The Village of Capitan Board of Trustees met in regular session on
Tuesday, September 15, 2009 at Village Hall in Capitan, NM at 6:30 PM.
Mayor Hammons asked for a moment of silence and led the assembly in the
Pledge of Allegiance.
Mayor Hammons called the Public Hearing to order at 6:30 PM. The
purpose of the hearing was to take public input on Ordinance
2009____2009 Amendments to the 2004 Compilation of the Uniform Traffic
Ordinance – Incorporating the 2009 Legislative changes to the Uniform
Traffic Ordinance. Mayor Hammons briefed the audience saying the
legislature approved these changes to the Code. One lady asked if
there were very many changes. Mayor Hammons told her quite a few
concerning off road vehicles and motorcycles.
Mayor Hammons called the meeting to order at 6:33 PM. He asked
the Village Clerk, Kay Strickland, for a roll call of the
members. Mayor Hammons-here, Trustee Payne-here, Trustee
Davis-here, Trustee Wood-here, Trustee Riska-here. Village Clerk,
Kay Strickland, Finance Officer, Shirley Pavlovic, and Atty. Zach Cook
also attended the meeting. A list of others in attendance is
attached.
Trustee Davis stated he made a request to add an item regarding the
Capitan Police Standard Operating Practices and the request was
denied. Why? Atty. Cook said the ordinance and general rule
is in conflict. Mayor Hammons stated it would be put on the next
agenda.
Item #1 on the Agenda: Approval of the Agenda
Trustee Payne made the motion to approve the agenda. Trustee Wood
seconded the motion.
Trustees Payne, Wood, and Riska responded “aye” and Trustee Davis
responded “no”.
Item #2 on the Agenda: Public Input
Atty. Cook stated agenda item #5, Appeal to the Board of Trustees
Regarding Police Officer Barnett’s Grievance; the Board in its capacity
of hearing the item on the agenda is not sitting in a legislative
function, they are sitting in a quasi-judicial function. That
means that they will make a ruling on a personnel issue under the
exception to the open meetings act. There is an exception where
public input is not appropriate when they are sitting in their
quasi-judicial function. Therefore it is not appropriate to take
public input on this item as they sit in their quasi-judicial function
and the purpose is to protect their impartiality. Atty. Cook
stated the people can call their elected official with their
input. Jerry Carroll asked what procedures the Village has
adopted; i.e. Roberts Rule of Order and which order. Virginia
Jones asked if “Liberty and Justice for All” applied. Atty. Cook
stated “no”.
Minutes
Regular Meeting
September 15, 2009
Page 2 of 8
Item #3 on the Agenda: Consent Agenda
Approval of the Minutes: Regular Meeting –
August 11, 2009
Special Meeting – August 26, 2009
Approval of Accounts Payable – August 2009
Trustee Payne made the motion to approve the minutes of the regular
meeting of August 11, 2009, the special meeting of August 26, 2009 and
the accounts payable. Trustee Davis seconded the motion.
Roll Call: Trustee Payne-yes, Trustee Davis-yes, Trustee
Wood-yes, Trustee Riska-yes.
Item #4 on the Agenda: Recognition of the Volunteers who Worked
on the Keep America Beautiful Project/Garden
Mayor Hammons stated he would like to recognize all the hard work the
people did – Virginia Jones, Raynene Greer, and all the volunteers and
donors - to the garden on the south side of Village Hall. He
asked that they stand up and be recognized for all their hard
work. He stated it turned out very nice.
Item #5 on the Agenda: Appeal to the Board of Trustees
Regarding Police Officer Barnett’s Grievance
Atty. Cook stated the appeal stems from a written reprimand that the
Mayor gave to Officer Barnett following a meeting that was held on June
15th. Atty. Cook stated he and Atty. Rose have talked. The
ordinance states a grieved employee cannot participate in the appeal,
but we are going to allow participation by the grieved employee.
He will present a background of this appeal to the Trustees stemming
from the written reprimand and Atty. Rose and his client will present
their appeal. And after that presentation, then the Trustees can
decide whether to move on and finish the agenda and come back at a
different time, because the ordinance says the Board has five days to
give a written decision on the appeal. Atty. Cook explained the
background. On June 15th the Mayor held a meeting with the police
department. Trustee Davis was at the meeting. At the
meeting the Mayor expressed his desire for the police officers to
communicate more verbally as opposed to communicating only by way of
written memos. That was his instruction to the Police Officers;
to communicate more in person, as a general public safety issue; they
need to be able to communicate as normal people would. So after
that meeting, Officer Barnett gave a written memorandum to Chief Spear
with regard to requesting instructions on how to give drivers
tests. Because he communicated something in writing that could
have easily been communicated verbally, as a supervisor talking to his
employee, the Mayor gave him a written reprimand for failure to follow
his clear instructions at that meeting. Officer Barnett wrote a
written grievance asking the Mayor to remove that reprimand from his
personnel file. The grievance was attached to the information
given to the Trustees. In it, Officer Barnett brings up other
issues that are not part of this appeal and the Mayor denied Officer
Barnett’s request to remove the written reprimand from his file.
According to the
Minutes
Regular Meeting
September 15, 2009
Page 3 of 8
ordinance, Officer Barnett filed a grievance to the Mayor.
Through correspondence between Atty. Cook and Atty. Rose they
considered his actual grievance to the Mayor to be his original
grievance to the Mayor as it flows through the ordinances. He did
not like the Mayor’s continual denial to remove the reprimand from his
file, so the ordinance allows for an appeal to the Trustees. The
only issue on this appeal and the only relief Officer Barnett is
requesting from the Trustees is that the written reprimand by the Mayor
to Officer Barnett be removed from his personnel file.
There is another issue the Trustees are aware of, the pending
performance evaluation by Chief Spear of Officer Barnett. It is
on executive session and still has not been signed by Officer
Barnett. Officer Barnett and Chief Spear still need to have a
discussion regarding this. Atty. Cook told the Trustees the
second request on this appeal is they do not act on the performance
evaluation at this time because it has not been signed by Officer
Barnett. Trustee Davis asked the Village Clerk to read the
procedures to the agreement and what is expected of the Trustees.
Atty. Cook stated he and Atty. Rose have agreed in writing and orally
what the procedures would be to make it fair and impartial. He
offered the letters to Trustee Davis. Trustee Davis stated it is
code in the Village Code book, the Trustee part…and he wants to know
what he is responsible for. Atty. Cook stated there is a section
in the ordinance that describes the appeal. That ordinance as he
stated earlier, is the same ordinance that says a grieved employee does
not have a right to participate. He disagrees with that part of
the ordinance and he and Atty. Rose agreed whereby they present the
appeal to the Trustees. Trustee Davis stated he would like
someone to read the last paragraph. Atty. Cook read the section
(4.6), “If the written opinion of the Mayor is not satisfactory to the
employee, he has the right to request within 5 working days, in
writing, a review by the Board of Trustees. The Board of Trustees
must consider and respond to the request for review of the action by
the Mayor at the next regularly scheduled Trustee meeting.
Appeals to the Board of Trustees are on the record and no presentation
by the employee or his representative is available to the employee at
the time the review is considered. The Board of Trustees in
quorum session shall within 5 working days after reviewing the Mayor’s
report, make a decision concerning the grievance and issue an opinion
in writing. The decision of a majority of the Board of Trustees
in attendance shall be final, unless the employee files an appeal to
the district court as hereafter provided.” Atty. Cook stated as
he mentioned, Atty. Rose and himself in writing and in conversation
have agreed, because that ordinance is very vague, it basically says if
the grieved party does not like what the Mayor says, they can appeal to
the Board. That is not big enough for lawyers. We wanted to
set a little bit more strict proceedings and what we have decided is
that I would give this presentation to you guys, setting up the
background, and then let them proceed in their appeal and ask you guys
to remove that reprimand from his file. He stated he thinks he
has given you guys enough background unless you have more questions,
and if it is “ok”, we should proceed with the appeal. Atty. Rose
presented Officer Barnett’s grievance. He stated he wanted to add
a little bit to the background. Atty. Rose stated his purpose in
making the presentation for Officer Barnett does not provide additional
fuel to the fire in regards to
Minutes
Regular Meeting
September 15, 2009
Page 4 of 8
any disagreements Officer Barnett has with other members of the police
department. There was this grievance filed for two
purposes. One is to remove the written reprimand from Officer
Barnett’s file. The importance of that is obvious to Officer
Barnett. When somebody dedicates their life and their career to
serve the public as a law enforcement officer, their untarnished record
is very important to them. Not only personally, it is almost a
badge of honor to do that. When someone tries to tarnish that, it
is reasonable for that officer to speak up personally. More
importantly, if somebody wants to pursue their career in law
enforcement at a different place, you have to expect that their
employee files be reviewed in detail. Any negative
performance evaluation, it has negative effects on their ability to
earn a living. Any written reprimands in their files would have
the same possibilities. So it is vitally important that the
Trustees take their grievance seriously. Atty. Rose stated they
have an issue in the department about failure to communicate and their
problem is basically not getting a response from the Chief when it
comes to ordinary issues. They understand from the written
reprimand in his performance evaluation that that was the Mayor’s
problem with Officer Barnett, alleging the failure to
communicate. On an issue of something as simple as requesting
training for a driving test; there was verbal communication requesting
that by Officer Barnett on May 15th of this year. There was a
simple interoffice memorandum, as there was no response from the Chief,
simply stating he would like to have some training. If he was
going to be expected to give the tests, he would like to have some sort
of training or directions. There was no response. June
29th, after the meeting was held, an issue with the Mayor telling
Officer Barnett to not communicate in writing; communicate verbal, and
that communicating in writing was a detriment to safety and public
welfare, something that we obviously disagree with, but
understood. Now this issue of simple driving instructions,
through assistance of no response, Officer Barnett was second in
writing, Chief Spear was in agreement or there was something that was
meant to be public in any way, it was just another request for
instructions in training. The day after the letter was issued,
Officer Barnett gets a letter of written reprimand stating that the had
written this memorandum requesting training and this was going into his
file. You have to keep in mind as well that on June 10th
approximately two weeks prior to this, was the date his client expected
his yearly evaluation. Now we have this letter of reprimand, we
obviously object to this and asked the Mayor to reconsider it. We
don’t get the yearly evaluation until it is written and dated July 27th
of this year. It is not given to Officer Barnett until
August. We have it written July 27 and around August 9th this
evaluation, which by the code, indicates the Chief of Police has a duty
to sit down with the employee and discuss the evaluation and then
request a signature. It was left on Officer Barnett’s desk with a
post-it that said it is required to be signed and returned within the
deadline of two days later. In the evaluation, there is negative
remarks about poor performance evaluations because he wrote this
memorandum and was failing to communicate. Atty. Rose suggested
to the Trustees in this case, it seems almost absurdly that someone
could get reprimanded in their file for simply requesting
training. You will see in the evaluation that it is suggested
that he get negative
Minutes
Regular Meeting
September 15, 2009
Page 5 of 8
remarks because he does not get enough training. So we would ask
you to consider the reprimand arbitrary, something you would consider
removing from his file, and council might agree that you should not
accept the evaluation until such time that Chief Spear and Officer
Barnett can sit down and discuss it. It is very vague about what
the problems are. If there is not some sort of communications,
the problems will continue and we will have a situation where we go
from here to the courtroom. And Officer Barnett would like
everyone to know that he does not want controversy, he wants to live
here, he wants to work here, and would like to continue working in the
police department and have a good relationship with fellow
officers. But what he will not stand for is the arbitrary action
from the Village, something that is going to deprive him of his
property interest in an arbitrary manner.
Trustee Davis made a motion at 7:10 PM that the Trustees meet in
executive session immediately and for no more than 10 minutes to try to
settle this. Atty. Cook stated according to the open meetings
act, if there is an item on the agenda that can be closed and the
deliberations can be held in closed session, because this is a
quasi-judicial function. You are going to have to decide at some
point and those deliberations should be taken in closed session.
If you want to do it now, as the motion sits, I have one recommendation
for amending it. Then do it now or we will have to meet between
now and 5 days from now for the Trustees to deliberate and get the
written opinion to Officer Barnett. He suggested amending the
motion to only include that you are moving to close the session as
authorized by the administrative adjudicatory deliberations exception
to discuss Officer Barnett’s appeal. Trustee Davis said he would
do that and remove the time limit from his motion if that will
help. Trustee Riska seconded the motion. Roll Call:
Trustee Davis-yes, Trustee Wood-yes, Trustee Riska-yes, Trustee
Payne-no. Trustee Wood moved to go back into regular session at
7:35 PM. Trustee Davis seconded the motion. Roll
Call: Trustee Wood-yes, Trustee Davis-yes, Trustee Payne-yes,
Trustee Riska-yes. Trustee Riska attested that everything we
discussed was about this matter. Trustee Riska moved that the
Board grant the appeal with regard to the written reprimand and
instruct the Village attorney to negotiate with Officer Barnett’s
attorney on a mutually agreeable way to proceed with regard to the
performance evaluation. Trustee Davis seconded the motion.
Roll Call: Trustee Riska-yes, Trustee Wood-yes, Trustee
Davis-yes, Trustee Payne-yes.
Item #6 on the Agenda: Ordinance
2009- 2009 Amendments to the 2004
Compilation of the Uniform Traffic Ordinance
Trustee Riska moved that we accept ordinance 2009-___to the 2004
Compilation of the Uniform Traffic Ordinance. Trustee Wood
seconded the motion. Roll Call: Trustee Riska-yes, Trustee
Wood-yes, Trustee Davis-yes, Trustee Payne-yes.
Item #7 on the Agenda: Approval of the 2009-2010 Final
Budget
Minutes
Regular Meeting
September 15, 2009
Page 6 of 8
Trustee Payne made the motion to approve the 2009-2010 final
budget. Trustee Wood seconded the motion. Roll Call:
Trustee Payne-yes, Trustee Davis-yes, Trustee Wood-yes, Trustee
Riska-yes.
Item #8 on the Agenda: Discussion/Action on Requests for a
Water Connection
a. Terry Gibbs – 136 Dear Drive
Trustee Davis moved to approve it. Trustee Payne seconded the
motion. Roll Call: Trustee Davis-yes, Trustee Payne-yes,
Trustee Riska-yes, Trustee Wood-yes.
b. Brecca Addison – 8353 US Highway 380
Trustee Davis moved to approve item b. Trustee Payne seconded the
motion. Roll Call: Trustee Davis-yes, Trustee Payne-yes,
Trustee Riska-yes, Trustee Wood-yes.
Item #9 on the Agenda: Discussion/Action on Second
Amendment to the Lincoln County Solid Waste Authority Joint Powers
Agreement
Mayor Hammons stated this is to change the name of Lincoln County
Solid Waste to Greentree Solid Waste. Trustee Payne made the
motion to approve the name change. Trustee Davis seconded the
motion. Roll Call: Trustee Payne-yes, Trustee Davis-yes,
Trustee Wood-yes, Trustee Riska-yes.
Item #10 on the Agenda: Resolution 2009-32 – NM Dept. of
Transportation Capital COOP Grant Project
Village Clerk, Kay Strickland, stated this is for the $50,000 grant the
Village received to chip seal some roads in the subdivision; what this
is saying is that the Village will be responsible for the maintenance
of the roads. Trustee Riska moved to accept resolution 2009-32 –
NM Dept of Transportation Capital Grant Project. Roll Call:
Trustee Riska-yes, Trustee Wood-yes, Trustee Davis-yes, Trustee
Payne-yes.
Item #11 on the Agenda: Resolution 2009-33 – Adopting
an Infrastructure Capital Improvement Plan (ICIP)
Mayor Hammons stated this is the plan that was discussed earlier in the
Workshop. Trustee Riska moved to accept resolution 2009-33 –
adopting an infrastructure capital improvement plan. Trustee Wood
seconded the motion. Roll Call: Trustee Riska-yes, Trustee
Wood-yes, Trustee Davis-yes, Trustee Payne-yes.
Item #12 on the Agenda Resolution 2009-34 – Budget Adjustment – General
– Animal Control/Code Enforcement Truck Purchase
Finance Officer, Shirley Pavlovic explained the line item to purchase
the truck to be used by animal control/code enforcement did not have
enough money in it. She proposed to add $2000 to correctly budget
the amount needed to purchase the truck. Trustee Davis moved to
Minutes
Regular Meeting
September 15, 2009
Page 7 of 8
approve resolution 2009-34. Trustee Payne seconded the
motion. Roll Call: Trustee Davis-yes, Trustee Payne-yes,
Trustee Riska-yes, Trustee Wood-yes.
Item #13 on the Agenda: Resolution 2009-35 – Water Fund – CD
Purchase
Shirley Pavlovic explained this resolution was to confirm the purchase
of the $300,000 CD from First Federal Bank at a rate of 2.03% for 18
months. Trustee Payne made the motion to approve resolution
2009-35. Trustee Riska seconded the motion. Roll
Call: Trustee Payne-yes, Trustee Riska-yes, Trustee Wood-yes,
Trustee Davis-yes.
Item #14 on the Agenda: Resolution 2009-36 – General Fund – CD
Purchase
Shirley Pavlovic stated this resolution was to confirm the purchase of
the $500,000 CD from First Federal Bank at a rate of 2.03% for 18
months. Trustee Payne made the motion to accept resolution
2009-36. Trustee Wood seconded the motion. Roll Call:
Trustee Payne-yes, Trustee Riska-yes, Trustee Wood-yes, Trustee
Davis-yes.
Item #15 on the Agenda: Discussion/Action on Approving
Negotiations with the Engineering Firm of Wright and Hammer for the
Senior Citizens Building
Mayor Hammons stated the six proposals received were scored and this
firm had the most impressive proposal. Trustee Wood stated they
actually came and looked at the center and took pictures. Trustee
Davis made the motion to approve the engineering firm of Wright and
Hammer for the Senior Citizens Building. Trustee Payne seconded
the motion. Roll Call: Trustee Davis-yes, Trustee
Payne-yes, Trustee Riska-yes, Trustee Wood-abstain.
Item #16 on the Agenda: Executive Session Pertaining to Personnel
– Water Department and Police Department – 10-15-1(H)(2) and
Threatening or Pending Litigation 10-15-1(H)(7)
Mayor Hammons stated the executive session is pertaining to water
department personnel only based on the appeal earlier. Trustee
Wood made the motion to go back into executive session at 7:50
PM. Trustee Davis seconded the motion. Roll Call:
Trustee Wood-yes, Trustee Davis-yes, Trustee Payne-yes, Trustee
Riska-yes. Trustee Riska moved to come out of executive session
at 8:12 PM. Trustee Wood seconded the motion. Roll
Call: Trustee Riska-yes, Trustee Wood-yes, Trustee Davis-yes,
Trustee Payne-yes. Trustee Wood attested the only thing that was
discussed was water department personnel and threatening or pending
litigation.
Item #17 on the Agenda: Further Action Due to Personnel
Trustee Riska moved to accept the evaluation. Trustee Davis
seconded the motion. Roll Call: Trustee Riska-yes, Trustee
Wood-yes, Trustee Davis-yes, Trustee Payne-yes.
Item #18 on the Agenda: Further Action Due to Threatening or
Pending Litigation
No action was taken.
Minutes
Regular Meeting
September 15, 2009
Page 8 of 8
ADJOURNMENT
Trustee Payne made the motion to adjourn at 8:14 PM. Trustee
Davis seconded the motion, and all were in favor.
_______________________________________
Mayor Sam
Hammons
ATTEST:
______________________________________
Kay Strickland, CMC
Village Clerk
