Lawsuit against county set for Nov. 6 hearing

By Steve Hansen
QCS Managing Editor

A lawsuit accusing Quay County of violating the state’s Inspection of Public Records Act (IPRA) is set for a Nov. 6 hearing before Ninth Judicial District Judge Fred T. Van Soelen in Clovis.

Drake Swenson and Christina Fleming, who own land next to the proposed Saddleback subdivision east of Tucumcari, filed their complaint in 10th District Court on July 12. Tenth District Judge Albert Mitchell later recused himself from the case.

The hearing will be on their motion for summary judgment against the county. If the county is held liable for failure to comply with the act, it could face fines of $100 per day of non-compliance, according to state statute.

In their suit, Swenson and Fleming charged the county failed to disclose any of the numerous public documents requested in a letter sent through their attorney, Pete Domenici of Albuquerque, on March 8.

The suit also alleges county government officials failed either to notify Domenici, Fleming or Swenson that they had received the request within three days — as the law requires — or to provide any other communications about the request.

The county “provided neither a denial letter nor advised plaintiffs that their request was excessively burdensome within 15 days of receipt of the plaintiff’s public records request,” the suit alleges.

Warren Frost, the county’s attorney, called the suit “frivolous.”

The county, Frost said, followed established procedure and did not violate the public records act. He said that on the same day the request was received, the county sent a bill for $17 to cover the cost of copying the documents. The bill was never paid, he said.

In a subsequent filing, Domenici charged that the invoice for the $17 “was made after the fact and only for the purposes of defending this litigation.”

Frost said the charge is “outrageously false.”

“The county had no motivation not to give these people these documents,” he said.

Domenici’s office never received the bill, according to a defense filing, because a facsimile machine was not functioning that day.

In an affidavit filed in the case, County Clerk Ellen White said the she had attempted to deliver the requested documents by fax machine, but the fax machine was not working that day because of problems related to a recent switching to a different long-distance carrier.

In a rebuttal filing, Domenici said it was strange the county admits it received the information on a facsimile machine on that same day but could not send documents by fax to comply with the plaintiffs’ request. In addition, the rebuttal said, “all fax machines have confirmation ability,” meaning that such machines can signal whether a transmission was successful.

Frost said, “For one thing, we don’t know that they didn’t receive the billing statement. Even if you assume that they didn’t, for a couple of weeks they (the county) were having problems with their long-distance lines.”

He could not explain why a “no-go” notification from the facsimile machine would not have been noticed, he said, but added, “We in good faith believe we sent out that bill.”

Frost said he could not explain how the same fax system that received the request for documents could not function to send them on the same day.

On Aug. 1, case filings show, Domenici’s office did remit $17 and the documents were sent by U.S. mail to Domenici’s office. Domenici’s office then acknowledged receipt of the documents.

The plaintiffs’ public records request of March 8 seeks documents of numerous kinds “in connection with any and all Quay County Board of Commissioners and Quay County Manager’s initial reviews, denials and final approval of the Saddleback subdivision…”

At the time of the letter, the county commission had already unanimously approved the subdivision once.

Fleming and Swenson challenged the commission’s initial approval of the subdivision, which occurred in January, and eventually filed suit against the commission, alleging violation of county ordinances, potential conflict of interest and failure to hold public hearings in approving the Saddleback plan.

At a meeting on May 13, the commission withdrew its approval. On the following day, the subdivision’s developers reapplied for the same subdivision and were successful in getting it approved within the next several weeks.

The Saddleback subdivision plans to host four homesites on 23 acres owned by Paul Quintana, a local rancher. Wiegel, Quintana and Shirley Morper, Tucumcari, own WMQ Farms, the subdivision’s developer. Each lot will sell for $30,000, according to application documents.

“This suit is retaliation against the county because the plaintiffs were unsuccessful in stopping the subdivision,” Frost said.

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