Judge Dismisses Recall Petition Against Commissioner Burnett, Finds No Legal Duty per Existing Charter Ordinances to Answer Constituents

ALAMOGORDO, N.M. — A district judge has dismissed a petition seeking a recall election against Alamogordo City Commissioner Stephen W. Burnett, ruling that the petitioner failed to establish enough evidence of probable cause on her claims of misconduct tied to the city's turbulent, two-year search for a city manager.

In a 22-page order filed September 9, Twelfth Judicial District Judge John P. Sugg rejected the petitioner Kim Murillo's allegations of misfeasance, malfeasance, and violation of oath of office, finding not enough evidence submitted that could prove Burnett acted with an improper or corrupt motive in any of the votes at the center of the dispute.

No Charter obligation to explain votes — or answer constituents

Perhaps the ruling's most consequential holding for Alamogordo residents: elected officials in the city have no legal duty to respond to constituent inquiries per the evidence submitted. 

Murillo's petition grew out of frustration that Burnett, her district's commissioner, agreed to answer her questions about the city manager hiring process and then never followed through. The court found that failure undisputed — but not unlawful. Because Murillo cited no authority within the Charter requiring a commissioner to respond to constituents, the court assumed none exists and treated Burnett's silence as a discretionary act.

Judge Sugg acknowledged the city's Code of Conduct requires officials to give constituents a fair opportunity to express concerns and grievances, but concluded nothing in the city's ordinances creates an obligation to answer every inquiry a commissioner receives. Drawing on the purposes behind the Speech and Debate Clauses of the state and federal constitutions — while suggesting they do not directly apply to city commissioners — the court reasoned that representatives are generally under no obligation to explain their votes, and that there is a difference between transparent government and a right to know an elected official's internal thinking.

"It is understandably frustrating," the judge wrote, that a representative promised to communicate and failed to do so — but nothing in the law presented compels such action.

The hiring saga behind the petition

The recall effort traces back to the resignation of City Manager Rick Holden in late 2024. Assistant City Manager Stephanie Hernandez served as acting manager while the commission ran two recruitment processes — one in-house, one through a national executive search firm. Hernandez was the only candidate to earn a passing score under the commission's own rubric in the first round, which was abandoned after then-Mayor Susan Payne described the process as "tainted" by commissioners' public comments about a candidate.

After Hernandez filed an EEOC inquiry against the city, the commission voted unanimously in March 2026 to offer her the permanent job with an admission the process was tainted. Contract talks stalled due to a demand to drop the EEOC inquiry, and in April the commission voted 4–3 — with Burnett in the majority — to instead accept Hernandez's one of two settlement proposals by Hernandez either pay  her $485,340.45 in backpay and ending her employment or issue her a contract as agreed for $360,000. Instead the majority offered her a back pay settlement and then offered a contract near half million to Stockwell together costing the city nearly $1 million dollars that was avoidable but per the judge, Burnett not required to explain. 

Two months later, the commission voted 5–2 to hire Robert Stockwell, who had not applied through either recruitment process. Burnett voted in favor. Murillo argued the reversal on Hernandez, the Stockwell hire, and alleged Open Meetings Act violations amounted to recallable misconduct.

Patillo and Rardin drove the Stockwell hire, court finds and may have opened a door to malfeasance. 

While the order clears Burnett, its findings place the recruitment of Stockwell squarely with two other officials: Commissioner Baxter Patillo and Mayor Pro-Tem Joshua Rardin. The court found the pair had been actively recruiting Stockwell since the initial hiring process began, and that Patillo circulated a proposed contract to the full commission three days before the June 15 special meeting at which Stockwell was interviewed and hired — legwork Patillo himself described in emails as "my solo legwork."

The court found no evidence Burnett played any role in recruiting Stockwell or made any private agreement on how to vote. Whether the ruling's findings fuel further political fallout for the other two commissioners who orchestrated the hire is a question the order does not answer — a recall against any official would require its own showing of probable cause under the same demanding standard Murillo's petition failed to meet specific to Burnett. 

Claims that Burnett violated the city's Code of Conduct by contacting zoo and golf course employees directly, and that he used his position to advance his sister-in-law's Local Economic Development Act application, also failed — the former for lack of admissible evidence beyond hearsay, the latter because the conduct at issue occurred in 2025, during Burnett's prior term, and recall grounds are limited to the current term.

Citing New Mexico Supreme Court precedent, Judge Sugg stressed that recall is available "for cause, and not recall at will," and that the standard must be limited to avoid employing recall for harassment or purely political purposes.

Attorney: stronger case exists against other commissioners

An attorney who reviewed the court record said the findings point to a far stronger case against Patillo and Rardin than the one brought against Burnett, and contended that additional evidence of Open Meetings Act violations exists in the city's own files — including what the attorney described as admissions of prior misconduct — that was never presented at the July 29 probable cause hearing. That evidence was not in the record before Judge Sugg.

The same attorney questioned the court's conclusion that no law obligates officials to respond to constituents, pointing to the body of state and federal transparency requirements imposed on government at every level.

The failure, the attorney argued, may lie not in the law itself but in the citations the petition failed to put before the court — a reading the order arguably invites, since Judge Sugg rested that holding expressly on Murillo's failure to cite authority, citing State v. Casares for the proposition that a court assumes no authority exists where none is offered.

Where the attorney has a real point: New Mexico's IPRA does impose an enforceable duty with deadlines — a custodian must respond to a written records request within 15 days, NMSA 1978 § 14-2-8(D), with damages and fees available under § 14-2-12. If Murillo's inquiries had been framed and cited as IPRA requests, there'd have been more state actual statutory authority in front of the court rather than the limited authority of the weak city charter. Same for OMA's enforcement provisions at § 10-15-3. That's the gap — not a duty to answer emails, but a duty to produce records that the petition never invoked may have been the missing component to the Murillo effort. 

"A small setback"

Murillo said she was disappointed in the ruling but “encouraged by what she has seen from Burnett since, noting he attended a recent community forum and appears more engaged with the district.”

She acknowledged Burnett's was the weaker of the cases she could have brought, but said the court affirmed points that will help future efforts and did not reflect well on Patillo or Rardin.

Murillo said her goal “is a government responsive to the people, and that rules holding political leadership accountable to constituents need tightening.”  She said she intends “to keep pressing for transparency and views the dismissal as a small setback in a larger effort.”

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