BY PHILIP J. DABNEY, ESQ AND
PAUL F. GEISIK, ESQ.
Philip F. Dabney, P.C.
Attorneys for Prashant Jain and Sirphey, LLC
The purpose of this letter is to respond to Denise Derkacs’s October 15, 2024 letter to the editor. In light of Ms. Derkacs’s lack of candor regarding the Sirphey litigation, we are writing to set the record straight.
Ms. Derkacs implies she was not and is not involved in the Sirphey litigation. This is not true, and Ms. Derkacs was involved in the Sirphey appeal and she has been a member of the County Council for the duration of the Sirphey litigation. When the second round of appeals reached the County Council on March 22, 2022, Ms. Derkacs served as the Council’s chairman. She attempted to rubber-stamp the written decision of the Board of Appeals. Councilor David Reagor’s vote prevented that from happening. Ms. Derkacs idly sat by while the County’s attorneys racked up a cost of approximately $200,000—during which time the County and its attorneys were punitively sanctioned by the District Court for intentional acts done to drag out the case in court and cause the loss of the lease and harm to Sirphey. This punishment from the Court arose from the first year of litigation, during which the sole issue before the District Court was whether the Board of Appeals had to issue written findings explaining the reasons it decided what it did—a requirement the County has repeatedly resisted, despite their purported dedication to transparency. The County ultimately lost this phase of the appeal, and every other aspect of the appeal before the District Court, and are now appealing to the Court of Appeals, a decision which Ms. Derkacs has never decried or publicly opposed. It is important to note that this $200,000 figure does not appear to include the internal costs of the litigation to the County, nor does it appear to include the amount paid to the third-party attorney who advised the County Council during the March 22, 2022 hearing. Further, it does not include the more than $30,000 sanction imposed by the District Court.
“The crux of this case is the government’s duty to inform, and the citizen’s reciprocal right to know.” August 19, 2022 Order Granting Appellant’s Motion for Sanctions, ¶ 1, D-132-CV-2021-00002. The District Court noted that while the County’s attorneys were able to research and bring sophisticated and complex motions over the technical details of Sirphey’s appeal, they claimed not to know the definition of a simple term any lawyer would know. “However, once the technical grounds of Appellees’ motions were addressed and overcome, the Court had the opportunity to hear Appellees’ arguments as to why the government’s obligations and duties under Ordinance 10-84 and procedural due process had been fulfilled.” Id ¶ 18. “In hearing the argument, the Court went round and round with Appellees’ counsel regarding the definition of ‘findings.’” Id ¶ 19. “The Council had their attorney take the boldest of baseless positions regarding the interpretation of a word that is clear to any lawyer.” Id ¶ 28. “The government of Los Alamos County signed off on these baseless interpretations.” Id ¶ 29. Ms. Derkacs was very much a part of the government of Los Alamos County that signed off on the baseless positions advanced by the County and the technical motions designed to delay the County from ever having to explain itself. Ms. Derkacs had the option to speak out—as she now does to distance herself from the mishandled appeal—against the mishandling. She has never done so.
Ms. Derkacs contends the County was acting to protect life and safety. This too is not true. The District Court found that the County acted in many ways to deny due process under circumstances where a stop work order was not warranted. See March 12, 2024 Final Decision on Plaintiff Appellant’s Appeal, D-132-CV-2021-00002. It is important to understand that, prior to the Chief Building Official’s (CBO’s) non-specific demand for a permit in November 2019, the County had already issued a building permit for specific work to Sirphey, and Sirphey had passed periodic inspections at the time the Stop Work Order was placed. The CBO never made any such demand prior to November 2019, and the CBO did not act as though there was ever a safety concern. “No inspection of the premises was ever performed by the CBO prior to the placement of the Stop Work Order, in violation of his duty to perform such inspections.” Id ¶ 23. The Board of Appeals assisted the CBO in hiding the reasons for the Stop Work Order. “The Board of Appeals Chairman Terry Priestley prevented cross-examination into the specific reason why the Stop Work Order was issued and prohibited the Appellant from proceeding with any line of questioning relating to the specific reason why the Stop Work Order was issued.” Id ¶ 25. The District Court examined whether work requiring a permit was being conducted without a permit, and concluded that no permit was needed here. Id ¶ 100, 128. The Court noted in particular that the Board of Appeals relied on inherently unreliable evidence that had resulted from the County CBO’s misleading communications to a higher authority. Id ¶¶ 130-132. The CBO frequently contradicted himself, and even altered documents to support his Stop Work Order rather than ever explain why it was issued. Id ¶ 143. “The CBO has the ability to investigate. He has the ability to demand entrance, and to have answers to his questions. The CBO did not investigate, demand entrance, or seek answers to his questions.” Id ¶ 145. The CBO misled the County and others, and the District Court concluded that the Board of Appeals and the County Council—which Ms. Derkacs oversaw—acted arbitrarily and capriciously in upholding the Stop Work Order Id ¶ 146. They also violated Sirphey’s due process rights at every phase of the proceedings.
A former county councilor once referred to the appeal ordinance which Sirphey appealed underas being akin to the fox watching the hen house—even without the unfair distortions created for this case. This was on full display in this matter. First, the CBO issued a Stop Work Order that was general and vague, and is not specific enough to provide the notice required by due process to the Appellant as to the reasons for the Stop Work Order. Id ¶ 11. The County greatly delayed the proceedings, and did not even have an initial hearing for 91 days after Sirphey submitted its request for appeal. Id ¶ 31. It would be another 202 days before the appeal would be heard on the merits. Id ¶ 46. “There is no reason for a 202-day delay to have occurred in this case, and neither of the Appellees’ two justifications for it – the use of a form and COVID-19 – provide any justification for that delay.” Id ¶ 49. In addition to the delay, the proceedings themselves were not meaningful, and were carefully designed to ensure Sirphey could not succeed. Id ¶ 52. The animosity shown toward Sirphey by the County was obvious to the Court. “Appellant was deprived of any meaningful participation in creating the [Procedural and Scheduling Order]. Any time Appellant’s representatives attempted to request an opportunity to be heard or to provide input regarding the PSO, they were stopped immediately by Sara Scott, who was the Chair of the Board of Appeals at that time. It is evident that there is animosity by the Board Chair toward the Appellant.” Id ¶ 55. Safeguards that exist to protect Sirphey’s rights were intentionally removed without any notice to Sirphey. Id ¶ 79. The Board of Appeals and the County Council acted arbitrarily and capriciously in reaching their decision. Where Mr. Jain’s testimony could help his case, it was ignored, while other testimony—offered in the same breath—was used against Mr. Jain. Id ¶ 105. “The Board’s Order is not supported by substantial evidence. The Board, in its Order, contradicts the evidence presented to the Board during the Appeal.” Id ¶ 106. The Board of Appeals, and by extension the County Council led by Ms. Derkacs, violated Sirphey’s due process rights and ignored any evidence that their CBO had acted improperly.
The government cannot simply spout off pretextual reasons to cause so much harm to a citizen who simply was trying to open his business—a business whose absence has been felt in this community. The government cannot hide behind the pretextual explanation that the County must protect public safety where there was never any evidence that a safety issue existed in the first place, and instead all evidence pointed to misconduct by the CBO. This pretextual explanation offered by Ms. Derkacs flies in the face of nearly every ruling the District Court has issued in the Sirphey litigation. The Sirphey Stop Work Order and resulting litigation are not issues of safety, but of a concerted and sustained effort by the County—including Ms.Derkacs—to deprive a citizen of his due process rights, and prevent him from ever opening his business.
Attorneys for Prashant Jain and Sirphey, LLC