100107 City Reply to Petitioner Reply to Motion to Dismiss

8/3/2019 100107 City Reply to Petitioner Reply to Motion to Dismiss

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STATE OF NEW MEXICOCOUNTY OF SIERRASEVENTH JUDICIAL DISTRICT COURT

sTt,H . O F N E W MEXIC. S E Y E N T I i J U D I C I A L

D I S T R I C T C O U R TF I L E D

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No.: D-0721-CV -2009-00098Judge: WILLIAM SANCHEZ

STATE OF NEW MEXICO, ex. reI.DEBORAH TOOMEY, Individually,

Petitioner,vs.CITY OF TRUTH or CONSEQUENCES, a Municipality;LORI MONTGOMERY, Individually,and in her Official Capacity as Mayor;JERRY D. STAGNER, Individually,and in his Official Capacity as Mayor Pro-Tern;FRED TORRES, Individually,and in his Official Capacity of City Commissioner;EVELYN RENFRO, Individually,and in her Official Capacity of City Commissioner;STEVE GREEN, Individually,and in his Official Capacity of City Commissioner;JAIME AGUILERA, Individually,and in his Official Capacity of City Manager;MARY PENNER, Individually,and in her Official Capacity of City Clerk and Custodian of Records;BERNADINE GARCIA, Individually,and in her Official Capacity as Utility Billing Supervisor;DISTRICT ATTORNEY FOR SIERRA COUNTY,

Respondents.CITY'S REPLY TO PETITIONER'S REPLYTO RESPONDENT'S MOTION TO DISMISS

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6. The City is in full compliance with all State and Federal regulations. ThPetitioner fails to explain her contention as to why she feels we are in violation.

7. The requested information could only be created in the burdensome ancostly manner outlined on pages 4-5 of our October 21, 2009 response.

8. In the absence of the documents being created, the requested audit 1 0 sdo not exist.

9. The Inspection of Public Records Act does not contemplate creating nedocuments to satisfy a request. Rather, the IPRA only contemplates public recor sthat are already "made or received by any agency in pursuant of law or nconnection with the transaction of public business." See 14-3-2(c).

10. As noted, this is not a case where the City has public records which it isrefusing to produce. Rather, this is a situation where the Petitioner is asking theCity to create over 50,000 pages of new documents.

11. This Court can take judicial notice of Sierra County Cause No. CV-2009-159 Audette and Toomey vs. City of Truth or Consequences. In that case, thePetitioner is seeking the production of non-existent DVD recordings. ThePetitioner improperly uses the Courts to request non-existent information.

WHEREFORE, the City seeks the following relief:A. The Petition should be dismissed.

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B. The Petition contains six (6) separate paragraphs alleging fraud, perjuor producing false records against the City personnel. Petitioner re-stated h rallegations at least nine (9) times during the December 29, 2009 hearing. The Ci ydoes not seek sanctions against Petitioner for her wild and baseless allegations, b tshe should be admonished from making similar allegations in her other litigatio sagainst the City.

JAIME F. BIN, Esq.City AttorneyJaime F. Rubin, LLCP.O. Drawer 151Truth or Consequences, NM 879 1 1575.894.3031 Fax: 575.894.32812

CERTIFICATE OF MAILINGThe undersigned hereby certifies that a copy of the foregoing CITY'S

REPLY TO PETITIONER'S REPLY TO RESPONDENTS' MOTION TODISMISS was mailed to Deborah Toomey, Petitioner, at 415 W. Riverside Dr.,Truth or Consequences, New Mexico, 87901, on theiday of January, 2010.

JAIM~IN' Esq.

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: ~ : I I . : 1 :

AMERICAN DATA GROUP5730 E Otero Ave Suite 300Centennial, CO 80112-6600Telephone (303) 741-5711FAX (303) 741-4966

January 4,2010

Berna GarciaCity of Truth or Consequences505 Sims StTruth or Consequences, NM 87901

Dear Ms. Garcia,This letter is in response to your email of January 4,2010 regarding the log files and ODBCConnection.Regarding Item 13: Instead of creating a report to manually go through, you can use theSystem Administration Menu - option# 10 'Export Data For SS/WP' to accomplish the same task.Select the SYAUD file, then F6 to select all fields. Fl to GO, enter a file name like Audit.csv tocreate and then Fl again.This will create a CSV formatted file that can be imported in to an access database or excelspreadsheet (maximum rows of 65k) and then viewed and modified. CO# is the companynumber and is always 1. Control# is the account number when the module id is MA,CT,DT,DP;or service location code when the module id is LC,LS,LT,SV. Field is the description of the fieldthe data is for. Key2 is the Location Service identifier when the module id is LS; or QuestionNumber when the module id is DT,LT; or Third party contact# when the module is CT. ModDate was the date of the transaction. Module identifies which master file was accessed. NewValue is the new value that was added. Old Value was the previous value before the change.Time is seconds from midnight the transaction occurred. Who was the logged in operator id thatmade the change.You could use this file and create macros to delete records where the field data is confidential andyou wish not to provide it. The other option would be to print a big report to file and then do asearch and delete of data.Regarding Item 14: The Microsoft ODBC driver provided with the Microsoft operating systemis only for Microsoft products. The driver does not talk with 3 'd party databases. If you connectthe Progress!Merant ODBC driver to the database you can extract more data. You would have touse the Server to connect to the ODBC or install the Progress/Merant Driver on the system youwish to use to extract the data. Once the driver is installed, you must have a login id andpassword to access the data. The data is not just accessible unless you configure the proper log-inrequirements. The information provided in 'Regarding Item 13' will accomplish the same thing as


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connecting an ODBC unless you know how to use the SQL language to refine your dataextraction.Regarding Item 15: The Progress Log file is a standard text file that is accessible from anyeditor or word processor. The log file is a system log file and does not track user activity. The logfile tracks when the database service is started, stop, had maintenance functions performed on it,and a user's machine name login/logout data and time. This log file DOES NOT have any audittrail of a users activity within the database.Regarding Item 16: Because the audit file report and extract is be field within each master file,the report can be extremely large. If an operator accesses and account and changes 4 fields ofdata, 4 different records are created. Any data NOT CHANGED, is not included in the audit log.

Regarding Item 17: Yes the audit log report can be printed or saved to a text file.Regarding Item 18: What we call a report or a file has to do with what we mean for it, not howa dictionary may describe the same word.Regarding Item 19: NO DATA is 100% capable of being protected. If you look at all the PCIDSS restrictions for credit card processing to help promote security, even the largest credit cardprocessors who conform to the restriction have been hacked.Please let me know if you have any other inquiries.Sincerely,Mark J. JostPresident


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1\V\ lfbREPORTUTILITYOFFICE:

Ms. Kelley stated last week she went to Oklahoma City with theNM Dept. of Tourism exhibiting at the Oklahoma City RV andBoat Show. She was also there in June for the North AmericanTravel Journalists Assn. Conference, and indicated her main catchthere was to capture their attention with Spaceport America.She stated Cultural Heritage Tourism is very big right now and wasable to push that aspect of our County, and reported she had reallygood response and will see more press visits out of it, andexpressed there was a lot of interest.Ms. Kelley reported in May she hosted 20 tour operators with theNM Tourism Department, and that they were all bus tour operatorsfrom around the US who had never been to Southern New Mexicobefore, and several of them indicated they would be booking tourshere in 2009 & 2010. And in June they hosted 8 journalists fromMexico ... from Chihuahua and Juarez and were here for 2 days.She stated last weekend she hosted the editor from Rand McNallyroad Atlas ... "Best of the Road" series, and indicated in 2010 theywill be doing Southern New Mexico as their best of the road, and itwill be in front of the Atlas and is available all year long, and statedthe editor enjoyed it here so much that the next morning she wentto their web-site and wrote a travel log about Truth orConsequences called "What Lies Beneath."Ms. Kelley stated she has been exhibiting at other holisticconferences to get the word out about our hot springs. She statedshe is working with the up coming Elephant Butte Golf Shoot OutTournament. And she is also working with the NM Department ofTourism doing joint efforts with Socorro County to pool theirresources and not having to spend as much money, and that theyare doing a lot of joint projects together to market the southern halfof the State and their two counties specifically.Information only no action needed.

FROM City Manager Aguilera reported on information from the utilityoffice regarding department policies and privacy rules. He stated 4cities were contacted who have the same utility services that T or Cdoes, and that they also require social security numbers, and if acustomer refuses they require the last four digits, plus all thedrivers' license information. On deposits some are flat rate, othersaverage, and some use a letter from a utility to waive deposits.He stated the Commission was provided information on the 1974Federal Privacy Act and how it pertains to this, and they also haveopinions from our City Attorney and the NMML Attorney that weare able to require the SS#.City Manager Aguilera stated on the computer security policy ... onwhat our IT department is doing ... the Utility System has a pair offirewalls, and the net-work in between the two firewalls are non-routable ... meaning there is no way to route query to get into thesecond net-work. He stated the program they use is a proprietarydatabase and could not be read without the actual software, andindicated our back-up or server these files are encrypted for safetyand requires the proprietary software to view the file and that theback-up is stored in a secure off-site location.He stated the City also has a pass-word security policy and that theutility system has an audit log for several areas within the system to

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CONSIDERAPPLICA nONFORDOWNTOWNGRANT:

AGREEMENT - 1CALL VILLAGE& CITY OF T ORC:

Report only, no action required.

see what changes are made, and that the system will log theoperator that performed the process with the date and time, andwhat the old field was and what the new filed contains, and that thisallows them to print a period of time and see any changes made tothat account and who made them, and this audit also containsexempt and nonexempt information.City Manager Aguilera stated that the other cities contacted do nothave the amount of write-off of bad debts that our city does.City Attorney Rubin stated that all the other municipalities thatwere contacted, and that they have one thing in common ... allcontemplate asking applicant's for social security numbers which iswhat they have been saying for the last couple of months.

"Commissioner Green read from a preamble and moved that theCity apply to the McCune Charitable Foundation for the 2009funding for a non-matching grant in the amount of $50,000. Heindicated the grant money would be used to hire an urban plannercreating a master plan for the revitalization and preservation of ourhistoric downtown and possibly to cover to capital expenses."Seconded by Commissioners Stagner/Renfro.

Commissioner Torres asked if all this could be done for $50,000.City Manager Aguilera stated that he and Commissioner Green hada conversation and indicated they couldn't hire a professionalcompany for that amount of money. He stated he contactedSCCOG and asked them to apply for a planning grant, andmentioned that SCEDO just received a $50,000 grant that they usedto do an economical development study, and he thinks they can geta $50,000 grant to do a downtown study, and thinks that this grantand the one SCCOG could get us could be put together in order tohire a consultant to do the work.Commissioner Stagner commented ... they were talking aboutdowntown being deteriorated, and pointed out when he came 12years ago, and expressed it looked a whole lot worse than it doestoday, and there has been buildings revitalized, and new businessesdowntown since he has been here. He thinks they should continuethe revitalization.Commissioner Torres stated there was a comment made about themnot caring about the flood problem in the downtown area, and thathe is definitely for flood control if they can come up withsomething they can afford.

Motion carried unanimously.City Manager Aguilera stated this is an unfunded mandate from theState of New Mexico, and as of the l " of January they are requiredto locate underground utilities when someone wants to dig they callan 800# and then the City receives a call, and then they go out andlocate the utilities underground.He stated the City is already in compliance and have set up thesystem, and explained that the Village of Williamsburg does nothave the staff available to do this, and they own their own sewersystem and the City owns the water system, so when someone is

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Commissioner Renfro - are they filing liens.Berna - they do file liens against homeowners, but they cannot fileagainst a homeowner if they have a letter on file of non-responsibility ... which most owners do have on file. And statedhaving the information available helps them in identifyingcustomers prior to opening a new account and helps internally andsending off to collections.Commissioner Green - are record systems that are not encrypted orsecure ... once they have this information on a computer. . .is thatencryption changed every so often so people don't fall asleep at theswitch, and all of a sudden someone goes out to lunch, and theother person in the office can actually just start doing somedestructive work against the City, and against its residents ... do theyupdate that ... do they change .. .it's a password ... a code .. .I meanwhat do they have in place .. .I'm just looking at the word encryptedor secure.Berna - stated that would be something that the IT person wouldhave to answer, and as far as our office they have different ... theyeach have to have a password to get into the system, and if one ofour Clerk's is doing something he is going to know which Clerkwas in doing what at what time, so the IT people is the one whoactually takes care making sure they are not doing anythingincorrectly, and anything done to the system is counter acted withthe GL, so anything they do is printed out after the report is done.Commissioner Torres stated social security numbers are personalproperty, and that maybe they need to work ... get more money upfront.Commissioner Stagner stated he would like to see them do astudy ... a little broader study and see about larger deposits, andwould like to see what other cities are doing.Mayor Montgomery stated she has a list of items for them toresearch - Continue to research what other cities do, Info., on the1974 Federal Privacy Act and how it pertains to this specifically,Computer Security Policy on what IT is doing, Password SecurityPolicy on what they are doing and how IT is tracking that, and ifthere is a way to go back and check who has accessed the system atwhat time and what they went into ... that type of security program,and research higher deposit options for those individuals thatabsolutely refuse to give their social security numbers.Berna - stated there were two items that she presented to theboard ... which was social security deposits, and the social securitypolicy that they have in place.Mayor Montgomery stated those deposits should be substantial tocover first and last, and any other period of time they take inbetween that time that person would be red tagged .. .I'menvisioning 90 days ... there should be enough money in ouraccount to cover that if that person chooses to be a bad debt to theCity.

,,,'-

Berna stated on the Privacy Act that Ms. Toomey read, on the topportion of the print out on line on her Goggle Search, indicated thefollowing section was originally part of the privacy act but was notcodified and may be found at 522a ... which to her understanding itmight have been intended but was never codified, and so she can

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100107 City Reply to Petitioner Reply to Motion to Dismiss