Los Lunas Board of Ed denies request for legal fee reimbursements

LOS LUNAS — The turbulent effects of the 2021 suspension of the Los Lunas Schools Board of Education are continuing to be felt two years later.

At the Sept. 12 board of education meeting, board president Tina Garcia and board members David Vickers and Bruce Bennett addressed a request for reimbursement of legal fees put forth by fellow board members Eloy Giron and Bryan Smith.

In May 2021, the entire BOE was suspended by the New Mexico Public Education Department for alleged misconduct.

“Board members Giron and Smith were removed by PED, and they objected to the removal through a series of legal actions, starting with their defense in the public education hearing and filing an appeal to the district court,” said the school district’s attorney, Roxie De Santiago, at the Sept. 12 meeting. “When the district court agreed with (Giron and Smith), PED filed an appeal and the matter remains pending at the Court of Appeals today, and the matter will likely not be decided for another six months.”

Smith and Giron recently submitted a request to the board for reimbursement of legal fees acquired through the on-going litigation between them and PED.

The matter was initially put on the Aug. 8 agenda as the discussion item “procedure for due care of reimbursement of legal fees.” However, due to concerns from the News-Bulletin and other members of the public regarding specificity, the item was tabled by Garcia “to maintain transparency.”

At the Aug. 22 board meeting, it was again removed from the agenda on a 2-1 vote. Vickers and Bennett voted to move it to the following board meeting because they wanted to make it an action item instead of a discussion item. Garcia voted against this, expressing disappointment in the decision.

At the Aug. 22 meeting, Sonya C. Moya, who is currently running for election to board and who was appointed to the governing council during the board’s suspension, addressed the matter through public comment.

“The May 26, 2021, notice of suspension letter from Public Education Secretary Ryan Stewart at the time, sent to all board members, said, ‘Any legal representation of members of the suspended board cannot be charged to or be paid by the district.’ I am unsure of what is unclear about that statement,” Moya said.

“The district and taxpayers have already significantly paid under financial oversight of members of that suspended board. There’s already been a $600,000 wrongful termination settlement of a prior superintendent — $200,000 of that directly came from the district’s operational funds. To ask the district and the taxpayers to foot the bill for your legal fees is unconscionable,” Moya said during public comment.

Dana Sanders, the prior LLS superintendent who received the settlement, also addressed the board during public comment at both the Aug. 22 and Sept. 12 board meeting.

Sanders said hiring attorneys as private citizens and asking the district to pay for legal fees is a misuse of public funds. She cited the letter from Stewart, state regulations and attorney general decisions on similar cases.

She also cited a New Mexico Administrative Code regulation that states, “No district funds shall be used for payment of personal legal fees, including attorney’s fees and costs, of any school district or charter school employee or local school board member. Any payment of legal fees must serve a clearly identifiable public interest.”

“This is at the very least an unethical use of public funds and I ask the three board members who can vote to put their proverbial foot down and deny this request,” Sanders said at the Sept. 12 BOE meeting. “The power of making fiscal decisions is one duty of the school board. Giving up your responsibility to someone else because you don’t want to make a tough decision regarding board members is cowardly.”

In giving responsibility to someone else, Sander’s is referring to the board’s recommendation from their attorney that they hire an impartial official to make the decision.

“The decision to pay the fees must be made by an impartial official or official body. We focused on the impartial official for two reasons,” De Santiago said at the Sept. 12 meeting. “One, this issue is clearly wrought with emotion and a lot of tension. It’s important to the community, and there could very well be a lot of money at stake, so we don’t want to get the decision wrong.

“The second is for the protection of this board. Whatever decision this board makes, one way or the other, could result in more litigation,” she said. “When there is an impartial official who is selected, and there’s no objection to that selection, it minimizes the likelihood of additional litigation which is the goal of our office at this point.”

The impartial official De Santiago and her office recommended is retired Court of Appeals Judge Michael Bustamante, whose decision would have come back to the board for review. She said Bustamante requested payment at the rate of $350 an hour.

The amount raised some eyebrows among the board and among those in attendance at the meeting.

“It’s cheaper than a hearing, I will say that, and also cheaper than defending another lawsuit for doing the wrong thing,” said De Santiago.

When asked by Bennett about how much money Smith and Giron were requesting for reimbursement, De Santiago said she doesn’t know the amount and she has specifically requested to not know the amount.

“We do not know the dollar figure. In my opinion, the dollar amount is the least relevant issue because the most important issue is the continuation of the protection of this district and board as it determines the correct procedure,” said De Santiago.

The News-Bulletin filed an Inspection of Public Records Act request with LLS for the dollar amount being requested. De Santiago responded to the request stating LLS cannot permit the IPRA request because the documentation in their possession are attorney/client communications.

Vickers expressed concern about not knowing anything about the level of expenditure being requested and how they can justify spending public money to pay for an individual’s attorney fees that, he said, in no way benefits the school district.

“What I believe is this is not the best use of the district’s money, and I think we all know that. It doesn’t help the kids, classroom, teachers and it’s not budgeted,” said Garcia. “However, there is a process we’re supposed to follow and I want to make sure we get that right because what I care about is the courage of making the best decision for this district and us as a board.”

Vickers made a motion to deny the request from Smith and Giron for reimbursement of legal fees.

“I’m not going to vote on the worry of being sued. I’m going to vote based on what I believe is the right thing to do,” said Vickers.

Bennett seconded the motion and Garcia voted against it. The motion was approved on a 2-1 vote.

“I think our district has suffered enough through this process and I don’t want to see any more legal action and I’m just sorry it has to continue,” Garcia said after the vote.

The News-Bulletin contacted Smith and Giron for comment following the board’s decision at the Sept. 12 meeting.

Smith wrote in an email, “It is unfortunate that two board members, guided by a community member with no legal experience, made the decision to put this discussion item to a vote without going through the process outlined by the Attorney General’s Office and recommended to the school board by our paid legal counsel. Instead, the two board members chose to impede my right to an impartial officials decision.”

“Mr. Vickers testified at the PED suspension hearing hearsay evidence against myself and Mr. Giron that amounted to nothing. But the fact that he testified makes him the opposite of impartial. There was an avenue provided that was fair and would have looked at facts. Mr. Vickers and Mr. Bennett chose not to take it,” Smith said.

Giron referred all questions to their attorney due to the ongoing litigation regarding their appeal. When asking Giron and Smith’s attorney about the amount in legal fees requested, he said the board members did not want him to share this amount or discuss anything about their legal representation.

Giron, representing District 2, and Smith, representing District 4, are not seeking reelection to the Los Lunas Board of Education. Board President Garcia is also not running for reelection.