SEC trustee outed for recordings

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Socorro Electric Cooperative board of trustee meetings are often colored with fireworks, and Wednesday’s meeting was no exception. Co-op attorney Lorna Wiggins dropped a bombshell by reporting that Trustee Charlie Wagner had privately been tape recording board meetings, including discussions that took place during executive sessions.

“Statements made in executive session are confidential,” Wiggins said. “The tapes were secretly made and with no one’s consent. That means the conduct was willful and intentional.”

Wiggins called Wagner’s actions a serious breach of a trustee’s fiduciary duty and the co-op’s code of ethics.

“In executive session trustees debate sensitive issues, including personnel issues and litigation — precisely what the Open Meetings Act protects against,” Wiggins said. “That is why litigation and litigation strategies are covered so that they may be discussed openly and frankly and board members do not have to be concerned about speaking in public view.”

What makes the recordings so concerning is that Wagner, a leader in the movement to reform the co-op, is involved in a lawsuit against Socorro Electric. He was initially listed as representative of the class of member-owners in a proposed class action lawsuit.

Wiggins said Wagner is considered an adversarial party to the co-op in the litigation and he should be excluded from executive session under the tenet of attorney-client privilege.

“What recourse do we have?” Trustee Leo Cordova asked the attorney.

Wiggins said the board doesn’t have the authority to remove Wagner as a trustee under the bylaws, but she recommended the board forego executive session if Wagner was to be a part of it.

Wagner, who has been excluded from executive sessions for the past several months because of his involvement in the lawsuit, said he would not sit in on the executive session. He asked for the opportunity to explain himself, but his request was not granted by Dave Wade, who was serving as chairman of the meeting.

“I’ve been accused by the attorney and lied about by others,” Wagner said. “Am I to understand after hearing these charges I am not being allowed to speak?”

That was the case, as the board voted to go into executive session to discuss current litigation.

The Explanation

Outside the board room during executive session, Wagner admitted he tape recorded approximately two dozen meetings, though executive sessions were held during only four or five of them, he said.

“They were done only during those meetings that had already violated the Open Meetings Act and were null and void,” he said. “In none of those meetings did they abide by OMA when they went into executive session.”

Wagner said he started tape recording meetings about the time members in April 2010 passed a new bylaw that required the co-op to follow open meetings rules, but the board refused to do it. He said he stopped recording meetings last year after a judge ordered the board to follow OMA and the board took action to remedy action it had taken over the previous 15 months.

Wagner said taping the meetings was justified because the meetings weren’t legal.

“When they went on (not following OMA), I decided to tape record the meetings, knowing they weren’t following OMA. I couldn’t follow OMA without them,” he said.

Asked if he was being hypocritical by advocating for open meeting laws and then violating one of its major rules, Wagner said, “How can one person follow OMA if the meeting wasn’t announced properly? They were already making the meetings null and void.”

Wagner said he started recording meetings under the advice of attorneys, but he declined to say how he went about taping them.

Ties with Torres Case

When the board returned from executive session, Wiggins announced that only litigation involving the members’ lawsuit against the co-op and a separate lawsuit brought by former Office Manager/Accountant Kathy Torres were discussed and no action was taken.

It was Torres’ lawsuit against Socorro electric, its president, Paul Bustamante, and Wagner that brought the tape recordings to light. Torres, who was fired in August 2010 amid an investigation into financial irregularities, previously charged Wagner with sex and racial discrimination and is seeking damages for loss of income and benefits, back-pay and front-pay, punitive damages and pre- and post-judgment interest.

Wiggins said four tape recordings Wagner made were inadvertently turned over by his attorneys to a lawyer representing Torres. When Wagner’s attorneys asked for them back, Torres’ lawyer refused, prompting Wagner’s attorney to file a motion for a protective order.

An examination of the case file shows the motion for protective order was filed March 5 by Wagner’s attorneys, Donna L. Chapman and David A. Gonzales of the Allen, Shepherd, Lewis, Syra & Chapman law firm of Albuquerque. It reveals that tapes from five board meetings in 2010 were inadvertently turned over to Torres’ attorney, J. Edward Hollington, also of Albuquerque, on Jan 12. Four of them included conservations that took place during executive session and one of them included a post-meeting conversation that took place between Wagner and his wife when Wagner forgot to turn off the recorder during their drive back to Magdalena.

Earlier this week, District Judge Karen L. Parsons of Carrizozo issued a stipulated order to vacate and reset a hearing that had been set for May 3.

One of the matters that has yet to be decided is a motion by Torres’ attorney for a change of venue out of the Seventh Judicial District Court in Socorro. The motion to change venue cites the probability that an unbiased jury could not be impaneled in Socorro because of the co-op’s “undue influence” over potential jurors and “public excitement” created by media attention.

 


-- Email the author at tslast@dchieftain.com.