9/17/09
Northern New Mexico College spokesman Tom Alvarez has been slapped with a lawsuit for allegedly not complying with the state Inspection of Public Records Act.
Institutional Project Management, based in Chicago, Ill., filed a writ of mandamus June 12 in state District Court against Alvarez, who acts as the college’s custodian of public records, after the company obtained an e-mail sent among Northern officials that it claims should have been provided to the company, but wasn’t, in relation to a request for records. The writ is essentially a judge’s order that would require the college to turn over the documents, pay a fine of $100 for every day since the request was due and reimburse the company for its legal and attorney fees.
The complaint stems from another, ongoing suit in which the company claims the college illegally retracted in August 2008 a request for proposals to build student housing.
Alvarez said he knew about the latter case but was unaware of any pending legal action involving the company and a request for public records.
“That sounds like something handled strictly by our lawyers,” Alvarez said.
Josephine Aguilar, assistant to Interim President David Trujillo, said Trujillo would not comment on the case because it was still unresolved. The lawyer handling the case for Northern, Rachel King, of the Santa Fe-based firm Sutin, Thayer and Browne, did not return calls seeking comment.
The company’s attorney, Mickey Beisman, said Northern is in clear violation of the Act.
The e-mail Northern did not provide is not covered under any of the Act’s exceptions, Beisman said.
“To put it simply, the fact is that we sent a request under (the Act), and we did not get the documents we asked for,” Beisman said.
In the public records complaint, the company requested April 24 to inspect all documents drafted after Sept. 2, 2008, discussing the development, design, financing or any other services related to the construction of student housing, according to court documents.
The college produced two e-mail strings involving former Director of Facilities and Capital Projects Anne Quinn, former executive vice president Tom Garcia, Purchasing Director Erlinda Atencio, former President Jose Griego and state Higher Education Department Capital Projects Coordinator Camille Anaya, the documents state.
However, the college failed to produce an e-mail dated Feb. 27, 2009, from Quinn to Michael Vasilko, of Vasilko Architects, a Chicago-based architect, discussing a new request for proposals, according to the complaint.
Beisman said she obtained that e-mail “through other methods.”
When Beisman confronted Northern about the missing e-mail, the college told her the correspondence had been deleted, Beisman said.
The college never produced any evidence or an affidavit in support of its claim that the e-mail had been deleted, and later told Beisman its failure to comply with the request was a moot point because Beisman already had the document, Beisman said.
“Northern’s counter-argument was, ‘Well, you’ve already got all the documents,’” Beisman said. “Well that’s not the point.”
The case is scheduled for a hearing Sept. 18 in state District Court, but Beisman said Northern’s attorney was trying to move the hearing because of a scheduling conflict.
If the company wins the suit, Northern could have to pay $100 for each day since the documents were due, which was May 11, plus attorney fees, according to court documents. Through Tuesday, that would add up to $13,100 in fines.
Beisman declined to comment on how much her fees might be because she has not yet separated out her fees for working on the public records case, as opposed to the other suit over the cancelled request for proposals.
The two cases will remain separate because Judge Sheri Raphaelson denied the company’s motion Aug. 28 to include the e-mails obtained under the Act in the construction suit.
“That (motion) to supplement our evidence came out of the records we did get,” Beisman said. “We thought (the e-mails) showed ongoing actions by the college, that they were starting to get going with another architect.”
In the construction dispute, the company accuses Northern of benefiting from IPM’s plans for a 140,000-square-foot building with about 124 dormitories. The company claims it helped Northern refine those plans, as well as the college’s plan for financing the construction, and Northern is now trying to take the plans to another company, court documents state.
State procurement code allows Northern to the cancel the request “when it is in the best interest of the state agency or local public body,” but the company argues Northern abused that provision to obtain “knowledge and expertise” from the company before cancelling the request.
The construction case is awaiting a hearing date before Sheri Raphaelson, Beisman said.
Meanwhile, construction is on hold. Northern administrators have said they will issue a new request for proposals only after IPM’s complaint is resolved.
The company is requesting Northern either award it the contract to build the dormitories or pay $301,592 for its services on the original plans.