Court sides with ‘The Elephant Man’ in public meetings dispute

By Rob Nikolewski │ New Mexico Watchdog

SANTA FE, N.M. — He’s been called a gadfly. He may annoy the heck out of the Albuquerque Public School’s Board of Education, and he even attended one public meeting wearing an elephant mask.

Still, Ched MacQuigg has every right to speak before the board, according to a federal judge in Albuquerque.

Furthermore, the judge says, the board overstepped its bounds by barring MacQuigg from its meetings for nearly four years.

“The public has an interest in seeing public meetings conducted in a manner that respects attendees’ First Amendment rights,” Chief U.S. District Judge M. Christina Armijo said in her March 31 ruling that granted a preliminary injunction against the APS school board in the long-running dispute.

“I feel vindicated,” said MacQuigg, a former APS shop teacher whose verbal jousts with the board prompted then-Board of Education President Martin Esquivel and APS Chief of Police Steve Tellez to send MacQuigg a letter in September 2010 “revoking” his “privilege” to attend public meetings of the board.

“APS has invested a lot of energy and resources into making me appear to be a crackpot,” MacQuigg said in a telephone interview with New Mexico Watchdog. “They really did violate my civil rights by not letting me stand up at a public forum and ask them questions.”

Esquivel did not return phone calls from New Mexico Watchdog asking for his reaction.

“We don’t comment on pending litigation,” APS executive director of communications Monica Armenta said.

MacQuigg has filed a civil lawsuit against the APS Board and six APS employees, including Esquivel, Armenta and superintendent Winston Brooks.

MacQuigg’s clashes with the board date back to 2006, when he began criticizing board members for not being proper role models for APS and not living up to the goals of a curriculum called “Character Counts,” which has since been phased out.

A regular attendee at board meetings and persistent critic of the board on his website, Diogones’ Six, MacQuigg frequently spoke during the two-minute segments in which people are allowed to address the board.

But Esquivel and others members accused MacQuigg of speaking out of turn and interrupting meetings. They also accused him of making personal attacks and, in their papers to Armijo, worried that MacQuigg was a “ticking time bomb.”

MacQuigg was ejected on a number of occasions, including from one meeting in 2008 when he wore an elephant mask and refused to take it off.

“I started going to board meetings and asking them to defend their actions, and they were basically ignoring me,” said MacQuigg, who twice ran unsuccessfully against Esquivel. “So the elephant mask was an effort to get them to stop ignoring me and talk about the elephant in the room.”

After getting the 2010 letter kicking him out of board meetings, MacQuigg filed his court case on the grounds that the board had no right to ban him from its public meetings.

On March 31, in a preliminary injunction hearing, Armijo agreed.

While acknowledging that MacQuigg “has exhibited idiosyncratic behaviors,” Armijo ruled in favor of MacQuigg in all four factors she believed the case addressed, including free speech rights.

“A preliminary injunction restoring (MacQuigg’s) right to attend Board meetings and speak during the public comment segment should not impair the Board’s ability to conduct orderly meetings,” Armijo wrote.

As for the elephant mask?

“The Court concludes that the Board violated Plaintiff’s First Amendment rights by requiring him to remove his mask,” Armijo wrote. “To the extent that the Board relied on Plaintiff’s refusal to remove the mask as grounds for issuing the September 1, 2010 letter, the Board compounded its violation of Plaintiff’s First Amendment rights.

In addition to being a member of the APS board, Esquivel is an attorney who specializes in First Amendment issues.

“I’m very sensitive to how the law should work in terms of people having a right to express themselves, and I have absolutely no reservations about doing what we did as it pertains to Mr. MacQuigg,” Esquivel told the Albuquerque Journal in November 2012.

Despite the injunction allowing him to return to meetings, MacQuigg says he won’t be attending APS meetings soon because of the civil suit he’s filed, charging the board with violating his First Amendment rights of free speech and 14th Amendment due process rights. MacQuigg said the case in the midst of a settlement conference.

“All the parties agreed that it might be in everybody’s best interests if I didn’t go to a board meeting and stir things up in the middle of negotiations to resolve issues,” MacQuigg said. MacQuigg wouldn’t say how much money he’s seeking.

According to the agenda for Friday’s 7:30 a.m. school board meeting, members will consider gathering in executive — i.e., closed — session to discuss MacQuigg’s lawsuit.

As for MacQuigg’s legal fees, he said he has a pair of attorneys working on a contingency fee.

And how much has APS — a public institution funded by taxpayers — spent to fight MacQuigg in court?

APS Communications Specialist Johanna King told New Mexico Watchdog the estimated legal fees will come to “about $250,000.”

“They’ve always expected me to admit I’ve done something wrong and promise to never do it again,” MacQuigg said. “Our position is, I’ve never done anything wrong.”

Contact Rob Nikolewski at rnikolewski@watchdog.org and follow him on Twitter @robnikolewski