Española School District Board member Patrick Herrera on Aug. 15 delivered his letter of resignation to the Rio Grande SUN.
Herrera, who had reported to the SUN that he would be resigning at the regular Aug. 15 Board meeting, surprised everyone in attendance when he arrived at the meeting, demanded his seat at the table, and carried on as if his stated resignation never occurred.
“When the superintendent is done with her report, I’ll stand up, and explain why I am resigning.” Herrera said in a July 30 interview.
In his newest resignation letter, which he did not provide to the Board, Herrera said Aug. 15 he moved his time table up to Nov. 6. In the letter Herrera provides a generalized account of his time on the Board and his pride and gratitude for the opportunity. Herrera’s tone at the Aug. 15 meeting was very different.
Originally, according to the agenda for the Aug. 15 meeting, during the Board President’s report, the Board and attorney Geno Zamora, were going to deliberate on the proper plan of action to replace Herrera. The application process and protocol for Board member replacement would have needed to take place by Sept. 10, the end of the 45-day period stipulated by New Mexico Statute, Section 22-5-9, Local School Board Vacancies. If that deadline were not met, the New Mexico Public Education Department would step in and appoint a new representative for District 2.
“Next on the agenda is the application process and protocol for Board member replacement by Sept. 10,” Archuleta said. “And we’ve hit a little bit of a snag on this so, Geno can you come and explain this situation here.”
Zamora took his seat in front of the board, having planned to prepare the Board on the protocol to fill the District 2 vacancy, to begin explaining what the unexpected shift, given Herrera’s unexpected change of heart.
“President Archuleta, Board members, this item was placed on the agenda in time to comply with the open meetings act, which was last Friday afternoon,” Zamora said. “At that point in time, the District and the District’s counsel and the Board President had been relying upon a public statement by a Board member that that Board member would be resigning today. It’s my understanding that is no longer the case, and therefore, although we had this agenda item here, and there was documentation prepared for the presentation, it is my understanding that it is no longer needed.”
Someone resigned?
District 4 Board member Pablo Lujan, whose own “physical” residence is in question through the zoning tenets of New Mexico House Bill 98, seemed shocked and completely blindsided by the revelation that a Board member had recently “resigned” their seat.
“I mean, I guess my question…A Board member resigned?” Lujan asked.
Zamora, because of attorney client privilege had to handle any specifics of conversation lightly and in accordance to his legal obligations to the Board.
“I’m going to communicate very carefully, because there are some things that are attorney client communications that I can not disclose,” Zamora said. “However, there are other things that I can. To give context, on July 25 the Board asked that I make a presentation on two topics. Board norms and the changes to New Mexico Law through HB 98. The changes in HB 98 very specifically made changes to the creation of a board vacancy. After that presentation, a board member publicly announced that he would be resigning today, Aug. 15.”
Herrera immediately interrupted Zamora, in disagreement with the narrative that was being presented.
“I never said that.” Herrera said.
Lujan quickly piggybacked Herrera’s statement.
“He resigned during that Board meeting?” Lujan asked.
Zamora, again maintaining attorney client privilege, continued the account of events following Herrera’s initial resignation while answering Lujan’s question.
“No, not within the Board meeting, but as was covered in the Rio Grande SUN,” Zamora said. “As well as, and I cannot disclose specifics, the conversations in preparation of all these documents that were held between myself, the Board President and that specific board member and documents were prepared accordingly. As of a communication directly to myself today, that is no longer the case. The Board Member is no longer resigning today (Aug.15).”
New member sought
Prior to the Aug. 15 regular board meeting, a posting for applicants for potential District 2 replacements had already been put up on the website in preparation of the 45 day deadline. The plan, before Herrera rescinded his original resignation, according to President Archuleta, was to put out website notices and newspaper ads after the Aug. 15 meeting and allow for 10 to 12 days for interested applicants to submit their resumes.
After all applications have been submitted, the Board would have reviewed all applications and held interviews in a special session that would have been open to the public, in accordance with the statute. Again, Lujan seemed confused by the posting given that, by his understanding, that a board member had never resigned.
“We never even approved anything, why are we posting it on our website?” Lujan asked.
Herrera quickly followed up.
“You guys jumped the gun.” Herrera said.
Zamora again answered the questions of Lujan and addressed Herrera’s disagreement with the perception of his date of resignation.
“The reason that the gun was jumped was because you were starting, as a Board, to run into statutory deadlines,” Zamora said “The law states that the Board has 45 days to fill a vacancy, and if a Board fails to fill a vacancy within 45 days, then NMPED appoints, and the Board loses its authority to choose someone to replace a Board member.”
Zamora said the new law is very clear and the new language went into effect July 1.
The law states there are several dates that can be considered for a vacancy. The first date is July 1. The new law goes into effect and by operation of law a vacancy is created because the Board member has shifted his primary residence outside of the District that they were elected.
District or area?
Herrera immediately questioned the language of HB 98 and the interpretation given by Zamora.
“Can you give me clarification on district or area?” Herrera asked. “What is the law? Is it district or area?
While the law says area, as Zamora pointed out at the July 25 regular Board meeting and again on Aug. 15, the broader language of HB 98 is used because the law covers school districts, city council districts and water and sewer districts. Defining the law in one particular word to cover these areas is extremely difficult, he said.
Herrera again questioned the language of the law.
“How do you account for voter registration, driver’s license, primary mortgage, a fully functioning home?” Herrera asked.
Ultimately, in the face of the Board approving an investigation to determine whether a Board vacancy exists under New Mexico law at a special board meeting set for Aug. 22, the burden of proof will solely fall on the shoulders of Herrera or any board member that finds themselves not “physically” residing in their elected district, according to HB 98.
“It is up to each individual Board member to determine if they are in accordance with the law,” Zamora said. “Their own personal determination is their own personal determination. They can stand behind that determination, but they also have to defend it.”
“I have nothing to hide,” Herrera said, in response to Board Vice President Yolanda Salazar’s questioning of his “physical” residence. “If you want my mortgage, if you want my second mortgage on my other property, if you want my third mortgage on my other investment properties? I have two investment properties, I have one primary address. How I make my money is developing properties. If you want, I will get you all that proof. If you want to come break bread with me at my table? Lets go”
After Herrera defended his “physically” residing in his District 2 residence, Salazar then asked if Herrera had in fact reported to the SUN that he would be resigning effective on Aug. 15.
“So, the admittance in the newspaper did not come from you?” Salazar asked. “Did you admit to the newspaper that you were resigning?”
Herrera immediately responded to Salazar’s questions, staunchly defending his stance that he is not outside of the law.
“I admitted to the paper that if I move, I will resign right at that moment,” Herrera said. “I checked the law, my voter registration, my insurance to my automobiles gets sent there, everything on the checklist is there. If you want, I will give you everything you want. If you want we can use my phone and call the AG and the Secretary.”
Herrera said in Aug. 2 issue ot the SUN that he is within the law and transparent.
“I’ve accomplished what I needed to accomplish,” Herrera said after his decision to resign. “Myself and Mr. Serrano brought stability to the board, and it’s time to move on.”
On Aug. 16 in a follow up interview with the SUN, Herrera said that all he wants is the opportunity to have a hand in selecting his replacement for District 2, despite telling Archuleta that he wasn’t resigning the night before.
“I would like a say in it,” Herrera said. “My people who voted me in and have been calling me and telling me that they are disappointed that I am leaving, and that I didn’t finish this or that for them, I at least owe them that. I want someone that will fulfill the wishes of the people that voted me in. There are issues that I still want to address. I welcome an investigation, I have nothing to hide.””
The issue now, according to HB 98 and Zamora, is that if an investigation does take place and a board member if found guilty of not “physically” residing in their elected district, that the Board could lose their ability to hold elections and appoint their own replacement because they would be in violation of the 45 day window that they have to appoint, which, according to the law and if Herrera is found guilty and a vacancy is discovered, could be considered on July 1 when the law went into effect.
Issues could also arise down the road if a board member that is found to be in violation of the law was a tie breaking vote in matters of school closures, bond issues, etc. Especially, if someone is on the losing end of a board decision. According to Zamora.
President Archuleta, in light of Herrera’s Facebook attacks on Superintend Bobbie Gutierrez after he was notified of the Aug. 22 special session, is disappointed in the events of the last week.
“For the past year, the Board has really focused on building a strong educational environment for our students and staff. As Board members, we try and set an example for our students. It’s disappointing when the personal actions of a Board member distract from the successes in the classroom.