Dona Ana County Clerk v. Martinez

• Citation: 2005 NMSC 037,124 P.3d 210
• Decision Date: 21 November 2005
• Docket Number: No. 29,480.,29,480.
• Parties: In the Matter of the Request for Recalls of Gadsden Independent Public Schools Board Members. DOÑA ANA COUNTY CLERK, Robert Duane Frizell, individually and as representative of Recall, David J. Garcia, Florentino Silva, and Santiago Burciaga, Appellees, v. Gregg MARTINEZ, Luz Vargas, Fred Garza, and James Dino Anastasia, Appellants.
• Court: Supreme Court of New Mexico

Page 210

124 P.3d 210

2005 NMSC 037

In the Matter of the Request for Recalls of Gadsden Independent Public Schools Board Members DOÑA ANA COUNTY CLERK, Robert Duane Frizell, individually and as representative of Recall, David J. Garcia, Florentino Silva, and Santiago Burciaga, Appellees, v. Gregg MARTINEZ, Luz Vargas, Fred Garza, and James Dino Anastasia, Appellants.

No. 29,480.

Supreme Court of New Mexico.

November 21, 2005.

Walsh, Anderson, Brown, Schulze & Aldridge, P.C., Charles D. Noland, Elena Martinez Gallegos, Albuquerque, NM, for Appellants.

Thomas R. Figart, Las Cruces, NM, for Appellee Doña Ana County Clerk.

Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C., Robert Duane Frizell, El Paso, TX, for Appellees RECALL, Garcia, Silva, & Burciaga.

Robert Duane Frizell El Paso, Texas Pro Se Appellant.

OPINION

PER CURIAM.

{1} This appeal arises from a Doña Ana County school board member recall election held on November 15, 2005. Appellants Gregg Martinez, Luz Vargas, Fred Garza, and James Dino Anastasia ("the Named Board Members") are four of the five school board members for the Gadsden Independent School District ("GISD"). Appellees Robert Duane Frizell, individually and as representative of RECALL,¹ David J. Garcia, Florentino Silva, and Santiago Burciaga (the "RECALL Petitioners") are a group of voters in the GISD boundaries and members of RECALL. The Doña Ana county clerk is also an appellee.

{2} The Named Board Members are appealing two district court orders, which allowed the recall election at issue to proceed. The RECALL Petitioners brought this matter before the district court, pursuant to the Local School Board Member Recall Act. See NMSA 1978, § 22-7-1 (1977). They alleged that the Named Board Members engaged in malfeasance by violating the Open Meetings Act, see NMSA 1978, § 10-15-1.1 (1989), and by violating legislation identified as House Bill 212. See, e.g., NMSA 1978, §§ 22-5-4 (2003, prior to subsequent amendments), 22-5-14 (2003). In the first order, pursuant to NMSA 1978, § 22-7-9.1 (1987), the district court found that sufficient facts existed to allow the recall process to continue, on the basis of Open Meetings Act violations and violations of House Bill 212, although the court required modifications in the statement of the charges. In the second order, pursuant to NMSA 1978, § 22-7-12 (1985), the district court concluded that the failure to circulate petitions in Spanish as well as English did not invalidate any signatures. The district court also found that the RECALL Petitioners had gathered a sufficient number of valid signatures. Finally, the district court ruled the statement of the charges was sufficient to support a recall election. The county clerk issued and published its proclamation for the recall election. Absentee voting began on October 21, 2005 and ran until November 11, 2005.

{3} The Named Board Members filed their Notice of Appeal on September 29, 2005. Additionally, they filed a motion to stay the recall election process pending appeal. The district court denied the motion to stay and this Court granted an expedited appeal, pursuant to the request of the RECALL Petitioners and the county clerk. Following oral arguments, this Court also denied the Named Board Members' request for a stay pending the appeal. We now address the issues raised on appeal.

{4} The issues raised on appeal are as follows: 1) whether the charges as stated in the petitions and supporting affidavits were sufficient to allow the recall efforts to proceed; 2) whether the RECALL Petitioners' motives for initiating the recall election were purely political and personal; 3) whether the district court erred by not considering the Named Board Members' evidence; 4) whether the county clerk and/or the RECALL Petitioners' failure to provide petitions in both Spanish and English violated Section 22-7-6(C)'s requirement that "[a]ll information written on the petition form shall be in compliance with the federal Voting Rights Act of 1965, as amended;" and 5) whether evidence of canvasser irregularities and misrepresentations in obtaining signatures on the recall petitions were sufficient to invalidate all petitions submitted as a matter of law. We view the first and second issues as a single challenge to the sufficiency of the charges: whether the RECALL Petitioners were entitled to have the voters decide whether to recall the named Board Members under CAPS v. Board Members, 113 N.M. 729, 832 P.2d 790 (1992).

{5} The Named Board Members have argued that there was an insufficient factual basis for a determination they acted with an improper or corrupt motive as required by CAPS. While we recognize this Court referred to the requirement of an "improper or corrupt motive," see id., 113 N.M. at 730, 832 P.2d at 791 (quoting Arellano v. Lopez, 81 N.M. 389, 392, 467 P.2d 715, 718 (1970)), we were analyzing a discretionary act. See CAPS, 113 N.M. at 730, 832 P.2d at 791. In CAPS, it was undisputed "that the selection, by a local school board, of a site for a new school is a discretionary act within that board's scope of authority." Id. In this case, the charges are not that discretionary acts were wrongful, but rather that the Named Board Members acted outside their authority. The challenge raised in the first two issues by the Named Board Members is whether the charges were legally sufficient to show malfeasance. The reference in CAPS to motive is not applicable.

{6} The RECALL Petitioners' charges of Open Meetings Act violations and of House Bill 212 violations, if true, provided a sufficient legal basis for the recall process. If multiple intentional violations of the Open Meetings Act occurred, and those violations permitted policy decisions concerning the respective roles of the Superintendent and the school board to have been made without public participation, then those violations were a form of misconduct for which recall was provided. See N.M. Const. art XII, § 14 ("A petition for a recall election must cite grounds of malfeasance or misfeasance in office or violation of the oath of office by the member concerned."). The district court had a sufficient factual basis to support the charges that the Open Meetings Act had been violated on more than one occasion and that the violations involved decisions contrary to the Legislature's intent represented by statutes such as Sections 22-5-4 and 22-5-14. Finally, there was a factual basis to conclude that the violations, if they occurred, were knowing. Therefore, even if animosity and conflict exist between the RECALL Petitioners and the Named Board Members, it does not appear that the RECALL Petitioners' sole reason for employing the recall was as "a means of harassment or for purely political or personal purposes." CAPS, 113 N.M. at 731, 832 P.2d at 792.

{7} For example, on April 25th, Board Member Maria Saenz wrote a letter to President Luz Vargas expressing Saenz's concern that the GISD School Board violated the Open Meetings Act and House Bill 212 in their April 14th closed session. Ms. Saenz alleged that the board violated the Open Meetings Act by discussing subjects other than those announced or voted upon prior to closure. Ms. Saenz contends that the board did not vote for Ms. Vargas and Mr. Anastasia to proceed to tell Superintendent Ronald Haugen "how to do his job in relation to how he handles his personnel and what people he needs to fire[]." In addition, Ms. Saenz stated that at approximately 9:50 p.m. she asked Ms. Vargas whether anything else needed to be discussed because it was getting late. Ms. Vargas said there was nothing further to discuss, so Ms. Saenz left. A few days later, Ms. Saenz learned that the Named Board Members continued to discuss business matters after she left, including a personnel issue, with Mr. Haugen. Ms. Vargas gave Mr. Haugen a letter requiring him to respond to his actions about a previous employee. Ms. Vargas also handed Mr. Haugen a letter dated April 13th, signed by four board members, to restrict Mr. Haugen's out-of-state travel. Ms. Saenz alleged that this written directive "should have been voted upon at an open meeting." In addition, Ms. Saenz claimed that the letter given to Mr. Haugen was "invalid" pursuant to NMSA 1978, Section 10-15-3 (1997). Ms. Saenz's letter was addressed to Ms. Vargas, and copies were sent to the other board members and Mr. Haugen. The letter put all the Named Board Members on notice that Board Member Saenz was concerned about possible Open Meetings Act violations and House Bill 212 violations. Similarly, Mr. Haugen wrote a letter to Ms. Vargas on April 22nd, which also expressed his concerns about the April 14th meeting. That letter was also sent to all the board members.

{8} Further, the alleged violations that occurred in the April 14th closed session and the alleged violations that occurred after Ms. Saenz left the April 14th closed session were not isolated events. Mr. Haugen wrote a second letter to the board members on May 8th, expressing his concern that Mr. Anastasia violated House Bill 212 by threatening a principal within the district that it would be in his best interest to reinstate the assistant principal. In the May 12th closed session, Ms. Vargas, Mr. Anastasia, and Mr. Martinez placed Mr. Haugen on paid administrative leave effective immediately. Mr. Haugen alleged that Mr. Anastasia informed him that the reason that he was being placed on administrative leave for insubordination was because he "did not fire an employee as directed and because [he] did not follow a directive [he] was given to not take any personnel actions whatsoever." "[N]either the notice nor the agenda for the meeting on May 12, 2005 gave any indication that the School Board would take any such action."

{9} Although Ms. Vargas, Mr. Anastasia, and Mr. Martinez attempted to rectify their actions after placing Mr. Haugen on administrative leave by getting a recorder and...