Varona ‘architect’ of shenanigans

Marcelino Varona Jr. was named in a federal lawsuit filed on Thursday as the “chief architect” of a “deal” involving nine current and former City of Nogales officials who allegedly conspired to fire Jan Smith-Florez as city attorney.

Varona was not named in an original $1 million claim for wrongful termination filed by Smith-Florez’s attorney Douglas H Clark Jr. last fall against the city that went unanswered.

By a vote of 3-2, Smith-Florez was fired at a public meeting on Wednesday, April 8, 2008. Then newly appointed Mayor Octavio Garcia-Von Borstel said he would “sustain” from voting and former councilmen John Jackson, Armando Lopez and Jose Padilla voted to fire Smith-Florez. All are named in the lawsuit filed by Clark in U.S. District Court in Tucson.

Councilmen Arturo Garino and Nubar Hanessian, who called the move a “witch hunt,” voted against the measure. They are not listed in the lawsuit.

At the meeting, Tucson lawyer Robert Kuhn, who was in the audience, said, "There's nothing (on the agenda) that warns the public that you're about to terminate the city attorney. This gives the impression that the decision has already been made. Then we're back to a violation of the Open Meeting Law."

Kuhn’s impression was correct, according to the lawsuit.

The Arizona Attorney General’s office subsequently found the mayor and council had violated the Open Meeting Law in several instances leading up to that meeting.

During the April 8 meeting, Garcia-Von Borstel said, "I am informed by my attorney �- the city attorney does have a conflict of interest and must step down.”

Smith-Florez objected, but she left the meeting room.

Several members of the audience then asked Garcia-Von Borstel who was advising him. Lawrence Klose, former city attorney, stood up and said he was representing Garcia-Von Borstel, Jackson, Lopez, and Padilla. He, too, is named in the lawsuit.

Also named is Jose Luis Machado, who was hired as interim city attorney a day after Smith-Florez was dismissed. Despite repeated statements to the press and at public meetings that he did not intend to stay in the position for long, he continues to hold on to the job, which pays $10,000 per month.

Smith-Florez’s firing and Machado’s appointment was merely part of the plan orchestrated by Varona, according to the suit.

At the end of March, four months after the death of Mayor Ignacio J. Barraza, 38, left an unfilled void on the council, Varona allegedly met with Garcia Von-Borstel, Padilla, Lopez and Jackson at War Memorial Park and at Varona’s home. The meeting was to hash out a plan to fill the mayoral seat with Garcia-Von Borstel.

The non-public meetings comprised a quorum of the council members and were illegal under Arizona Statutes (ARS 38-431), according to the suit.

Jackson, Lopez and Padilla subsequently signed a memo that included a suggested motion for a meeting on April 2 to promote Garcia-Von Borstel to mayor, appoint Jaime Fontes as city manager, and Ramon Felix to the council. A subsequent order was drafted to that effect by Klose.

Fontes and Felix, who is Lopez’s business partner, are also named in the lawsuit.

But it was Varona who was “the chief architect of the deal to place Garcia-Von Borstel, Fontes and Felix as proposed and to put Machado in as city attorney as soon as they could get Smith-Florez removed from that position,” the suit alleges.

“Varona had not wanted to include Fontes and Felix in the deal, but had to go along with it because it was the only way he could get Jackson, Padilla, Lopez and Garcia-Von Borstel to vote for the proposed appointments,” the suit said.

The proposal passed, 3- 2 with Hanessian and Garino voting against it and Garcia-Von Borstel stepping down for the vote.

Smith-Florez advised the council to no avail that their vote would be null due to the previous “illegal” meetings with Varona.

Smith-Florez then filed a restraining order on April 3 to prohibit Garcia-Von Borstel from becoming mayor; Fontes from becoming the city manager; and Felix replacing the council seat vacated by Garcia-Von Borstel. She said the appointments were decided upon in violation of the Open Meeting Law. The subsequent investigation by the AG’s office confirmed her allegations.

But the attorney general’s office did not go as far as nullifying the action and seemed content with a ratification of the vote at a subsequent meeting. Mild sanctions ordered by the AG were delayed by Machado and approved in the final days of Padilla’s, Lopez’s and Jackson’s tenure on the council.

Among the allegations in the suit, are that Padilla, Jackson and Lopez “intentionally, willfully and maliciously interfered with (her) employment �- in order to preserve the mayor, city manager, city attorney and city council composition that they had clandestinely orchestrated with defendants Varona, Garcia-Von Borstel, Felix, Fontes and Machado.”

As a result, Smith-Florez “suffered injuries, including loss of employment, benefits, salary, and injury to her reputation and character.”

She alleges violation of due process; violation of Arizona Employment Protection Act; violation of Arizona Whistleblower Statute; intentional interference with contract; conspiracy; aiding and abetting.

The suit seeks to recover attorney fees, costs, back pay, unspecified “general and special damages;” as well as full reinstatement to the job of city attorney.

Also named in the suit is City Clerk Leticia Robinson as well as the spouses of all named defendants.

The case has been assigned to Judge Frank R. Zapata.