Did Aztec City Commission violate the Open Meetings Act and state procurement code?
FARMINGTON — A Farmington lawyer is alleging Aztec City Commission violated both the Open Meetings Act and the New Mexico Procurement Code when selecting Nicci Unsicker to serve as city attorney.
The lawyer, Steve Murphy, said contracts for legal services are not among the reasons a city government can close a meeting.
“It doesn’t take a rocket scientist to figure out that this is a request for legal services,” he said when reached by phone on Sept. 18.
Murphy sent a letter to the City of Aztec addressed to Mayor Victor Snover dated Sept. 16. The letter outlines the areas where Murphy believes the Aztec City Commission violated state laws.
“Finally, the residents of the City of Aztec and the State of New Mexico expect and demand their elected officials and the City Attorney to follow the laws of the State of New Mexico,” Murphy states in his letter. “Your willful and intentional violations of the New Mexico Law will not be tolerated.”
City Finance Director Kathy Lamb, who served as procurement manager for the legal services contract, said the city is working with independent counsel to address Steve Murphy's concerns. She said she has advised Murphy and his law partner, Tyson Gobble, that she does not anticipate a determination until the week of October 7.
Agenda lists sole source procurement as reason for closed session
The City Commission went into closed session on Sept. 10 before coming out of closed session and voting 3-1 to award the contract to Unsicker Law Firm. Commissioner Austin Randall was not at the meeting. Commissioner Sherri Sipe cast the sole dissenting vote.
The Open Meetings Act requires the reason for a closed session to be listed on the agenda. The agenda listed a section of the Open Meetings Act that allows a meeting to be closed to discuss purchases exceeding $2,500 when there is only one source.
Unsicker’s law firm was one of three applicants that responded to the city’s request for proposals.
However, the discussion of contracts for legal services is not one of the reasons the City Commission can close a meeting.
Murphy alleges mayor wanted closed session because of procurement code
Murphy said he received more than a dozen phone calls after the meeting from people who had been inside the closed session telling him that Snover had said ‘I have been told how to get around the procurement code by (New Mexico Municipal League General Counsel Randy Van Vleck) and I’m going to pick my girl.’
Van Vleck was out of the state and could not be reached for comment. New Mexico Municipal League Risk Services Director Ed Zendel said Van Vleck only advised Snover and other members of the City Commission about what the procurement code allows.
“He in no way told the mayor how to get around the procurement code,” Zendel said when reached by phone on Sept. 19.
Snover said he is not in a position to comment on the allegations, however he did say that the decision to go into closed session was not due to his decision to vote for Unsicker’s contract.
Evaluation committee recommends Murphy, Gobble
Murphy alleges the City Commission violated procurement code by not selecting his firm when it was the top ranked by the evaluation committee made up of city department heads.
He said that is a violation of Chapter 13 of the New Mexico Procurement Code. Unsicker ranked the lowest of the three proposals.
The procurement code states "the award shall be made to the responsible offeror or offerors whose proposal is most advantageous to the state agency or a local public body, taking into consideration the evaluation factors set forth in the request for proposals."
A procurement code expert at the New Mexico General Services Department and a lawyer for the City of Farmington both said that does not mean the City Commission was required to award the bid to Murphy and Gobble, who had the highest score.
However, the City Commission could only award the contract to Unsicker if the decision was based on the conditions outlined in the request for proposals.
The evaluation committee gave Unsicker Law Firm’s proposal better rankings in terms of cost and affiliations, however it recommended contracting with Murphy and his colleague, Tyson Gobble, because their law firm has more resources. The contract would have had Murphy representing the city in court while Gobble would serve as the attorney for other legal matters.
The committee highlighted in its report to the commission that there would be some conflicts where Murphy would be defending clients through his law firm that were being prosecuted by the city. During those times, the city would have to contract with outside counsel.
Snover has a history of controversy
This is not the first time Snover has stirred up controversy.
Snover ran unopposed for the Aztec City Commission in 2018 and was appointed mayor on a 3-2 vote. The other new members of the commission, Mark Lewis and Rosalyn Fry, voted for him to be appointed mayor. They have also backed many of his controversial proposals as well as voted in favor of contracting with Unsicker Law Firm.
Within months of Snover taking the reins in Aztec, a resident alleged the mayor attempted to have him fired from his job at Wells Fargo. The conflict emerged after the resident made a distasteful comment on a picture on Snover’s Instagram account.
Earlier this year, a group of Aztec residents started circulating petitions to recall Snover, Lewis and Fry from office. However, the petitions stopped when the residents learned the law did not allow Snover, Lewis and Fry to be recalled because they had not broken any laws. The residents wanted a recall election because Snover, Lewis and Fry had voted against turning Aztec into a Second Amendment Sanctuary City.
Hannah Grover covers government for The Daily Times. She can be reached at 505-564-4652 or via email at firstname.lastname@example.org.
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