BY LINDA BENTLEY | OCTOBER 1, 2014
Abujbarah’s lawsuit against town presses on
Second round of recall petitions to be turned in
CAVE CREEK – As this week’s issue rolls off the press, Cave Creek Caring Citizens Committee will have just filed signature petitions in its second attempt to recall Vice Mayor Adam Trenk and Councilman Reg Monachino.
Recall petitions for councilmen Mike Durkin and Charles Spitzer will be turned in early next week.
Once again, Trenk rises to the top as the most unpopular of the four council members with more citizens signing to recall him than any of the others.
Meanwhile, Attorney Dan Bonnett replied last week, on behalf of former Town Manager Usama Abujbarah (l), to defendants’ (town of Cave Creek and Cave Creek Town Council) response to Abujbarah’s motion for summary judgment and to defendants’ cross motion for summary judgment.
Trenk, Durkin, Monachino and Spitzer claimed they did not violate Arizona’s open meeting law (AOML) because they voiced criticism of Abujbarah during their election campaign.
However, as Bonnett points out, the evidence shows ongoing discussions and deliberations among Trenk, Durkin, Monachino and Spitzer, in which Mayor Vincent Francia also participated, regarding council’s vote to terminate Abujbarah as town manager.
Defendants engaged in multiple serial emails and communications, in some cases using third parties such as Pennsylvania resident Mike Chutz and Rodney Glassman, whom Trenk preselected to replace Abujbarah, in an effort to circumvent the AOML.
While defendants claimed Trenk’s motion to terminate Abujbarah made no mention of Glassman, Bonnett stated, “That assertion is misleading. Defendants knew full well that Rodney Glassman was proposed as the ‘acting town manager’ at the June 10 meeting as part of the Trenk motion before it was seconded and a vote was taken because one of them (Trenk) said it and each defendant (including Durkin Monachino and Spitzer) was present.”
Trenk concluded his motion by explicitly stating, “And I have suggestions as who we might appoint as the acting town manager, I’d like that to be noted on the agenda for June 12th as Rodney Glassman.”
During the June 12 council meeting, Councilman Thomas McGuire questioned whether the agenda item was to consider only the appointment of Glassman, stating council had not gone through a procedure of open nominations, and asked if another nomination could be made and, if so, when.
Town Attorney Gary Birnbaum advised council to interpret the agenda as written and the only matter on the agenda was to consider appointing Glassman as interim town manager.
He said if it was intent of council to approve Glassman they could vote to do that, adding, if it is the intent of council to disapprove or adopt a different procedure or to consider other candidates, then they should vote “no” on the pending motion.
As outlined in the reply, correspondence between Trenk, Durkin, Monachino, Spitzer and Glassman indicated they all conspired in advance, even before supposedly deciding to terminate Abujbarah, to install Glassman as interim town manager.
With at least four votes necessary to remove Abujbarah, Spitzer, who was going to be in New York during the June 10 meeting, at the last minute decided to purchase a round-trip ticket to return to Cave Creek just to vote in person at the that meeting, even though Trenk offered him a couple of his family members’ addresses in New York where he could appear telephonically.
Meanwhile, according to Abujbarah’s brief, an employment agreement for Glassman to become interim town manager was being circulated among Glassman, Trenk and one of the town’s attorneys before the June 10, 2013 vote was taken.
On June 7, Trenk assured Glassman in an e-mail that Monachino had enough votes to appoint him as the interim town manager.
Bonnett asserts that defendants attempted to “rewrite” Abujbarah’s complaint by arguing Abujbarah was attempting to manipulate the AOML to provide a basis for a private damages claim for termination of his at-will employment.
According to Bonnett’s reply, their assertion is untrue and fails because defendants point to nothing, nor can they, in the complaint that alleges a breach of contract claim or request an award of monetary damages.
Additionally, he states, “The gravamen of plaintiff’s complaint is that the defendants have violated the AOML” and Abujbarah has standing to bring this action per A.R.S. § 38-431.07 (A).
Third, he states, if the court agrees with Abujbarah and declares defendants violated the AOML, the Trenk motion would be rendered null and void.
Claiming defendants also misstate Abujbarah’s argument regarding the burden of proof, Bonnett states the standard of proof is a preponderance of the evidence, rather than some higher standard advocated by defendants.
Pointing out Abujbarah has satisfied his burden, Bonnett states defendants have failed to meet theirs and “no trier of fact can reasonably find that defendants did not violate the AOML given all the evidence.”
Citing case law, Bonnett argues the purpose of the AOML is advanced by requiring members-elect to adhere to its requirements.
Although defendants argued they were exempt from open meeting laws until they officially took office, Bonnett quoted from Hough v. Stembridge, a similar Florida case, where the status of council-members-elect, who argued they were exempt until they officially took office, and meetings and communications among them were at issue in terms of Florida’s open meeting laws.
The Florida appeals court stated, “We simply cannot accept this line of reasoning. To adopt this viewpoint would in effect permit … members-elect of a public board or commission to gather with impunity behind closed doors and discuss matters on which foreseeable action may be taken by that board or commission in clear violation of the purpose, intent and spirit of the government in the Sunshine Law.
“We find the position untenable to hold on the one hand that Florida Statute 286.011 is applicable to elected board or commission members who have been officially sworn in and on the other hand inapplicable to members-elect who as yet merely have not taken the oath of public office. An individual upon immediate election to public office loses his status as a private individual and acquires the position more akin to that of a public trustee …
“To hold otherwise would be to frustrate and violate the intent of the statute which ‘having been enacted for the public benefit, should be interpreted most favorably to the public.”
It doesn’t appear, from the mountain of evidence in this case, that defendants disagree they met prior to being sworn in on June 3, 2013 when they discussed termination of Abujbarah as town manager.
According to Abujbarah’s complaint, defendants engaged in “legal action” regarding Abujbarah’s status outside the June 10, 2013 public meeting, stating they’ve ignored both fact and law.
Because several aspects of Trenk’s motion exceeded the scope of the June 10, 2013 Special Meeting agenda, Abujbarah claims it violated the AOML.
The Arizona Agency Handbook clearly states public meeting notice must be specific and that “[t]he degree of specificity of the agenda depends on the circumstances.”
The fact that Trenk’s motion was prepared in advance, since he read it from a prepared document, but not distributed in advance of the June 10 meeting was also a violation of the Town Code.
Defendants failed to address other violations of the AOML, including “Splintering of a Quorum” and the “Single Subject Rule.”
As a matter of law, Abujbarah asserts summary judgment should be granted in his favor.
However, in the alternative, if the court decides there are genuine issues of material fact precluding summary judgment for either party, he has requested the matter be set for trial.
