Under threat of legal action by the city attorney, Octavio Garcia-Von Borstel, 28, was appointed Wednesday as the 38th mayor of Nogales and point man for one of the most divided councils in city history.
His grandfather may have been municipal president of Nogales, Sonora from 1970-73, but Garcia-Von Borstel was the one person on the Nogales City Council least interested in the mayoral seat left vacant by Ignacio J. Barraza who died 136 days ago.
Jockeying for the position hours after Barraza's death on Nov. 21, 2007, were Councilmen Nubar Hanessian, John Jackson and Arturo Garino.
An even power split among the six council members nixed the chances of any of them being successfully appointed to the position by their colleagues.
Garcia-Von Borstel was the least-seasoned politician on the council. However, he was able to broker a deal over the past several weeks with the help of former Mayor Marcelino Varona Jr.
"This is what the city has been asking," Garcia-Von Borstel told a group of reporters following a regular session of the council on Wednesday night. "I feel very fortunate to have been given this opportunity and I look forward to working with all of the councilmen."
He emphasized the word "all" and said his "priority is to unite the council and allow each one to vote their conscience and not be influenced by petty personal interests, but instead, by the overall interest of the community."
Despite the objections of City Attorney Jan Smith-Florez, in one fell swoop, the council named Garcia-Von Borstel as mayor, filled his seat on the council with Ramon Felix, and re-hired Jaime Fontes as city manager.
Smith-Florez said that the request filed with the city clerk for the item to be placed on the agenda was signed by Garcia-Von Borstel, Jackson, and councilmen Jose Padilla and Armando Lopez. She alleged that the four had met, comprising a quorum, which is illegal under Arizona open-meeting laws. The proof was that a request to place the appointments on the agenda was signed by all four men.
Smith-Florez said she "self-reported the council" to the Arizona Attorney General's office as well as the Santa Cruz County Attorney's office. She said the AG's office intended to launch an investigation and warned that if they proceeded with the vote successfully, she would "immediately seek a stay and file for a declaratory judgment in Superior Court" to nix the action.
At the request of Lopez, councilman Jackson, who chaired Wednesday's meeting, asked to hear the opinion of former City Attorney Lawrence Klose who was in the audience and is a one-time associate of Fontes in Klose's law firm.
He questioned Smith-Florez's authority to file in Superior Court on behalf of the City of Nogales without the council's approval. He said the four signatures on the request for the agenda item did not constitute a violation of the open-meeting law.
In an interview on Thursday morning, Smith-Florez cited Sections 95-98 of the City Charter that deal with the illegal payment of funds. This may be the case if the open-meeting law was violated to garner the vote for the appointments, she said. The provisions require the city attorney to seek legal action against the council in these cases.
Prior to the vote on the appointments on Wednesday, Smith-Florez warned Garcia-Von Borstel that his participation in the discussion and vote would constitute a conflict of interest, he recused himself from the proceedings. But not before he consulted privately with Varona and Klose.
The council then voted, 3-2, in favor of the appointments. Garino and Hanessian went on record voting against the measure to avoid being named in the legal action, which Smith-Florez confirmed Thursday morning she intended to file in Superior Court.
Coincidentally, the city council announced Thursday that it would meet for a special session today at 1:30 p.m. for "consideration and possible action regarding the employment status of the city attorney."
Felix received the second-highest number of votes during the November election in 2006.
Fontes, who served under the administration of Mayor Albert Kramer, left his position just prior to Barraza, Hanessian, Garino and Garcia-Von Borstel assuming their positions at city hall after the election.
Fontes has been criticized for poor management including the fostering of low employee moral, employee favoritism, excessive absences from city hall, and a disarray in the finance department.
Asked about these issues, councilman Lopez, who was critical of Fontes at the time, said. "We're going to have a little pep talk with him."
Varona, a self-appointed ombudsman or unelected seventh council member attends most meetings since his retirement from the Nogales public schools system. He regularly interjects his comments, questions and opinions and was a declared enemy of Fontes during the Kramer administration. Varona would refuse to say hello when he encountered Fontes in city hall. He campaigned for Barraza, Hanessian, Garino and Garcia-Von Borstel, criticizing Fontes, Kramer and Klose for "back-door" politics.
Collectively known as the "suits" for their manner of dress, Varona soon turned on the four men. He alleged, "They have become everything we fought against in the election," and that Barraza was skirting the City Charter provisions on the power of mayor by usurping the city manager's position and running the municipality himself. He joined a group called Citizens for Better Nogales Government to recall Barraza, Garcia-Von Borstel, Garino and Hanessian.
Varona said that if Garcia-Von Borstel's administration "starts wheeling and dealing behind closed doors and does not keep a transparent operation I'm going after them, too."
By being nominated as mayor, Garcia-Von Borstel effectively skirts the recall election process likely to take place in September during the regular primary elections, city officials said.