Lujan v. City of Santa Fe (89 F. Supp. 3d 1109, 2015)

AMENDED MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the Petitioner Martin Lujan’s Appeal Brief, filed September 18, 2013 (Doc. 29)(“Appeal Brief’). The Court held a hearing on October 22, 2013. The primary issues are: (i) whether Administrative Hearing Officer Paula G. Maynes acted fraudulently, arbitrarily, or capriciously when she failed to recuse herself from PlaintifPPetitioner Martin Lujan’s post-termination administrative hearing, or disclose her prior representation of the Defendant/Respondent City of Santa Fe with City Attorney Mark Allen; (ii) whether Ms. Maynes’ decision that M. Lujan attempted to obtain City of Santa Fe funds under false pretenses by authorizing the payment of two submitted invoices is fraudulent, arbitrary, or capricious, and supported by substantial evidence; (in) whether Ms. Maynes’ decision that M. Lu-jan carelessly, negligently, or improperly used City of Santa Fe funds is fraudulent, arbitrary, capricious and supported by substantial evidence; (iv) whether Ms. Maynes’ decision that M. Lujan intentionally falsified or mishandled City of Santa Fe records is fraudulent, arbitrary, or capricious, and supported by substantial evidence; (v) whether Ms. Maynes’ decision that M. Lujan stole City of Santa Fe funds is fraudulent, arbitrary, or capricious, and supported by substantial evidence;' (vi) whether just cause existed for the City of Santa Fe to terminate M. Lujan’s employment; and (vii) whether Ms. Maynes’ decision was in accord with the law.

The Court will deny M. Lujan’s requests in the Appeal Brief in part and grant them in part. First, Ms. Maynes did not act fraudulently, arbitrarily, or capriciously when she failed to recuse herself from M. Lujan’s post-termination administrative hearing, or disclose her prior representation of the City of Santa Fe. Second, Ms. Maynes’ decision that M. Lujan attempted to obtain City of Santa Fe funds under false pretenses by authorizing payment of two submitted invoices is not fraudulent, arbitrary, or capricious, and substantial evidence supports the decision. Third, Ms. Maynes’ decision that M. Lujan carelessly, negligently, or improperly used City of Santa Fe funds is arbitrary and capricious and substantial evidence does not support the decision. Fourth, M. Lujan waived the issue whether Ms. Maynes decision that he intentionally falsified or mishandled City of Santa Fe records was fraudulent, arbitrary, and capricious, and substantial evidence did not support it; if M. Lujan did not waive the issue, however, the Court finds that Ms. Maynes’ decision that he intentionally falsified or mishandled City of Santa Fe funds was arbitrary and capricious and substantial evidence did not support it. Fifth, Ms. Maynes’ decision that M. Lujan stole City of Santa Fe funds is arbitrary and capricious, and substantial evidence does not support the decision. Sixth, just cause existed for M. Lujan’s termination from employment. Seventh, Ms. Maynes’ decision was in accord with the law. Consequently, the Court will grant M. Lujan’s request in the Appeal Brief regarding Ms. Maynes’ conclusions that M. Lujan stole City of Santa Fe funds and carelessly, negligently, or improperly used City of Santa Fe funds, but deny the requests in the Appeal Brief on the remainder of the issues, and leave Ms. Maynes’ determination that just cause existed for M. Lujan’s termination intact.

FACTUAL BACKGROUND

This case arises out of the City of Santa Fe’s termination of M. Lujan’s employment after he allegedly attempted to embezzle City of Santa Fe funds. The Court takes its facts from M. Lujan’s post-termination administrative hearing that Ms. Maynes conducted. See Reporter’s Transcript of Proceedings (Nov. 6, 2012), filed May 23, 2013 (Doc. 8-21); Reporter’s Transcript of Proceedings (Nov. 6, 2012); filed May 23, 2013 (Doc. 8-22); Reporter’s Transcript of Proceedings (Nov. 6, 2012), filed May 23, 2013 (Doc. 8-23)(collectively “Nov. 6, 2012, Hearing Tr.”); Reporter’s Transcript of Proceedings (Nov. 7, 2012), filed May 23, 2013 (Doc. 8-24); Reporter’s Transcript of Proceedings (Nov. 7, 2012), filed May 23, 2013 (Doc. 8-25); Reporter’s Transcript of Proceedings (Nov. 7, 2012), filed May 23, 2013 (Doc. 8-26); Reporter’s Transcript of Proceedings (Nov. 7, 2012), filed May 23, 2013 (Doc. 8-27)(collectively “Nov. 7, 2012, Hearing Tr.”); Reporter’s Transcript of Proceedings (Nov. 8, 2012), filed May 23, 2013 (Doc. 8-28); Reporter’s Transcript of Proceedings (Nov. 8, 2012), filed May 23, 2013 (Doc. 8-29); Reporter’s Transcript of Proceedings (Nov. 8, 2012), filed May 23, 2013 (Doc. 8-30); Reporter’s Transcript of Proceedings (Nov. 8, 2012), filed May 23, 2013 (Doc. 8-31)(collectively “Nov. 8, 2012, Hearing Tr.”); Reporter’s Transcript of Proceedings (Dec. 3, 2012), filed May 23, 2013 (Doc. 8-32); Reporter’s Transcript of Proceedings (Dec. 3, 2012), filed May 23, 2013 (Doe. 8-33); Reporter’s Transcript of Proceedings (Dec. 3, 2012), filed May 23, 2013 (Doc. 8-34)(collectively “Dec. 3, 2012, Hearing Tr.”).

1. M. Lujan’s Background with the City of Santa Fe.

M. Lujan was the Municipal Recreation Complex Administrative Manager from approximately January, 2010, until the City of Santa Fe terminated his employment on August 14, 2012. See Nov. 6, 2012, Hearing Tr. at 49:16-20 (Pino, Allen); Nov. 8, 2012, Hearing Tr. at 908:20-909:1 (M. Lu-jan, Thompkins). M. Lujan also held the position of Interim Division Director for the City of Santa Fe’s Recreation Division from October 9, 2010, through August 14, 2012. See Nov. 8, 2012,- Hearing Tr. at 908:20-909:1 (M. Lujan, Thompkins). In those capacities, M. Lujan was responsible for helping to create and to manage a multimillion-dollar budget. See Nov. 6, 2012, Hearing Tr. at 49:13-50:24 (Pino, Allen); Dec. 3, 2012, Hearing Tr. at 1029:4-10 (M. Lujan, Allen). M. Lujan was also responsible for reviewing the goods and services that the City of Santa Fe purchased, the quoted prices for those purchases, and the amount that the City of Santa Fe paid for those purchases. See Nov. 6, 2012, Hearing Tr. at 49:13-50:24 (Pino, Allen); id. at 69:25-70:3 (Pino, Allen); Dec. 3, 2012, Hearing Tr. at 1027:9-14 (M. Lujan, Allen). M. Lujan authorized the payments for most of the City of Santa Fe’s purchases by signing them. See Nov. 6, 2012, Hearing Tr. at 50:21-24 (Pino, Allen). M. Lujan worked for the City Santa Fe in recreation-related positions for eighteen years. See Nov. 8, 2012, Hearing Tr. at 909:5-8 (M. Lujan, Thomp-kins). During that time, M. Lujan was not demoted, written up, or disciplined in any way. See Nov. 8, 2012, Hearing Tr. at 910:18-21 (M. Lujan, Thompkins).

2. The Events Which Led to M. Lu-jan’s Termination.

The incident that led to M. Lujan’s termination involved the City of Santa Fe’s sponsorship of the Amateur Athletic Union’s 2012 Grand National Wrestling Tournament that took place in Santa Fe from June 6, 2012, to June 9, 2012. See Nov. 8, 2012, Hearing Tr. at 790:6-23 (L. Lujan, Thompkins). The Santa Fe Junior Wrestling Association (“SFJWA”) sponsored the tournament. See Nov. 8, 2012, Hearing Tr. at 771:1-773:25 (L. Lujan, Thomp-kins). M. Lujan’s older brother — Larry Lujan — is an SFJWA Board member and is the Director of the AAU Grand National Wrestling Tournament. See Nov. 8, 2012, Hearing Tr. at 741:9-21 (L. Lujan, Thomp-kins).

In 2011, the City of Santa Fe sponsored the Grand National Wrestling Tournament by providing in-kind service contributions and purchasing advertisements in the Tournament’s program. See Electronic-Mail Transmission from Martin Lujan to Robert P. Romero at 29 (Feb. 3, 2012), filed May 23, 2013 (Doc. 8-8)(“M. Lujan’s Feb. 3, 2012, E-mail”). At all relevant times, the City has a fraud-prevention policy, which states:

An employee should not be involved in the procurement of any goods or services for the City with a business in which a family member ... has a direct financial interest in (owner, partner, officer, director or board member). If the business is one which may be advantageous to the department or City to do business with, the procurement can be handled by the next level up in the chain of command or can be handled by the Purchasing Office. Procurement includes writing and evaluating bids, writing and evaluation of requests for proposals, the acquisition of quotes, and the entering or approval of subsequent purchase requisitions.

City Fraud Prevention Policy Rule 6.3.4, filed May 23, 2013 (Doc. 8-17)(“Anti-Fraud Policy”). Despite R. Romero’s knowledge of the Anti-Fraud Policy, and his knowledge of M. Lujan and L. Lujan’s familial relationship and their respective positions, R. Romero assigned the brothers to work together on the City of Santa Fe’s sponsorship of the 2011 and 2012 Grand National Tournaments. See Nov. 6, 2012, Hearing Tr. at 291:11-18 (Romero, Allen). R. Romero “did not think” about the Anti-Fraud policy when he tasked M. Lujan with evaluating the sponsorship requests that L. Lujan had submitted, and “didn’t expect there to be any fraud.” Nov. 6, 2012, Hearing Tr. at 291:11-292:2 (R. Romero, Allen).

L. Lujan had concerns about working with his brother on the sponsorship requests, because he and his brother “wanted the whole program to go without any problems” and “wanted to show transparency.” Nov. 8, 2012, Hearing Tr. at 867:21-23 (L. Lujan, Allen). L. Lujan did not want people looking at him and his brother, “and pointing fingers, saying that [L. Lujan] was a former city employee.” Nov. 8, 2012, Hearing Tr. at 867:23-868:1 (L. Lujan, Allen). L. Lujan brought the issue to R. Romero’s attention, because “Robert’s always preached transparency.” Nov. 8, 2012, Hearing Tr. at 868:1-3 (L. Lujan, Allen).

On January 16, 2012, L. Lujan sent an electronic-mail transmission to City Councilor Carmichael Dominguez seeking the City’s financial assistance in hosting the 2012 AAU Grand Nationals Tournament. See Electronic-Mail Transmission from Robert P. Romero to Martin Lujan at 26 (Jan. 24, 2012), filed May 23, 2013 (Doc. 8-8)(“Jan.24, 2012, E-mail”). Specifically, L. Lujan asked Dominguez for “$5000 and/or $11,000 which would allow all Santa Fe wrestlers to participate at no cost.” Letter from the SFJW Board to Councilor Carmichael Dominguez at 27-28 (Jan. 16, 2012), filed May 23, 2013 (Doc. 8-8)(“Jan. 16, 2012, Letter”). The Jan. 16, 2012, Letter did not ask the City of Santa Fe to purchase advertising. See Jan. 16, 2012, Letter at 26-27.

Dominguez forwarded the Jan. 16, 2012, Letter to R. Romero, asking if there were “[a]ny options.” Jan. 24, 2012, E-mail at 25. R. Romero, in turn, forwarded the request to M. Lujan and copied M. Lujan’s supervisor, City Public Works Director Isaac Pino. See Jan. 24, 2012, E-mail at 25. On February 3, 2012, R. Romero asked M. Lujan to: (i) evaluate what the City of Santa Fe had done regarding sponsoring the 2011 Grand Nationals Tournament; and (ii) determine what the City of Santa Fe could afford to do. for the 2012 tournament. See Electronic-Mail Transmission from Robert Romero to Martin Lujan at 29 (Feb. 3, 2012), filed May 23, 2013 (Doc. 8-8)(“R. Romero’s Feb. 3, 2012, E-mail”).

That same day, M. Lujan told R. Romero that the City of Santa Fe had supported the 2011 Grand Nationals Tournament by providing in-kind service contributions and purchasing advertisements in the tournament’s program. See M. Lujan’s Feb. 3, 2012, E-mail at 29. M. Lujan told R. Romero that he would follow up with L. Lujan and try to get specifics as to what SFJWA was seeking from the City for the 2012 tournament. See M. Lujan’s Feb. 3, 2012, Eat 29. On May 9, 2012, M. Lujan told R. Romero that SFJWA was asking “$950 for the back cover and $700 ... for inside front cover and inside back cover.” Electronic-Mail Transmission from Martin Lujan to Robert Romero (May 9, 2012) at 32, filed May 23, 2013 (Doc. 8-8)(“M. Lu-jan’s May 9, 2012, E-mail”). On May 14, 2012, M. Lujan said: “I think if we are able to swing the bid fee of 5K plus some advertising like you suggested, our amount will offer strong' support.” Electronic-Mail Transmission from Martin Lujan to Robert Romero (May 14, 2012) at 2, filed May 23, 2013 (Doc. 8-9)(“M. Lujan’s May 14, 2012, E-mail”). M. Lujan said that the advertising would bring the City of Santa Fe’s support amount “to slightly over 6K depending on ad costs.” M. Lujan’s May 14, 2012, E-mail at 2. M. Lujan further stated that the event should have a positive impact on the City of Santa Fe’s tax revenue, because the wrestlers and their families would spend approximately $500,000.00 during their stay in Santa Fe. See M. Lujan’s May 14, 2012, E-mail at 2. Based on these communications, R. Romero believed that the $5,000.00 hosting fee did not include any advertising. See Nov. 6, 2012, Hearing Tr. at 296:14-20 (M. Lu-jan, Allen).

R. Romero authorized the City of Santa Fe to give SFJWA $5,000.00 to cover the hosting fee, and $950.00 to purchase the back cover advertisement in the 2012 tournament program. See Nov. 6, 2012, Hearing Tr. at 299:16-20 (R. Romero, Allen). R. Romero therefore rounded the number up to $6,000.00. See Nov. 6, 2012, Hearing Tr. at 300:1-10 (R. Romero, Allen); Dec. 3, 2012, Hearing Tr. at 1075:1-3 (M. Lujan, Allen).

At May 28, 2012, meeting with his brother, M. Lujan wrote down on a napkin his understanding what the SFJWA was seeking from the City of Santa Fe for the 2012 tournament. See Proposal (undated) at 1, filed May 23, 2012 (Doc. 8-12)(“Proposal”). M. Lujan wrote, in pertinent part:

Host fee -5,000

Inside Cover -900

Inside back cover -750

$6,650

-330 Less 20% for both ad’s

6^20

6K

Proposal at 1. The Proposal indicates that M. Lujan and L. Lujan agreed that the City of Santa Fe’s $6,000.00 sponsorship would include two advertisements and the hosting fee. See Proposal at 1; Dec. 3, 2012, Hearing Tr. at 1107:9-14 (M. Lujan, Allen).

After R. Romero was presented with the proposal, he provided M. Lujan with a line-item source from where he could get the $6,000.00 in sponsorship funds. See Excel Spreadsheet (undated) at 9-11, filed May 23, 2013 (Doc. 8-13). Having received R. Romero’s approval, M. Lujan had L. Lujan sign the napkin confirming what the City of Santa Fe’s $6,000.00 sponsorship would cover. See Proposal at 1. The next day, May 29, 2012, M. Lujan’s administrative assistant — Jennifer Romero — sent an electronic-ihail transmission to R. Romero, which stated:

On behalf of Martin, Req. # 20132243 has been entered into the system for Santa Fe Jr. Wrestling, total: $6,000 for the AAU Wrestling Host Fees. Please review the req. on E-l to ensure that everything is correct.

Let me know if you would like for us to make any changes before we send forward for approvals.

Electronic-Mail Transmission from Jennifer Romero to Robert Romero (May 29, 2012) at 1, filed May 23, 2013 (Doc. 8-13). Thirty-one minutes later, R. Romero responded: “Looks good. Move forward.” Electronic-Mail Transmission from Robert Romero to Jennifer Romero (May 29, 2012) at 1, filed May 23, 2013 (Doc. 8-13).

On June 6, 2012, the City of Santa Fe issued a purchase order to the SFJWA for $6,000.00. See Purchase Order at 1 (June 6, 2012), filed May 23, 2013 (Doc. 8-9). After the tournament was held from June 6, 2012, to June 9, 2012, but before processing the $6,000.00 payment to the SFJWA, the City of Santa Fe discovered a string of electronic-mail transmissions between M. Lujan and L. Lujan. L. Lujan sent the first electronic-mail transmission on June 19, 2012. See Electronic-Mail Transmission from Larry Lujan to Martin Lujan (June 19, 2012) at 9, filed May 23, 2013 (Doc. 8-9)(“L. Lujan’s 1st June 19, 2012, e-mail”). It stated: “Martin, attached i[s] the Invoice for the 2012 AAU Grand Nationals.” L. Lujan’s 1st June 19, 2012, E-mail at 9. Attached to the electronic-mail transmission was an invoice to the City of Santa Fe — Recreation Division dated May 4, 2012, from the SFJWA for “6,320 for the 2012 AAU Grand National Wrestling Host Fee (Includes: Host Fee City logo on website, City Logo on Event program).” Invoice #2012-02 at 5 (May 4, 2012), filed May 23, 2013 (Doc. 8-9)(“$6,320 Invoice”)

M. Lujan responded, stating: “Yo ... this looks like the old invoice. The PO is for 6k.” Electronic-Mail Transmission from Martin Lujan to Larry Lujan at 8 (June 19, 2012), filed May 23, 2013 (Doc. 8-9)(“M. Lujan’s 1st June 19, 2012, E-mail”). L. Lujan replied: “Cost is the same in order to get u your full reimbursement.” Electronic-Mail Transmission from Larry Lujan to Martin Lujan at 8 (June 19, 2012), filed May 23, 2013 (Doc. 8-9)(“L. Lujan’s 2nd June 19, 2012, E-mail”). M. Lujan responded: “Lol ... I guess you forgot what was agreed and what you signed, when we meet [sic] in the restaurant. Can’t submit for payment without invoice ... last day friday for this FY.” Electronic-Mail Transmission from Martin Lujan to Larry Lujan (June 19, 2012) at 8, filed May 23, 2013 (Doc. 8-9)(“M. Lujan’s 2nd June 19, 2012, E-mail”)(ellipses in original).

L. Lujan replied:

Here is the break down in case you forgot:

Ncaa ticket- $450

Room[é703- $350

Car rental 185- $92.50

your airline- $450

total- ' $1342.50

I’m still paying my credit card on your and Robert and Carmichael LV trip. If I have to I can may be eat car rental but that all I can do. unless we make up difference with Clarissa paying difference? let me know and I will chg invoice.

Electronic-Mail Transmission from Larry Lujan to Martin Lujan at 8 (June 19, 2012), filed May 23, 2013 (Doc. 8-9)(“L. Lujan’s 3rd June 19, 2012, E-mail”). M. Lujan responded: “Your [sic] funny ... we sat down and agreed. You signed it. I will show it to you if you need to see it. Not sure why your [sic] forgetting ... i am not marcos, kathy, bennet or roses family. I will wait for corrected invoice to pay.” Electronic-Mail Transmission from Martin Lujan to Larry Lujan (June 19, 2012) at 7, filed May 23, 2013 (Doc. 8-9)(“M. Lujan’s 3rd June 19, 2012, Email”)(ellipses in original). L. Lujan replied: “U hope your [sic] just kidding, I will correct invoice so we can get paid. But we have to talk about the Back cover page unless u can show me where that was in the deal.” Electronic-Mail Transmission from Martin Lujan to Larry Lujan (June 20, 2012) at 7, filed May 23, 2013 (Doc. 8-9).

M. Lujan responded:

Always ...! We went from the 5k to 6k to cover the $450. reimbursement on ticket ... Back cover was not included but you did mention that if we purchased it would cover air to Florida: Doesn’t look like that is happening soo I guess its not an issue. Just notice invoice came through....

Electronic-Mail Transmission from Martin Lujan to Larry Lujan at 8 (June 20, 2012), filed May 23, 2013 (Doc. 8-9)(“M. Lujan’s 1st June 20, 2012, E-mail”). L. Lujan replied: “I think back cover is an issue, I was going to add your FL ticket to cover your expense NOT just your ticket but the cost of AD. Lets meet and discuss this issue, we gave up this to AD space to help you out not lose money.” Electronic-Mail Transmission from Larry Lujan to Martin Lujan at 7 (June 20, 2012), filed May 23, 2013 (Doc. 8-9)(“L. Lujan’s 1st June 20, 2012, E-mail”).

On June 20, 2012, L. Lujan sent an electronic-mail transmission to his brother with two SFJWA invoices attached. See Electronic-Mail Transmission from Larry Lujan to Martin Lujan at 14 (June 20, 2012), filed May 23, 2013 (Doc. 8-9)(“L. Lujan’s 2nd June 20, 2012, E-mail”). The electronic-mail transmission stated: “Attached are the two invoices on host fees for $6000 the other for Back Cover of the program for $750.” L. Lujan’s 2nd June 20, 2012, E-mail at 14. The first invoice, dated May 4, 2012, was to the City of Santa Fe-Recreation Division in the amount of $6,000 for “2012 AAU Grand National Wrestling Host Fee (Includes: Host Fee, City logo on Website, City Logo on Event program).” Invoice #2012-02 at 15 (May 4, 2012), filed May 23, 2013 (Doc. 8-9)(“$6,000 Invoice”). The second invoice, dated June 1, 2012, was also to the City of Santa Fe — Recreation Division in the amount of $750.00 for “2012 AAU Grand National Wrestling Host Fee (Includes: Back cover page of Event program).” Invoice # 2012-03 (June 1, 2012) at 16, filed May 23, 2013 (Doc. 8-9)(“$750.00 Invoice”).

M. Lujan testified that he did not read the body of L. Lujan’s 2nd June 20, 2012, E-mail and could not open the file containing the $750.00 Invoice. See Dec. 3, 2012, Hearing Tr. at 1072:20-1073:14 (M. Lujan, Allen). Yet M. Lujan still forwarded both SFJWA invoices to J. Romero for processing and payment. See Electronic-Mail Transmission from Martin Lujan to Jennifer Romero at 14 (June 20, 2012), filed May 23, 2013 (Doc. 8-9)(“M. Lujan’s 2nd June 20, 2012, E-mail”). M. Lujan testified that he saw L. Lujan’s June 2nd 20, 2012, E-mail come inj but he “didn’t even give it a second thought” and “forwarded it immediately over.” Dec. 3, 2012, Hearing Tr. at 1073:12-14 (M. Lujan, Allen).

J. Romero then forwarded the $750.00 Invoice to-Clarissa Lovato, owner of Elevate Media, stating: “Invoice for ad placement sfjr. wrestling.” Electronic-Mail Transmission from Jennifer Romero to Clarissa Lovato at 14 (June 20, 2012), filed May 23, 2013 (Doc. 8-9)(“J. Romero’s June 20, 2012, E-mail”). Under a Professional Services Agreement with the City of Santa Fe, Elevate Media places advertisements to market the City of Santa Fe’s recreational enterprises, in particular, the Marty Sanchez Links de Santa Fe Golf Course. See City of Santa Fe Professional Services Agreement at 10-21, filed May 23, 2013 (Doc. 8-15)(“Elevate PSA”). The City of Santa Fe reimburses Elevate Media for these expenses. See Elevate PSA at 13. Elevate Media is required to secure approval from M. Lujan before placing any advertisements on the City of Santa Fe’s behalf. See Elevate PSA at 13. The Lu-jan brothers worked closely with Lovato for years. See Nov. 7, 2012, Hearing Tr. at 562:7-563:5 (Lovato, Allen). At some point on Friday, June 29, 2012, Lovato sent to M. Lujan for approval by facsimile transmission a $750.00 invoice from Elevate Media for an advertisement in the 2012 Grand Nationals Tournament program. See Nov. 7, 2012, Hearing Tr. at 559:5-8 (Lovato, Thompkins).

That same day, at 4:38 p.m., M. Lujan received an electronic-mail transmission from Rodarte, which states:

After reviewing the Purchase Orders issued for the month of June, I noticed that the PO listed above for Santa Fe Junior Wrestling was missing a contract. Somehow this one got past me during the approval process. In order to comply with the Procurement rules, I will need for you to create a PSA [Professional Services Agreement] related to the services provided by this organization. Based on the history between the City and the SFJW group you have always created a. PO for $5000. This year the total amount was for $6K which is above the threshold of 5K therefore requiring a PSA. Breakdown the amount of money expended for each service. The invoice submitted to Payables has no documentation as to what the City is paying for. Have the vendor give you breakdown. I have placed a hold on the check until the issue is resolved.

Electronic-Mail Transmission from Robert Rodarte to Martin Lujan and Jennifer Romero (June 29, 2012), filed May 23, 2013 (Doc. 8-9)(“Rodarte’s June 29, 2012, Email”). See Nov. 6, 2012, Hearing Tr. at 72:15-20 (Allen, Pino); Dec. 3, 2012, Hearing Tr. at 976:5-14 (Allen, M. Lujan). Two minutes later, M. Lujan forwarded Rodarte’s June 29, 2012, E-mail to City Councilor Dominguez, with the following message: “Check this bullshit out!!!” Electronic-Mail Transmission from Martin Lujan to Carmichael Dominguez (June 29, 2012), filed May 23, 2013 (Doe. 8-9).

As Rodarte requested, J. Romero prepared the first draft of the PSA, itemizing the services that the City was to receive as follows:

(1) Host Sponsorship Fee

(2) 2012 Grand Nationals Tournament Program

(a) Recreation Division Ad

(b) City Back Cover Ad

(3) Online

(a) City Logo on website

City of Santa Fe Professional Services Agreement at 6-7, filed May 23, 2013 (Doc. 8-10). The version of the PSA that J. Romero ultimately submitted no longer had a detailed itemization of services, but instead stated: “Host Sponsorship Fee[.] Santa Fe is the Host City for the 2012 AAU Grand Nationals. The sponsorship fee shall be used to sponsor local youth participation in the sport of wrestling, in return, the City shall receive exposure via the Contractors website and event program.” City of Santa Fe Professional Services Agreement at 19, filed May 23, 2013 (Doc. 8-10).

The following Monday — July 2, 2012 — at 7:17 a.m., M. Lujan sent an electronic-mail transmission to J. Romero, stating: “Good Morning Jenn ... lets hold on Clarissa june invoice until I get to office. Hope it’s not too late. See you in a bit.” Electronic-Mail Transmission from Martin Lujan to Jennifer Romero at 27 (July 2, 2012), filed May 23, 2013 (Doc. 8-9)(“M. Lujan’s July 2, 2012, E-mail”). One minute later, at 7:18 a.m., Lovato sent an electronic-mail transmission to J. Romero concerning Elevate Media’s $750.00 invoice, in which Lo-vato stated: “Just realized that the invoice I faxed on Friday is not correct. Call me with questions.” Electronic-Mail Transmission from Clarissa Lovato to Jennifer Romero at 27 (July 2, 2012), filed May 23, 2013 (Doc. 8-9)(“Lovato’s July 2, 2012, Email”).

Having become aware of the electronic-. mail transmissions between M. Lujan and L. Lujan, between M. Lujan and J. Romero, and between J. Romero and Lovato, on July 11, 2012, R. Romero asked J. Romero for a copy of Elevate Media’s $750.00 invoice. See Nov. 7, 2012, Hearing Tr. at 372:13-373:6 (R. Romero, Allen). J. Romero told R. Romero that she had deleted the invoice and that it was gone. See Nov. 7, 2012, Hearing Tr. at 372:16-373:1 (R. Romero, Allen). R. Romero then asked J. Romero to call Lovato to see if Lovato had a copy of the $750.00 invoice. See Nov. 7, 2012, Hearing Tr. at 373:7-373:12 (R. Romero, Allen). Lovato said that she did not have a copy, and that she had lost it or thrown it away. See Nov. 7, 2012, Hearing Tr. at 373:13-373:15 (R. Romero, Allen); id. at 374:20-23 (R. Romero, Allen). R. Romero asked Lovato what the mistake was in the $750.00 invoice, and Lovato responded that it was a spelling error. See Nov. 7, 2012, Hearing Tr. at 374:15-17 (R. Romero, Allen).

The final invoice that Elevate Media submitted did not include a $750.00 charge for the SF JW advertisement. At the post-termination hearing, Lovato maintained that she rescinded Elevate Media’s $750.00 invoice, because of a spelling error. See Nov. 7, 2012, Hearing Tr. at 563:15-23 (Allen, Lovato). Upon further questioning, however, she admitted that the invoice that she resubmitted to the City of Santa Fe still had spelling errors. See Nov. 7, 2012, Hearing Tr. at 563:24-567:31 (Allen, Lovato). Lovato also acknowledged that many other invoices which Elevate Media submitted to the City of Santa Fe in the past had spelling errors. See Nov. 7, 2012, Hearing Tr. at 583:25-584:7 (Allen, Lova-to).

3. M. Lujan’s Other Acts of Misconduct.

In a March 23, 2011, electronic-mail transmission to R. Romero, M. Lujan said that he would obtain advertising for the City of Sana Fe in the 2011 Grand Nationals Tournament program if the City agreed to waive fifty percent of the rental cost for the convention center where the tournament would be held. See Purchase Order at 1 (July 11, 2011), filed May 23, 2013 (Doc. 8-14). While preparing for the post-termination hearing, it was discovered that Elevate Media had submitted a $500.00 invoice to the City of Santa Fe for a full-page color advertisement in the 2011 Grand Nationals Tournament program. See Untitled Invoice at 2, filed May 23, 2013 (Doc. 8-14). The City of Santa Fe also discovered that Wolfman Brothers— another media firm that L. Lujan’s brother-in-law and sister-in-law owned — submitted an invoice to the City of Santa Fe for $750.00, purportedly for a full-page advertisement in the 2011 Grand Nationals Tournament program. See Purchase Order at 30 (June 7, 2011), filed May 23, 2013 (Doc. 8-13); Invoice from Wolfman Brothers to the City of Santa Fe Recreation Division for AAU Grand Nationals — Full Page Ad in Tournament Program (June 21, 2011) at 31, filed May 23, 2013 (Doc. 8-13); Check from the City of Santa Fe to Wolfman Brothers for $750.00 (June 29, 2011), filed May 23, 2013 (Doc. 8-13). At the post-termination hearing, however, L. Lujan’s brother-in-law — John Romero— testified that the work that the Wolfman Brothers did for the 2011 Grand Nationals Tournament was donated. See Nov. 7, 2012, Hearing Tr. at 629:5-630:12 (J. Romero, Thompkins). Although the City of Santa Fe paid both invoices, neither should have been submitted for payment, because R. Romero did not authorize payment for any advertisements in the 2011 Grant Nationals Tournament program. See Nov. 7, 2012, Hearing Tr. at 333:10-334:7 (R. Romero, Allen).

Having discovered that Elevate Media charged the City $500.00 for the advertisement in the 2011 Grand Nationals Tournament program, the City of Santa Fe asked Lovato for the invoice that the SFJWA sent to Elevate Media for that advertisement. See Nov. 7, 2012, Hearing Tr. at' 333:10-334:7 (R. Romero, Allen). Lovato admitted that the invoice did not exist, because the SFJWA never billed Elevate Media for any advertisements for the 2011 Grand Nationals Tournament. See Nov. 7, 2012, Hearing Tr. at 333:10-334:7 (R. Romero, Allen). Lovato then wrote a $500.00 check to reimburse the City of Santa Fe. See Nov. 7, 2012, Hearing Tr. at 333:10-334:7 (R. Romero, Allen).

The City of Santa Fe also discovered that, in 2011 and 2012, M. Lujan had used Elevate Media to make a $600 contribution to Santo De Nino Regional Catholic School. See Dec. 3, 2012, Hearing Tr. at 1056:16-23 (Allen, M. Lujan); id. at 1058:3-13 (Allen, M. Lujan); id. at 1060:15-1061:1 (Allen, M. Lujan). Elevate Media, in turn, billed the City for the amount of the contribution. See Dec. 3, 2012, Hearing Tr. at 1056:16-23 (Allen, M. Lujan); id. at 1058:3-13 (Allen, M. Lujan); id. at 1060:15-1061:1 (Allen, M. Lujan). The City of Santa Fe also learned that M. Lujan’s son attended Santo De Nino Regional Catholic School, and that the school required each student’s family to annually donate or fundraise a minimum of $400.00 for the school. See Dec. 3, 2012, Hearing Tr. at 1054:18-1055:11 (Allen, M. Lujan). On June 7, 2012, the school sent a thank you letter to “Elevate Media/Martin Lu-jan.” Letter from Lisa S. Vakharia, Director of Advancement, Santo Nino Regional Catholic School to Martin Lujan and Elevate Media at 22 (June 7, 2012), filed May 23, 2013 (Doc. 8-16). The City of Santa Fe also discovered that, in October, 2008, L. Lujan — who then held the position of Municipal Recreation Committee Administrative Manager — approved an invoice that Lovato — who was not a municipal employee — submitted to the City of Santa Fe for a conference that she had attended. See Nov. 8, 2012, Hearing Tr. at 828:18-830:8 (L. Lujan, Thompkins).

The City of Santa Fe uncovered that, in a June 2012 invoice from Elevate Media, there was a charge in the amount of $1,800.00 for “social media maintenance and staff training” for Marty Chavez Links de'Santa Fe staff. Invoice from Elevate Media to Marty Sanchez Links de Santa Fe (June 27, 2012) at 30, filed May 23, 2013 (Doc. 8-14). During the post-termination hearing, however, Lovato testified that the charge was for expenses that would be incurred in the future. See Nov. 7, 2012, Hearing Tr. at 601:1-19 (Lovato, Allen). Lovato admitted that there was nothing in the invoice which would let an auditor know that the City of Santa Fe was paying for services that would be provided in the future. See Nov. 7, 2012, Hearing Tr. at 605:5-9 (Lovato, Allen).

4. The Disciplinary Proceedings.

After reviewing the electronic-mail transmissions between M. Lujan and L. Lujan, Romero concluded that M. Lujan was trying to steal money from the City of Santa Fe. See Nov. 7, 2012, Hearing Tr. at 343:14-25 (Allen, R. Romero). R. Romero and Pino met with M. Lujan on July 5, 2012, to discuss the string of electronic-mail transmissions between M. Lujan and his brother and get M. Lujan’s side of the story. See Nov. 7, 2012, Hearing Tr. at 344:1-345:13 (Allen, R. Romero). Because of their personal friendship, R. Romero had decided that he was going to give M. Lujan an opportunity to resign if he did not have a reasonable explanation for the electronic-mail transmissions between him and his brother. See Nov. 7, 2012, Hearing Tr. at 344:1-345:13 (Allen, R. Romero). When he saw the electronic-mail transmissions, M. Lujan got nervous, kept saying “I don’t understand,” and could not offer an explanation for them. Nov. 7, 2012, Hearing Tr. at 345:14-25 (Allen, R. Romero). M. Lujan asked R. Romero to give him until the end of the next day — Friday, July 6, 2012 — to decide whether to resign and also said that he was going to look through the electronic-mail transmissions between him and his brother. See Nov. 7, 2012, Hearing Tr. at 346:1-20 (Allen, R. Romero). The next day, M. Lujan asked R. Romero if he could have until Monday, July 9, 2012, to decide whether to resign. See Nov. 7, 2012, Hearing Tr. at 347:3-7 (Allen, R. Romero).

On Monday, July 9, 2012, R. Romero and Interim Human Resources Director Vicki Gage met with M. Lujan. See Nov. 7, 2012, Hearing Tr. at 347:3-7 (Allen, R. Romero). At the meeting, M. Lujan said that the electronic-mail transmissions were his brother’s fault, that his brother was trying to get more money out of the City of Santa Fe, and that his brother was relentless. See Nov. 6, 2012,' Hearing Tr. at 231:12-19 (Allen, Gage). M. Lujan said that he sent his brother an electronic-mail transmission telling him to stop. See Nov. 6, 2012, Hearing Tr. at 231:20-24 (Allen, Gage). M. Lujan then handed R. Romero what M. Lujan said was an electronic-mail transmission dated June 21, 2012, which states:

Whats this email now? Dude enough already ... larry what were all the emails about the other night/morning ... one to many wines. Lol. as I mentioned to you when we talked if you have issue with Robert or Carmike take it up with them. I owe you nada and expect nada! When you mentioned Robert owing for vegas ho’s ... I know nothing. You were lucky to get 6k from RR. It’s done and were only paying the 6k for everything ... Bid and ads! I will keep you posted when I hear something ... so stop w the emails!

Nov. 6, 2012, Hearing Tr. at 232:19-233:7 (Allen, Gage)(alterations in electronic-mail transmission)(internal quotation marks omitted). When R. Romero read this electronic-mail transmission, he believed that M. Lujan was trying to scare him into not taking disciplinary action by making the “Vegas ho’s” comment. Nov. 7, 2012, Hearing Tr. at 352:3-11 (R. Romero, Allen). R. Romero told M. Lujan that he thought the electronic-mail transmission was doctored and asked M. Lujan to bring in the computer on which he had written the transmission. See Nov. 7, 2012, Hearing Tr. at 368:22-369:7 (R. Romero, Allen). M. Lujan responded that he could not do so, because he wrote the transmission on > his wife’s work computer. See Nov. 7, 2012, Hearing Tr: at 369:9-10 (R. Romero, Allen). R. Romero asked if M. Lujan could bring in L. Lujan’s computer so that R. Romero could retrieve the transmission. See Nov. 7, 2012, Hearing Tr. at 369:11-12 (R. Romero, Allen). M. Lujan said: “I’ll try, but you know Larry.” Nov. 7, 2012, Hearing Tr. at 369:14 (R. Romero, Allen). M. Lujan never brought his brother’s computer to R. Romero. See Nov. 7, 2012, Hearing Tr. at 369:14-17 (R. Romero, Allen).

The meeting ended with R. Romero telling M. Lujan that he was still on administrative leave and that they would meet again on Wednesday, July 11, 2012. See Nov. 6, 2012, Hearing Tr. at 234:22-25 (Gage, Allen). After the meeting ended, R. Romero and Gage began examining the electronic-mail transmission that M. Lujan had provided them. See Nov. 6, 2012, Hearing Tr. at 235:2-3 (Gage, Allen). After running experiments on their own Yahoo electronic-mail accounts, they came to the conclusion that the electronic-mail transmission that M. Lujan had provided was fake. See Nov. 6, 2012, Hearing Tr. at 235:4-239:25 (Gage, Allen).

M. Lujan' received a Notice of Contemplated Action on July 13, 2012. See Notice of Contemplated Action (July 13, 2012) at 1-4, filed May 23, 2013 (Doc. 8-ll)(“Notice of Contemplated Action”): The Notice of Contemplated Action stated:

It has been discovered that Larry Lu-jan, the AAU Grand National Tournament Director and the Santa Fe Junior Wrestling Treasurer, and you conspired to defraud the City of Santa Fe of at least $900. Specifically, you conspired to include the cost of a personal airline ticket for $450 and an NCAA ticket.for $450 in invoices to be paid by the City of Santa Fe for hosting the 2012 AAU Grand National Wrestling tournament on June 6 to June 9, 2012.

Notice of Contemplated Action at 1.

A pre-determination hearing took place on July 23, 2012, at which M. Lujan was present and represented by counsel. See Minutes of Pre-determination Meeting of July 23, 2012, filed May 23, 2013 (Doc. 8-ll)(“Minutes”). During the pre-determi-nation meeting, M. Lujan’s attorney said that the City of Santa Fe’s agreement with L. Lujan was for two advertisements in the amount of $1,650.00 with a twenty-percent discount, which was still higher than the $1,000.00 that the City allocated. See Minutes at 13. M. Lujan’s attorney further stated that M. Lujan negotiated with L. Lujan to get the back-cover advertisement for free. See Minutes at 13. M. Lujan said that he felt uncomfortable being involved in the requisition process with his brother, so he had J. Romero prepare the requisition. See Minutes at 14. On July 30, 2012, M. Lujan received the Notice of Proposed Disciplinary Action-Termination of Employment, in which Pino recommended that M. Lujan be terminated “based on [his] attempt to steal taxpayer funds from the City.” Notice of Proposed Disciplinary Action — Termination of Employment (July 30, 2012), filed May 23, 2013 (Doc. 8-12). On August 7, 2012, M. Lujan received the Notice of Final Decision from R. Romero, which terminated his employment on August 14, 2012. See Notice of Final Decision (August 7, 2012), filed May 23, 2013 (Doc. 8-13).

There were a number of flaws in the City of Santa Fe’s investigation into M. Lujan’s alleged misconduct. Gage never asked L.' Lujan what he meant by the itemized expenses in the electronic-mail transmissions between him and his brother. See Nov. 6, 2012, Hearing Tr. at 250:16-24 (Gage, Thompkins). Gage also never spoke to anyone at the SFJWA or the AAU Grand Nationals Tournament to determine what L. Lujan meant in his electronic-mail transmissions. See Nov. 6, 2012, Hearing Tr. at 250:25-251:7 (Gage, Thompkins). Pino’s investigation consisted only of reviewing the electronic-mail transmissions between M. Lujan and his brother. See Nov. 6, 2012, Hearing Tr. at 108:12-18 (Pino, Thompkins). Pino did not talk to L. Lujan, J. Romero, or Lovato during his investigation. See Nov. 6, 2012, Hearing Tr. at 108:16-24 (Pino, Thomp-kins).

On August 13, 2012, M. Lujan appealed his termination to an outside hearing officer. See Appeal at 3. A public hearing was held before Ms. Maynes on November 6, 2012, November 7, 2012, November 8, 2012, and December 3, 2012. See Decision at 3. Ms. Maynes issued her decision in' March, 2013. See Decision at 1. Ms. Maynes made the following Findings of Fact in her decision:

1. Martin G. Lujan was an 18 year employee of the City of Santa Fe in permanent full-time classified status. In 2012, he held the position of Interim Recreation Division' Director and Administrative Director of' the Municipal Recreation Center.

2. There is no prior instance (occurring before 2012) of substantial discipline in Martin Lujan’s personnel record at the City.

3. In a letter dated January 16, 2012, from Larry Lujan, Treasurer of the SFJWA, to Councilor Carmichael Dominguez, the SFJWA requested the City pay the Five Thousand Dollar ($5,000) bid/host fee to the National AAU Organization for the purpose of hosting the 2012 AAU Grant Nationals Wrestling Tournament on June 6 to 9, 2012.

4. In Larry Lujan’s letter, SFJWA solicited one of two sponsorship options: “a financial contribution of a bid fee of $5,000 and/or $11,000 which would allow all Santa Fe Wrestlers to participate at no cost....”

5. Larry Lujan, the author of the letter seeking support, is Martin Lu-jan’s brother and held the position of Recreation División- Director before Martin Lujan until Larry’s retirement.

6. Larry Lujan is the treasurer for the SFJWA and was also the 2012 Grand Nationals Tournament Director.

7. City Councilor Carmichael Dominguez forwarded Larry Lujan’s solicitation letter to the City Manager Robert Romero asking for his consideration and expressing his support.

8. Robert Romero forwarded Larry Lujan’s solicitation letter to Isaac Pino, Public Works Director, and to Martin G. Lujan, requesting that both evaluate what the City had done in the past to sponsor the tournament and to tell him (Romero) what the City could afford to do in 2012.

9. Martin Lujan told City Manager Romero that he would follow up with his brother, Larry Lujan, to obtain specifics as to what was sought in sponsorship, whether actual money or an in-kind donation.

10.Martin Lujan informed City Manager Robert Romero that the City’s contribution for 2011 AAU Grand Nationals was primarily as in-kind services, partial rental forgiveness for use of the Santa Fe Community Convention Center and the purchase of two ads which were placed in the Wrestling Tournament Program.

11. In his response to the City Manager, Martin Lujan indicated that these types of support were possible for 2012.

12. In his communications with the City Manager, Martin Lujan provided him with information regarding the cost for advertising in the tournament program and confirmed that the hosting fee was $5,000, which had already been paid by the SF JWA.

13. Martin Lujan personally recommended to the City Manager that the City pay the $5,000 bid/hosting fee, plus purchase a couple of ads in the tournament program, which would bring City support to ... $6,320, depending upon the cost of the specific ads.

14. In that communication, Martin Lu-jan also advised the City Manager that he could find the funds to purchase the ads and that the tournament would have a positive impact on gross receipts tax and lodgers tax revenue, stating that wrestlers and their families could spend as much as $500,000 during their stay in Santa Fe.

15. Based on these recommendations, City Manager Romero believed that the $5,000 bid/hosting fee did not include any advertising and that Martin Lujan was recommending that the City purchase some.

16. Based upon the recommendation from Martin Lujan, City Manager Romero authorized an expenditure of $6,320 to be used in supporting SFJW in hosting the tournament. He believed that this sum included the bid/hosting fee of $5,000 and an additional $1,320 towards the purchase of non-specified ads in the tournament program.

17. The AAU Grand Nationals Tournament was held in Santa Fe on June 6 to 9, 2012. At the time that it was held, the City had not yet paid any portion of its authorized sponsorship monies to Santa Fe Junior Wrestling.

18. Sometime later, a string of email was discovered on Martin Lujan’s City e-mail account, beginning on June 19, 2012, between him and his brother Larry Lujan relating to payment of the sponsorship monies.

19. The City of Santa Fe’s fiscal year runs from July 1 thru July 30 of each calendar year. Thus, the end of the fiscal year for 2012 concluded on June 30, 2012.

20. The actual text of the e-message exchange is set forth here: [Ms. Maynes then included photocopies of the electronic-mail transmissions between M. Lujan and L. Lujan]

21. Attached to the first e-mail on June 19, 2012 was an invoice dated May 4, 2012 for “$6,000 for the 2012 AAU Grand National Wrestling Host Fee (includes host fee, City logo on website, City logo on event program).” This invoice represents on its face that the City was obtaining both the Host Fee and some advertising.

22. In his message to Larry Lujan on June 20, 2012, Martin Lujan responded to his brother, “We went from $5k to $6k to cover the $450. [sic] reimbursement on ticket. Back cover was not included but you did mention if we purchased it would cover air to Florida. Doesn’t look like that is happening soo I guess its not an issue. Just noticed invoice came through ...”

23. There was never authorization by City Manager Robert Romero for a $450 reimbursement for a ticket, whether an airline ticket or an event admission ticket for Martin Lujan.

24. In addition to the invoice for the $6,000 host fee, Larry Lujan attached a second invoice to his June 20, 2012 e-mail message. The invoice is dated June 1, 2012 in the amount of $750 for “2012 AAU Grand National Wrestling host fee (includes: Back Cover page of event program).”

25. There was never authorization by City Manager Robert Romero for an additional expenditure of $750 for a back cover of the event program advertisement.

26. On June 20, 2012, at 8:15 a.m., Martin Lujan forwarded both invoices to his Administrative Assistant Jennifer Romero for processing and payment.

27. Jennifer Romero then forwarded the $750 invoice to Clarissa Lovato, owner of Elevate Media, for payment with the messages, ‘Invoice for ad placement sfjr.wrestling. Jennifer Romero routed the invoice for $6,000 to the City’s Finance Department for payment.

28. The City of Santa Fe maintains a Professional Services Agreement with Elevate Media to reimburse it for actual expenses incurred placing advertising and seeking media exposure for the City of Santa Fe’s recreational enterprises, in particular, for the “Marty Sanchez Links de Santa Fe Golf Course.”

29. Elevate Media’s Professional Services Agreement was awarded via competitive bids pursuant to a request for proposal procurement.

30. As the MRC Administrator, Martin Lujan is the individual who authorizes placement of advertising for the Marty Sanchez Links de Santa Fe Golf Course and he has regular contact with Clarissa Lovato for that purpose.

31. In October, 2008, Larry Lujan had authorized payment for Clarissa Lovato to attend a National Parks and Recreation Conference in Baltimore with all expenses paid by invoicing the City under Elevate Media’s professional services agreement.

32. There is a close professional relationship between Marin Lujan and Clarissa Lovato as a result of his approval of expenditures for advertising for the Marty Sanchez Links de Santa Fe Golf Course.

33. On Friday, June 29, 2012, Martin Lujan received an e-mail from Robert Rodarte, the City of Santa Fe Purchasing Officer, regarding Purchase Order No. 1130768, the purchase order seeking a voucher for the $6,000 payable to Santa Fé Junior Wrestling for the City sponsorship of the Grand Tournament.

34. In his message to Martin Lujan, Rodarte stated:

“After reviewing the Purchase Orders issued for the month of June. I noticed that the PO listed above for the Santa Fe Junior Wrestling was missing a contract. Somehow this one got past me in the approval process. In order to comply with the Procurement Rules, I will need for you to create a PSA [Professional Services Agreement] related to the services provided by this organization. Based on the history between the City and the SFJW group, we have always created a PO for $5,000. This year, the total amount was for $6K, which is above the threshold of $5K, therefore requiring a PSA. Break down the amount of money expended for each service. The invoice submitted to Payables has no documentation as to what the City is paying for. Have the vendor give you a breakdown. I havé placed a hold on the check until the issue is resolved.”

35. At that point, Martin Lujan directed his Administrative Assistant Jennifer Romero, to prepare a PSA draft to cover the $6,000 host fee and advertising.

36. The message from Rodarte, set forth in Finding 34, was sent at 4:38 p.m. on a Friday. On Monday, July 2, 2012 at 7:17 a.m., Martin Lujan sent an e-message to Jennifer Romero stating, “Good morning Jenn ... Let’s hold on Clarissa June invoice until I get to office. Hope it’s not too late. See you in a bit.” One minute after that email to Jennifer Romero, Clarissa Lova-to of Elevate Media sent an e-message to Jennifer Romero at [7:18 a.m.] concerning Elevate Media’s June invoice to the City. In that email, Lovato stated, “Just realized that the invoice I faxed on Friday is not correct. Call me with questions.”

37. Mysteriously, the Elevate Media original June invoice faxed from Lovato to Romero at the City disappeared and no longer exists. Clarissa Lovato said that she destroyed it electronically.

38. One week later, July 9, 2012, City Manager Romero asked Jennifer Romero [no relation] for a copy of the fax referred to by Clarissa Lo-vato. Jennifer Romero, too, stated that she lost the fax and could not produce it.

39. On July 9, 2012, City Manager Robert Romero requested a copy of the fax from Clarissa Lovato, who responded that she could not find it.

40. When City Manager Robert Romero asked Lovato to explain what mistakes were on the June invoice, she told him there were spelling errors.

41. In fact, almost every invoice submitted by Elevate Media to the City for payment under its contract was replete with spelling errors: a spelling error on an Elevate Media invoice would not have 'been remarkable or out of the ordinary.

42. The final June 2012 invoice resubmitted by Elevate Media did not include the $750 charge for the Santa Fe Junior Wrestling back cover if the event program advertising.

43. Martin Lujan contacted Clarissa Lovato sometime early on July 2, 2012 and asked her to destroy the June invoice she had submitted to Jennifer Romero for payment which had • included the $750 charge.

44. Martin Lujan contacted Clarissa Lovato sometime early on July 2, 2012 and asked her to destroy the June invoice she had submitted to Jennifer Romero for payment which had included the $750 charge.

45. Martin Lujan’s statements to his brother Larry Lujan in the e-mail chain beginning on June 19, 2012, and continuing through July 2, 2012, [Finding 20] were made for the purpose of authorizing City funds to reimburse Larry Lujan for Martin Lujan’s personal expenses. And as incentive for Larry Lujan to use his.influence with AAU officials to obtain complimentary admission to athletic tournaments or reimbursement to attend those events for Martin Lujan.

46. Martin Lujan’s communications to Jennifer Romero and Clarissa Lo-vato on or around July 2, 2012 to “hold off on” the original Elevate Media June 2012 invoice were for the purpose of concealing his attempt to obtain additional City funds in excess of the authorized $6,320 to reimburse his brother Larry Lujan for personal expenses.

47. Martin Lujan received a Notice of Contemplated Action on July 13, 2012, which he refused to sign on July 13, 2012. City Exhibit 4.

48. A predetermination meeting occurred with Martin Lujan on July 23, 2012 and minutes were maintained of that meeting.

49. Martin Lujan appeared with his attorney at the predetermination meeting on July 23, 2012 at 9:30 a.m. City Exhibit 7.

50. Martin Lujan received the Notice of Proposed Disciplinary Action-Termination of Employment, dated July 30, 2012. City Exhibit 10.

51. The Notice of Final Decision was issued to Martin Lujan on August 7, 2012, terminating his employment effective August 14, 2012. City’s Exhibit 12.

52. Nathaniel Thompkins, Attorney for Martin Lujan, requested appointment of an outside hearing officer by letter dated August 13, 2012. City’s Exhibit 14.

53. A formal hearing was held in this matter on November 6-8, 2012 and continued until completion on December 3, 2012.

54. The parties both agreed to waive the requirement for issuance of this decision within 30 days of the close of the hearing.

Decision ¶¶ 1-54, 15-28, filed September 13, 2013 (Doc. 30)(“Deeision”)(modifica-tions in Decision).

Ms. Maynes upheld M. Lujan’s termination and made the following conclusions of law:

1. The Hearing Officer has subject matter jurisdiction over this appeal and over the Appellant Martin Lujan, pursuant to Rule 7.51, and 7.52 of the City of Santa Fe Personnel Rules/Regulations and Policies (Rev. 11/30/05).

2. Martin G. Lujan was a classified employee subject to the City of Santa Fe Personnel Rules on August 11, 2012 and for the entire period of the calendar year 2012.

3. Martin Lujan received all process due to him under the Personnel Rules/Regulations and Policies of the City of Santa Fe (November 2005), for imposing formal discipline upon him.

4. The parties agreed to the designation of Paula G. Maynes as Hearing Officer pursuant to Rule 7.51(3).

5. The hearing date and time were determined by agreement of the parties, including the date upon which the hearing was continued and concluded, December 3, 2012.

6. Martin Lujan appeared at the hearing on November 6, 7 and 8 and December 3, 2012, and was represented by Nathaniel Thompkins of the New Mexico Law Firm through the course of the hearing.

7. The hearing was tape-recorded by the Hearing Officer and recorded by certified shorthand reporting performed by Maureen Costello, New Mexico Certified Shorthand Reporter.

8. The City of Santa Fe met its burden of proof to show by a preponderance of the evidence that Martin Lujan attempted to obtain City funds under false pretenses, specifically, by authorizing payment of two submitted invoices, the first for $6,000 and a second invoice for $750, to reimburse or pay Martin Lujan’s personal expenses through the Santa Fe Junior Wrestling Association, via its Treasurer, Martin Lujan’s brother Larry Lujan.

9. There was “just cause” for Martin Lujan’s dismissal in the record to conclude that Martin Lujan’s acts, statements and intent violated subsections of Section 7.50(E):

(2) Careless, negligent or improper use of City property, equipment or funds;

(7) Stealing from the City or from other employees;

(10) Intentional falsification or mishandling of City records; ... and (13) action which reflects poorly upon the integrity of the City Santa Fe [sic].

Rule 7.50(E) Personnel Rules/Regulations and Policies [11/2005].

10. If it is determined in any subsequent review of this decision that § (7) of Section 7.50(E), “Stealing from the City”, does not include statements showing an intent to steal, then there was sufficient evidence to support Martin Lujan’s termination for just cause based on §§ (2) “Careless, negligent or improper use of City funds”, (10) “Intentional falsification or mishandling of City records” and (13) action which reflects poorly upon the integrity of the City of Santa Fe.

11. Martin Lujan’s acts and statements made in furtherance of the attempt to obtain and commit City funds to his personal use or expenses constitutes “just cause” for his dismissal under the City of Santa Fe’s Personnel Rules.

12. Martin Lujan’s dismissal from classified employment was for just cause under the standards enunciated in Rule 7.50.

Decision ¶¶ 1-12, at 29-31.

PROCEDURAL BACKGROUND

On April 18, 2013, M. Lujan filed a Petition for Writ of Certiorari and a Complaint in the First Judicial District Court for the State of New Mexico, County of Santa Fe. See First Amended Petition for Writ of Certiorari and Complaint for Violation of First Amendment Rights, Retaliatory Discharge and the Whistle Blower Act, filed May 9, 2013 (Doc. 1-2). On May 9, 2013, the Defendants removed the case to the United States District Court for the District of New Mexico, asserting that the District of New Mexico has federal-question jurisdiction over the case. See Civil Cover Sheet, filed May 9, 2013 (Doc. 1-1). On October 11, 2013, M. Lujan filed a second Petition for Writ of Certiorari and a Complaint. See Second Amended Petition for Writ of Certiorari and Complaint for Violation of First Amendment Rights, Retaliatory Discharge and the Whistle Blower Act, filed October 11, 2013 (Doc. 39)(“Complaint and Petition”)

M. Lujan asks the Court to issue a Writ of Certiorari, pursuant to Constitution of the State of New Mexico, and reverse Ms. Maynes’ decision for three reasons. See Complaint and at 8-9. First, M. Lujan contends that there is no substantial evidence that he committed theft, attempted theft, or was careless or negligent in the use of City of Santa Fe funds as defined under the City of Santa Fe’s Personnel Rules and Regulations. See Complaint and Petition at 8. M. Lujan points out that Ms. Maynes questioned her own finding on the issue of theft and stated that the evidence only demonstrated “statements showing an intent to steal.” Complaint and Petition at 8 (citation omitted)(internal quotation marks omitted). M. Lujan notes that R. Romero testified at the post-termination hearing that the City of Santa Fe never paid the SFJWA or any other entity that it agreed to pay under the purchase order that it issued to the SFJWA. See Complaint and Petition at 8.

Second, M. Lujan asserts that Ms. Maynes “misinterpreted and/or misapplied the law or rules which govern[ed]” his alleged conduct. Complaint and Petition at 8. M. Lujan points out that the City has not presented any evidence that it paid money either to the SFJWA or to AAU because of M. Lujan’s actions. See Complaint and Petition at 8-9. M. Lujan says: “Therefore it is inconsistent as a matter of law for Martin to have been careless,- negligent or improper with City funds.” Complaint and Petition at 8. M. Lujan also argues that the electronic-mail transmissions between him and his brother on which Ms. Maynes relied “do not demonstrate that Martin handled any City funds.” Complaint and Petition at 9. M. Lujan states that there is no evidence that he incurred any personal expenses, purchased an airline ticket, or received reimbursement for any expenses. See Complaint and Petition at 9.

Third, M. Lujan asserts that the City of Santa Fe acted fraudulently, arbitrarily, and capriciously. See Complaint and Petition at 9. M. Lujan argues that R. Romero was his friend until M. Lujan began investigating concerns about R. Romero’s girlfriend violating “time clock” policies. Complaint and Petition at 9. M. Lujan explains that he “instituted measures to control the abuses that were being carried out regarding employees clocking in for other employees,” and that R. Romero’s “subordinates and cronies” granted R. Romero’s girlfriend an exemption from those measures. Complaint and Petition at 9. M. Lujan concludes:

When Robert Romero became aware that Martin was investigating the legal requirements concerning the exemption of Robert Romero’s girlfriend from the time clock policy and the nepotism of Robert Romero to a relative of his girlfriend, Robert Romero retaliated against Martin and violated his First Amendment Rights to Free Speech and Liberty, Violated the City’s Anti-Fraud Policy, and retaliated against Martin for being a Whistle Blower.

Complaint and Petition at 9.

M. .Lujan also alleges that the Defendants: (i) violated his rights under the First Amendment to the Constitution of the United States of America when they retaliated against him for exercising his right to free speech, see Complaint and Petition ¶¶ 1-14, at 11-12 (Count I); (ii) unlawfully discharged him for raising issues of public concern, see Complaint and Petition ¶¶ 15-24, at 12-13 (Count II); and (iii) violated the New Mexico Whistleblower Protection Act, N.M. Stat. Ann. §§ 10-16C-2(1) and 10-16C-2(4)(“WPA”), when they terminated him after he raised concerns that City of Santa Fe officials had violated the City of Santa Fe’s Personnel Rules, Regulations, and Policies, Complaint and Petition ¶¶ 2