A federal judge has dismissed former Española planning director Marvin Vigil’s wrongful-termination suit and awarded the city an undetermined amount for legal costs.
Vigil’s case was one of four civil lawsuits filed in the wake of the 2006 municipal elections, which swept Mayor Joseph Maestas and his slate of allies into power. The new City Council reviewed 37 employees it considered to be exempt and fired four: Vigil, then-human resources director Ken Kollecker, then-finance director Lillian Brooks and then-senior center director Christine Bustos.
Vigil wasn’t about to take his firing lying down. He showed up for work the next day, court documents state.
“He went to his office, sat down, and made coffee,” court documents state. “People were running back and forth in front of his office trying to figure out what he was doing there.”
Vigil left the office when then-city manager Jeff Condrey showed him a termination letter, but all four terminated employees eventually sued. The city is now 2-1 in these suits, with Bustos’ case still being litigated. In addition to Vigil’s case, the city won Kollecker’s suit, which was dismissed Aug. 7 in federal court. Brooks’ case was settled in November 2007 for nearly $30,000.
The main difference seems to be that Brooks claimed she was hired as a regular, non-exempt employee and was never officially notified of any change in that status.
Vigil’s status as an at-will employee was never in substantial dispute. In fact, according to court documents, Vigil testified under deposition in 2001 that he believed his position was exempt and he served at the pleasure of the mayor. But he claimed the city still owed him due process.
In its final opinion issued Oct. 29, the court wrote that despite Vigil’s “resourceful” legal arguments, the city’s former policy was clear — exempt employees like Vigil gave up rights pertaining to “selection, appeal of disciplinary action, grievance procedures or dismissal.”
The court wrote in a footnote that a different judge in the same federal district had drawn the same conclusion in Kollecker’s suit and dismissed it.
Bustos’ suit, which is still pending, takes a different tack. It argues that the city’s personnel policy, which clearly made her an exempt employee because of her salary, had never been implemented before the infamous 2006 meeting. The city had a “practice and custom” of treating all non-appointed employees as regular employees, and had verbally undermined its own policy, her suit states.
At the time of the four plaintiffs’ employment, a greater number of city employees were vulnerable to the whims of the council. According to policies in effect at the time, at-will employees included not only major appointed positions but also department heads and all employees with base salaries over $36,000. The city manager could also, with the council’s approval, designate any position exempt.
A new policy enacted in 2007 removed the salary-based distinction. Now, the only exempt employees are the city manager, city clerk, city attorney, public safety chief, department directors and all employees of the Española Municipal Court.
Vigil and his lawyers did not return calls seeking comment. Aaron Viets, the lawyer who litigated the Vigil, Kollecker and Brooks cases on behalf of the city, declined to comment.
Persistent Conflict
In Vigil’s suit, the court agreed with the city’s primary arguments and deemed it unnecessary to address a separate argument — namely, that Vigil’s contract was void because he misrepresented his qualifications. According to court documents, Vigil’s position required a bachelor’s degree in planning-architecture or a related field.
“Although (Vigil) represented that he had such a degree, the city learned in this litigation that he does not,” court documents state.
Vigil was originally hired as a planner in 1994, and promoted to planning director the following year. The city was unable Tuesday to locate any of Vigil’s original application materials or resumés. Acting City Clerk Lucas Gauthier said Vigil’s personnel file has been missing since September 2007.
The court also rejected Vigil’s arguments that the Council fired him because his then-wife, attorney Yvonne Quintana, had successfully sued to remove some councilors’ names from the 2006 ballot. (Those who were challenged ran as write-in candidates.) It didn’t help Vigil that three other department heads were fired at the same meeting.
“All department heads were reviewed; several did not enjoy the support of the governing body and were terminated,” the court wrote. “To suggest that the procedure was designed only for the Plaintiff is contrary to what occurred.”
Vigil and Quintana have since divorced. According to an online database of court records, the couple filed for and was granted a divorce May 23 in state District Court.
Although the court acknowledged that there was a “strong and persistent conflict” between Mayor Joseph Maestas and Vigil, and that the mayor may have been influenced by Quintana’s lawsuit, it found that city councilors were the actual decision-makers. Their stated reasons for terminating Vigil, whether fair or unfair, didn’t seem to be a cover for retaliating against Quintana, the court wrote. Councilor Chayo Garcia testified that she was unaware of the lawsuit, while Councilor Helen Kain Salazar believed the lawyer in the case was a man, court documents state.
The councilors’ stated reasons for firing Vigil included alleged complaints from constituents about his responsiveness and professionalism as planning director. Councilor Danielle Duran said one voter was so upset with Vigil that he said he’d vote for Duran if she fired him, court documents state.
Several councilors also expressed concern over pre-election raises given to certain employees while Vigil was acting city manager. Councilor Eddie Maestas called the raises “reckless,” while Duran said their timing was “icky.”
Since its legal victory, the city has asked the court to award it $10,992.50 as reimbursement for attorney fees. That figure does not cover the entire cost of defending against Vigil’s suit. Rather, it covers only the costs of fighting Vigil’s claim that his First Amendment free-speech right was violated, According to the city’s motion, the claim is frivolous because the United States Supreme Court has held that a public employee who speaks pursuant to his or her official duties does not enjoy First Amendment protection for those statements.
Therefore, the city argued, that particular claim of Vigil’s was frivolous.
“The City should not have been forced to incur attorney’s fees in defense of this entirely baseless claim,” its motion states.