By Dianne Stallings
Ruidoso News
RUIDOSO, N.M — Claiming violation of New Mexico’s Whistleblower Protection Act and the state’s Inspection of Public Records Act, former Ruidoso fire chief Tom Gavin is suing the Village Council and Village Manager Debi Lee, individually and in her official capacity.
The suit, filed Tuesday in 12th Judicial District Court on behalf of Gavin by Ruidoso attorney J. Robert Beauvais, asks for damages to be proven at jury trial, statutory damages, the cost of the suit and attorney fees, and punitive damages. Detailed in five counts, Gavin, who was fired Jan. 5, contends he was wrongfully terminated and was denied due process, and that his 1st Amendment rights to free speech were violated.
“The court should find the decision to terminate Gavin was arbitrary, capricious or not supported by law and should reverse the decision,” the suit states. “Gavin should be reinstated with no loss of pay or seniority to his employment.”
Village officials did not respond to a request for comment by press time.
According to the lawsuit, Gavin was hired Feb. 6, 2008 for the classified position of fire chief, and obtained permanent status and protected property interest in his employment on Feb. 6, 2009. He received exemplary performance evaluations, including from Lee, through 2010.
The suit contends two incidents led to his dismissal.
The first occurred in July 2010, when Gavin was asked to perform a fire inspection of a private restaurant and he cited 15 violations, giving the business owner the standard 30 days to correct.
The tenant occupying the restaurant complained to the (village officials and Lee), the suit states. “Upon information and belief, political pressure was brought to bear on the (village) by one or more elected (village) council members to reverse Gavin’s corrective notice. Lee took the position the (village) was subject to a lawsuit by the tenant and the owner,” the suit states.
In violation of public policy and written procedures for fire inspections, when Gavin was out of town, the assistant fire chief was directed to conduct another inspection, the suit states. He found the same violations, but extended the correction period to one year. Gavin complained about the potential danger, but Lee refused to reinstate the 30 day time period, the suit states. As a private citizen, Gavin reported “a serious health and safety concern” to the State Fire Marshal.
The second incident centered on remodeling of the Ruidoso Convention Center. The suit contends plans intentionally were not sent to Gavin for his review, because village officials suspected the remodel would not comply with existing fire codes. During a conference of fire officials from around the state, Gavin noticed some fire code violations there involving the sprinkler system and exit signs. He contacted the deputy village manager, but was rebuffed, according to the suit. He again contacted the State Fire Marshal as a private individual.
“As a result, the village was required to remediate the violations, although publicly, (village officials) denied that any violations occurred,” the suit states.
Gavin subsequently reported his inadvertent error involving the use of public money. He was given a three-day suspension, although the suit contends Lee violated the same policy and publicly stated such mistakes were not uncommon. Similar conduct by other employees were not punished in the same manner, according to the suit.
The suit states that at a Nov. 29 meeting Gavin thought was to discuss his performance as fire chief, Lee instead gave him an ultimatum to resign or be terminated. Gavin refused to resign his employment, but agreed to step down as chief as long as any transfer was, “without prejudice and will no loss of seniority and compensation.”
When Lee pressed her demands for a resignation, Gavin retained Beauvais, who restated Gavin’s previous offer, the suit states.
At a predetermination hearing Dec. 27, Gavin could not bring an attorney and was not allowed to call witnesses, cross examine village witnesses or dispute the evidence against him, according to the suit. On Jan. 6, 2011, he was terminated by Lee, justified with a 86 “findings” against him.
A post termination hearing was requested by letter to Lee along with a request to produce documents that supported the manager’s findings and other paperwork that Gavin “knew would controvert the state basis for his termination.”
Despite repeated requests for the information, to date, “and without justification and in violation of (the Inspection of Public Records Act),” Gavin has been denied access to the records, states the suit.
Ruidoso asserts many of the records are privileged and will not be provided, according to the suit.
On March 7, Beauvais again demanded a date for the post-termination hearing, but to date, one has not been scheduled.
The suit contends Gavin has been retaliated against as a result of his exercise of free speech and in violation of the Whistleblowers Protection Act; that he has been denied a post-termination hearing within a reasonable time; and was denied reasonable access to public records.
The suit states he is en-titled to damages to be proven at trial but to include lost wages and benefits and future lost wages and benefits through retirement at age 62; that the Whistle-blower violation entitles him to twice the statutory damages; that statutory damages of $100 a day should be imposed for each day records are not produced and that the village should be compelled to produce them.
As for due process, Beauvais in the suit also stated that Ruidoso’s Personnel Policy does not contain a procedure to appeal an adverse employment decision or termination, and the suit contends the village did not have just cause to terminate Gavin under its policies and procedures.
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