BY LINDA BENTLEY | AUGUST 13, 2014
Abujbarah’s motion for summary judgment tells a damning tale
Bonnett said these communications show intent and conduct in furtherance of the plan agreed upon outside a public meeting
CAVE CREEK – On Friday, Aug. 1, former Town Manager Usama Abujbarah (l) filed a motion for summary judgment and a separate statement of facts in support of that motion in his case against the town, the mayor and council, which tells a damning tale of Vice Mayor Adam Trenk’s orchestration of a plan, well in advance of being sworn in to office, to terminate Abujbarah.
Phone calls he secretly recorded and emails, especially to and from interim Town Manager Rodney Glassman, detail Trenk’s plan to oust Abujbarah and install his friend Glassman as temporary town manager, while garnering necessary support from his three council slate mates, Mike Durkin, Reg Monachino and Charles Spitzer to pull it off.
Prior to being sworn in to office, Trenk appeared at the May 28, 2013 council meeting requesting an item be placed on the June 3 agenda for the purpose of terminating Abujbarah.
However, because Abujbarah’s attorney was unavailable on June 3, a special meeting was noticed for June 10, with a single agenda item for “council discussion and possible action regarding the employment, assignment, compensation, benefits, promotion, demotion, dismissal, termination and/or resignation of the town manager.”
At the June 10 meeting, Trenk made a motion consisting of several items, including delivery of a notice to terminate Abujbarah as town manager; removal of all his duties, despite his termination date being effective Sept. 9; reassignment to an unidentified, offsite limited assignment, which never occurred; calling for a lump-sum severance amount to Abujbarah equal to five months base salary ($46,875) upon execution of a full release; calling for a special meeting two days later for the purpose of appointing Rodney Glassman interim town manager through an independent contractor agreement; overseeing the selection of an independent third party to conduct an audit of town funds; and beginning a selection process for a new, permanent town manager.
Trenk’s motion, which was seconded by Councilman Mike Durkin, passed by a vote of 4-3, with Trenk, Durkin, Monachino and Spitzer voting in favor and incumbents Mayor Vincent Francia and councilmen Ernie Bunch and Thomas McGuire dissenting.
Attorney Dan Bonnett, on behalf of Abujbarah, contends the motion was procedurally defective because: 1) it exceeded the subject matter contained in the notice and agenda for the special meeting; 2) it contained multiple unrelated parts that could not be properly voted on by council in a single motion; and 3) Trenk, Durkin, Monachino and Spitzer engaged in improper communications concerning the June 10 agenda item in violation of the Arizona Open Meetings Law (AOML), which he argues renders the passage of Trenk’s motion null and void.
Town code mandates all agenda items be clearly identified with specificity and made available along with any related materials for public inspection, and be distributed to each member of council, the mayor and town attorney at least seven calendar days prior to each town council meeting.
Town code goes on to state: “To fully effect the intent of this section, all information required for submittal of the action item to the town council shall be provided to the town clerk no less than seven days prior to the town council meeting at which the action item is to be considered.”
Trenk’s motion was prepared in advance with the intention it would be presented at the June 10 meeting and adopted as a resolution of the town.
It was not made public, distributed to council members or provided to the town clerk prior to the meeting and was only provided to the town clerk after the fact.
Durkin, Monachino and Spitzer claimed they never saw the motion prior to June 10, despite evidence that Trenk shared it with others.
Bonnett refreshed the court’s memory from oral arguments during their motion to dismiss, that defendants were under the impression in order to violate the AOML they must be physically present in the same room at the same time and discuss a matter on a noticed agenda.
However, Bonnett stated, “That is not the law in Arizona and with good reason.”
Bonnett said it could not be legitimately disputed that in late March or early April 2013 Trenk concocted his plan to remove Abujbarah and make his friend Rodney Glassman town manager. He said the two began working cooperatively to accomplish that goal in April.
In fact, communications back and forth between Trenk and Glassman confirmed, in furtherance of their conspiratorial efforts, Trenk arranged for Glassman to communicate with and meet with Durkin, Monachino and Spitzer through intermediaries, including Mike Chutz, Eileen Wright and others closely associated with these individuals to accomplish their goal.
Obviously, Trenk knew, in order for Glassman to become town manager, it was necessary to remove Abujbarah.
Glassman confirmed Trenk approached him about being town manager as early as April 2013.
And, while Trenk, Durkin, Monachino and Spitzer may claim replacing Abujbarah was in furtherance of some generalized campaign promise, Bonnett says that explanation is “unworthy of credence” because they each maintain that they did not make up their mind to remove Abujbarah as town manager until or just before the June 10 meeting.
So, while they all claimed, under oath, that they were “undecided” about being firmly committed to removing Abujbarah before June 10, Trenk was communicating with Glassman all along and encouraging him to act as the intermediary with the other three to discuss and move toward achieving his agenda of removing Abujbarah and replacing him with his friend, Glassman.
Trenk needed to make certain Spitzer, who was going to be in New York from June 4 through 16, participated in the June 10 meeting, knowing his vote was needed to achieve their objective.
On May 31, Trenk sent Spitzer an email offering his aunt’s residence, as well as one of his family’s two offices at the Wall Street Pier or 34th Street for Spitzer to appear telephonically.
Trenk wrote, “Let me know – we obviously NEED your vote.”
Although Spitzer initially planned to meet telephonically, he instead decided to fly back to Arizona on June 10 to participate in person and then flew back to New York on June 11.
On June 7, Trenk emailed Glassman, attaching the motion he sent to the town attorney for approval, and stated, “Once on the agenda for the 12th, I leave it to you to get Reg to nominate you.”
Glassman wrote back asking if Trenk was going to talk to Monachino first and wanted to know if he had four votes or if the three of them should “visit.”
Trenk responded, “He will have the votes – you should contact him, Charlie and Mike Durkin – lobby for yourself. You may even wait until Tuesday and reach out to the mayor and the other council people, nothing wrong with that.”
Glassman wrote back asking, “So is your point get my three other votes NOW? Should I reach out to Charlie and Mike even before you fire the manager?”
Trenk responded, “those two yes – no sense in waiting there – be sure to emphasize you are just the INTERIM town manager, and the importance of that position being filled by an outsider to get an accurate assessment of town operations. If you want full time permanent you will have six months to make the case, and you will be controlling the process so don’t even discuss that now. On Tuesday, you reach out to McGuire, Bunch and the mayor – saying merely, ‘I heard this job opened up, and would be interested’ and send them your resume with a cover letter about how f-ing awesome you would be at being the interim. Good?”
Glassman wrote back, “If you have your four I wonder if there is value in lobbying everyone. What we need is one champion with four votes. Too much process for this interim thing could only muddy it.”
On June 7, Trenk met with Francia for lunch at Houston’s in Scottsdale, where Trenk recorded their conversation without Francia’s knowledge.
During their conversation, Francia said Trenk’s plan to remove Abujbarah, whom he referred to as “the best of all town managers we’ve had,” didn’t feel right to him.
He said, “Morally, ethically, in terms of energy of the town, what I know will happen if that’s what transpires, it will plunge the community into a place neither you nor I want to go and, quite frankly, although I can write until my fingers bleed, I don’t think I’m going to be persuasive enough to stop what’s coming. And that is very destructive to you and to the town. When I look at that, I say, now how can this possibly be beneficial to the community? … You’re asking me to … what I think you’re asking me is to possibly join in something that is … has to do with his removal.”
Trenk responded, “His eventual removal … Given the choice between the status quo and removal on the spot … I’m choosing removal on the spot … I can’t do it without you. I cannot be a uniter without you. There is no unity if I’m the leader of a 4-3 vote. Especially on an issue as divisive as this.”
Trenk went on to tell Francia there were people in town who don’t like Francia and think he’s a weak leader that has been complicit in “letting Abujbarah run roughshod over the town.”
He told Francia, “This is your opportunity to change that perception, to stand together with me to make all parties here happy …”
The two apparently met the week prior as well, although Francia claimed while being deposed he had only met with Trenk that one time, as Trenk told Francia, “… when we met for lunch last week at this – I think it was actually this exact table – if you kept our conversation in confidence, I am happy about that. If you didn’t …”
Francia responded, “Not even my wife knows.”
On June 9, Trenk and Planning Commissioner Ray Fontaine met with Abujbarah, which Trenk also secretly recorded.
It was during that meeting Trenk told Abujbarah he needed to sever his relationship and communication with Don Sorchych, publisher and editor of Sonoran News.
Trenk threatened Abujbarah and said, “There can’t … this incestuous relationship between the local media and uh … the town hall is not good for the town … What does that mean? It could take on any number of forms but I’m gonna be perfectly blunt with you, it won’t satisfy my objectives for you to fill out your contract ‘til Aug. 14 with no change.”
Meanwhile, Glassman had already circulated a draft of an employment agreement he wanted to have approved by council once he was appointed interim town manager.
What Bonnett points out as “most telling” is Trenk’s June 7 email, in which he assured Glassman that Monachino had the four votes necessary to appoint him as interim town manager, since it was before Abujbarah had even been removed.
Bonnett said these communications show intent and conduct in furtherance of the plan agreed upon by Trenk, Durkin, Monachino and Spitzer outside a public meeting.
Bonnett is also representing Abujbarah in a federal claim against the town and Trenk for violation of his civil rights.