Eugene Sanchez, I request that you provide me with a copy of any and all written contracts between your firm and the Town of Taos, as well as any other authority under which you are operating in this matter. Specifically, I request that you provide me with documentation, or written explanation, regarding the scope, purpose, and authority for this latest investigation.

Oct. 6, 2004:John Day to Gus Cordova

“Dear Mr. Cordova,

This responds to your letter to Council Member Eugene Sanchez dated Oct. 1, 2004. Mr. Sanchez rejects the idea that Deborah Moulton’s efforts to “investigate” Mr. Sanchez were in any way independent. Ms. Moulton’s efforts were in fact aimed at retaliating against Mr. Sanchez for his public comments and public positions on possible corruption in the Town government (emphasis added), with the intent to intimidate Mr. Sanchez into ending his efforts to shed light on what he believes are questionable practices by Town officials.

Mr. Sanchez also disputes the implicit findings reported in your letter that he has retaliated against two employees for making complaints against Mr. Sanchez. In his interview with Ms. Moulton, Mr. Sanchez consistently rejected her allegations that he has publicly made statements with the intent to intimidate or threaten employees.”

“It is interesting that despite my repeated requests for the Town to identify the alleged comments, the Town has consistently declined to describe them or otherwise produce them.”

Finally, Mr. Sanchez, as a duly elected member of the Taos Town Council, hereby requests a copy of Ms. Moulton’s written report, as well as all documents relating to or showing the cost to the taxpayers of the Town of Taos for the report.”

The Dance

Evidently, the town’s mayor, manager, and attorney have forgotten about the first amendment and free speech protections. When public officials, whether staff or elected officials, try and intimidate and/or retaliate against somebody for exercising their civil rights, they are themselves subject to civil rights lawsuits. At the same time, perhaps Benavidez and Cordova themselves are looking for an opportunity to file a lawsuit against the town. Everybody else is suing the town. (See “Cops” on page 16 for the latest exploits in the shameful Shane Harger file.)