Kirkham: Wood succeeded in dividing us
December 22, 2009
Valencia County commissioners testified today during an emotional court hearing concerning the county’s attempt to permanently ban a citizen from commission meetings, the second day of legal arguments and testimony in the case.
The court sought to determine if the citizen, Mike Wood, should be allowed to continue attending county commission meetings or if the county’s ban on him should be upheld through the denial of an injunction against the county.
During the first day of the hearing last week, the 13th Judicial District Court heard testimony from two witnesses for the plaintiff, including Wood. The defense presented one witness.
District Court Judge George Eichwald today heard the cross-examination of Wood, as well as fresh testimony from three commissioners — a subpoenaed Ron Gentry, a teary-eyed Georgia Otero-Kirkham and a visibly shaken Pedro Rael. Fabian Padilla, a resident of Tome, also testified.
The Brown Law Firm, representing the county, continued to establish the history of Wood’s allegedly disruptive behavior, honing in on Wood’s specific behavior at meetings going back two years.
The county’s attorneys also concentrated questions on showing Wood had been advised of commission rules and expectations in terms of his behavior, with Wood having been advised repeatedly by various commissioners, including Rael, during those two years.
The defense played a number of audio recordings from commission meetings, including one at which Otero-Kirkham advised Wood of a couple of rules for addressing the commission and Gentry laid out more rules, telling Wood he should try not to be argumentative or aggressive.
“We are showing Wood has been advised of the rules,” intimated Kevin Brown, representing the county.
The defense showed not only how Wood behaved at commission meetings — speaking out of order and making what some refer to as “personal attacks” — but that he had also engaged in questionable actions outside of commission meetings, including while Rael, who’s an attorney, was in court representing a client, at Rael’s law office in Los Lunas and while Otero-Kirkham was hosting a private business meeting for realtors.
“My goal is to make people aware of what’s going on in these county commission meetings,” Wood explained.
Wood said he’s focused his most controversial criticisms of commissioners on issues that were “a matter of public concern.”
The three issues mentioned repeatedly during the hearing were an allegation by Wood that Otero-Kirkham used public funds to purchase a flight for her husband, an allegation that Rael has a conflict of interest in hospital decisions because his former law partner is the attorney for the plaintiffs in the hospital lawsuit, and whether or not people are denied access to the community center in Tome due to racial discrimination.
“Every one of those relates to one thing: the public’s money,” he said.
The plaintiff argued the issues were legitimate and not personal attacks. The defense said they were personal attacks and spotlighted language Wood used when speaking about them, such as calling one commissioner a “thief,” “liar,” and “racist.”
All the attorneys spent time arguing over whether or not Wood at one point went so far as to shout that Rael was “Adolf Hitler” as Wood was leaving a commission meeting. Wood denied saying it but both Rael and Otero-Kirkham testified he did say it.
Brown ended his cross-examination of Wood with a withering barrage of questions, laying out a history of what he referred to as Wood’s disruptive behavior.
He asked Wood about how Wood altered commission agendas without the county’s knowledge, how Wood handed out fliers, how Wood left meetings “loudly,” how Wood spoke up from the public gallery during meetings, and how Wood made “personal attacks.”
“I don’t make personal attacks. I state facts for people to hear,” Wood said.
Brown lectured Wood in questions about how Wood needed to follow the commission’s set time limit on public comments and how Wood needed to use a “proper tone of voice.”
“I have a voice that’s a little louder than others,” Wood said.
Rael breaks down under questioning
During his testimony, while discussing the Hitler remark, Rael choked up, momentarily stopping his testimony to compose himself with a cup of water.
“My job as an attorney is to protect people’s rights, not to kill them,” Rael said, his voice shaking, adding, “It was very unsettling to hear somebody say that.”
He said he depends on his reputation to get clients for his private practice, which he suggested has been harmed by what he said were Wood’s attacks on him.
“After a while you don’t know if people will start to believe that kind of crap,” he said.
Rael said he’s been the victim of a coordinated conspiracy by Wood and members of the Valencia County Action Committee, or VCAC, a pro-hospital citizens group, to attack him. Wood chaired the group.
That sparked a jab from American Civil Liberties Union (ACLU) attorney Phil Davis, who was representing Wood.
“Do you lock your door at night?” Davis asked Rael during his cross-examination.
Davis’s questioning of Rael was a climatic interplay between two experienced attorneys, with both Davis and Rael weaving through each other’s courtroom tactics.
Davis attempted to show Rael failed in his position as chairman to properly and fairly enforce commission rules and uphold the core tenets of the First Amendment.
“I’m not familiar with the fine points of the First Amendment,” Rael admitted.
Rael said he explained commission rules to Wood on at least 10 separate occasions. He ruled Wood out of order more than 20 times. He said Wood shouted from the public gallery at least half a dozen times.
He said Wood’s attacks gradually increased over a two-year period.
“He was showing a pattern of increased aggressiveness,” Rael said, adding, “He just continued to get more and more vicious. The attacks got more vile.”
After trying all other options to deal with the problem, including offering more than once to work with Wood on a solution, all that remained was a ban.
“I have done the best that I know how to conduct these meetings with decorum,” he said.
Otero-Kirkham cries as Wood speaks
Before taking the stand to testify, as Otero-Kirkham listened to testimony from Wood, the commissioner broke down into tears, lightly patting her cheeks with a tissue and eventually leaving the courtroom to get more tissue.
The intensity of the stress Otero-Kirkham has endured for months culminated to a breaking point as she faced him in court, having served as a commissioner under continuous and burdensome criticism from Wood both during and away from public meetings.
“He’s hurtful. He’s slanderous,” she said when she finally testified.
Otero-Kirkham called Wood “sarcastic, boisterous and intimidating.” She said he’s “hostile towards me.”
“We should take a certain amount of heat — a certain amount,” she said. “I don’t think we should take slanderous, vicious, venomous heat.”
Wood’s primary criticism of Otero-Kirkham involves his allegation that she improperly used county funds when purchasing a nearly $400 flight for her husband so she could travel alongside him to a commission-related conference.
She explained, as she’s said in the past, that she never made the purchase — it was made by the county manager’s office — and she paid the county back. Wood has said it took months to pay back the county and Otero-Kirkham only did so after auditors caught the purchase during a review of county expenses.
“I am literally sick to my stomach,” she said of how she feels when Wood makes accusations about her at commission meetings, where she sometimes has to leave the meetings to recover her composure, “It is so hard to for me to come back. It takes everything I have to come back and focus.”
She said she believes Wood has some good things to say and could be helpful in supporting the construction of a hospital in Valencia County. He, however, didn’t take a cooperative approach, she said.
“Mr. Wood has succeeded in dividing this community,” she said.
The plaintiff’s cross-examination of Otero-Kirkham did little but bolstered her earlier testimony, with an ACLU staff attorney, Brendan Egan, confused and repetitive in his questioning.
Two others testify
Gentry, who had to be subpoenaed by the plaintiff to testify, took the stand briefly during the hearing, offering the only testimony from a commissioner expressing concern about the legitimacy of the county’s ban on Wood.
His testimony mostly revolved around explaining how the commission has run its meeting during the five years he’s served on it, focusing on the purpose of the public comments item on every meeting agenda.
“It’s set up to hear an array of concerns or complaints from constituents,” he said.
He offered two pieces of information directly challenging the defense’s case that Wood was the problem.
First, he said in his 30 years of public service within various government bodies he’s never seen a citizen removed from a meeting until Rael became chairman of the Valencia County Commission.
Second, he reiterated, as he has at commission meetings, that he has concerns about how Rael banned Wood, saying he wasn’t sure the county had followed proper due process and had cautioned the county could be liable for it.
Joe Young, questioning Gentry for the defense, countered by showing Gentry is in the minority on the commission, highlighting that Rael polled commissioners during a commission meeting about whether or not Wood should be removed. At that meeting, Rael, Otero-Kirkham and Holliday agreed Wood should be removed; Gentry was generally opposed to the removal in his comments and Commissioner David Medina offered no opinion.
Padilla, the Tome resident, was put on the stand by the defense to support Rael’s claim that there was a conspiracy planned by VCAC to harm Rael.
Padilla, who attended a Los Chavez Community Association meeting where a VCAC member spoke, said VCAC was “on the fringes of what was moral and legal” in the tactics it used to attack Rael.
“I felt they had this man up against the ropes and they just needed a little bit more to push him over,” he said.
The judge rules against the ban
Upon conclusion of the attorneys’ closing arguments, Eichwald didn’t take but seconds to make his decision.
While the plaintiff asked Eichwald to uphold Wood’s First Amendment rights, the defense requested Eichwald deny Wood’s request for an injunction and order mediation during which Wood and the commissioners could lay out rules for Wood’s attendance of commission meetings.
Eichwald said Wood would be allowed to continue attending commission meetings, saying the county can’t deny him that.
He said he believed Wood would prevail on the merits of the case should the court be asked to consider more than the issuance of an injunction. Wood may suffer irreparable harm if not allowed to attend the meetings, he said.
Wood must refrain from personal attacks and disparaging comments, though he is allowed to make public comments, Eichwald said. Wood must not interrupt meetings from the public gallery.
He said the chairperson of the commission, who will be newly elected at the commission’s first meeting in January, will have the discretion to control behavior that violates the commission’s rules, which could include Wood’s removal from a meeting.
Eichwald rejected the defense’s request for mediation, but said either side could move forward with setting another hearing specifically on the merits of the case.
“A blind man can see what’s going on here,” Eichwald cautioned, without offering specifics, adding, “I see this county being polarized.”
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