bY LINDA BENTLEY | AUGUST 22, 2013
Abujbarah sues over termination and open meeting law violation
‘All legal action transacted by any public body during a meeting held in violation of any provision of this article is null and void …’
CAVE CREEK – On Wednesday, former Town Manager Usama Abujbarah filed a complaint and special action seeking mandamus relief in Maricopa County Superior Court against the town of Cave Creek, the mayor and town council for violations of Arizona’s open meeting law at the June 10, 2013 special meeting during which he alleges he was improperly terminated.
Additionally, Abujbarah’s Attorney Dan Bonnett of the Martin & Bonnett PLLC law firm filed an application for an order to show cause and request for an expedited hearing on the complaint.
The complaint seeks to permanently enjoin the town from violating Arizona’s open meeting law and asks the court to issue a writ of mandamus compelling the defendants to reinstate Abujbarah as town manager, rescind the termination, restore all benefits and restore full seniority as though he had not been previously terminated.
By statute, if he prevails, Abujbarah would also be entitled to an award of attorneys’ fees and costs in connection with bringing the action.
According to the complaint, following Vice Mayor Adam Trenk, councilmen Mike Durkin, Reg Monachino and Charles Spitzer’s election to council but prior to being sworn in, Trenk made a written request to the mayor and town clerk to place an item on the June 3, 2013 meeting agenda, with the intended purpose removing Abujbarah as town manager.
Because Bonnett was unavailable to attend the regular council meeting on June 3, the agenda item requested by Trenk was set for a special meeting on June 10 as the sole item.
The agenda item read: “Council discussion and consideration of the employment, assignment, compensation, benefits, promotion, demotion, dismissal, termination and/or resignation of the town manager and/or consultation with the attorneys of the public body for legal advice regarding the employment, assignment, compensation, benefits, promotion, demotion, dismissal, termination and/or resignation of the town manager. A.R.S. §38-431.03(A)(1) and (3).”
Bonnett, both before and during the June 10 meeting, raised objections as to the manner in which council was proceeding, including procedural matters relating to the setting and notice of the special council meeting.
The complaint also alleges Trenk, Durkin, Monachino and Spitzer “made it clear from the outset their intention to dismiss [Abujbarah] as town manager despite having just taken office, not performing any performance evaluation of plaintiff as town manager while on the council that would justify [Abujbarah’s] termination …”
The newly seated council neither gave Abujbarah any form of specific formal direction as to what each expected of him nor an opportunity to perform as town manager under their direction as members of town council.
During that meeting, Trenk made a motion by reading from a document that appeared to have been prepared prior to the meeting.
The motion read by Trenk was called for a vote without a single amendment offered or point of order raised by any council members, despite the motion containing multiple issues, several of which were not agendized.
In fact, Trenk’s motion called for another special meeting to appoint a search committee for a new town manager, appointing a chairperson of such a committee and conducting an independent audit of town funds, which the complaint states implied impropriety on the part of Abujbarah.
The motion carried by a vote of 4-3, with Mayor Vincent Francia, councilmen Ernie Bunch and Thomas McGuire dissenting.
Following passage of the motion, Abujbarah was notified in writing that his employment will terminate, effective Sept. 9, 2013.
However, as Trenk’s motion provided, Abujbarah was barred from carrying out his duties as town manager since June 10.
A.R.S. §38-431.05(A) states, “All legal action transacted by any public body during a meeting held in violation of any provision of this article is null and void …”
The complaint alleges discussion, deliberation and a “straw vote” would have had to have occurred among Trenk, Durkin, Monachino and Spitzer to vote in favor of Trenk’s motion in advance of the meeting.
Statute also provides: “Any person affected by an alleged violation of this article, may commence a suit in the superior court in the county in which the public body ordinarily meets, for the purpose of requiring compliance with, or the prevention of violations of, this article by members of the public body …”
Abujbarah has been continuously employed by the town since 1996 and as town manager since 1999.
Due to the multiple violations of Arizona’s open meeting law committed by defendants during the June 10 meeting that will result in Abujbarah’s termination of employment effective Sept. 9, Abujbarah is seeking an expedited hearing.
The application for an order to show cause asserts, “Defendants have failed to perform one or more of their duties as required by law as to which they have no discretion, have proceeded or threatened to proceed without or in excess of their jurisdiction and/or legal authority, and have made one or more determinations that were arbitrary and capricious or an abuse of discretion.”
