Independent may challenge judge's ruling
Newspaper, city fued over ads

By Zsombor Peter
Staff Writer

GALLUP — What to do when the only newspaper authorized by state law to run your ads — ads the same law says you have to run or risk being sued — turns you down?

When Gallup Independent publisher Bob Zollinger refused to run some City of Gallup ads a few weeks ago, city attorney George Kozeliski asked the district court to put the law on hold. The city got its way, but Zollinger believes the court made a mistake and may challenge the decision.

All the city had to do, said Zollinger, was pay its tab.

But as far as the city was concerned, it didn't have one.

According to the lawsuit Kozeliski filed with the McKinley County District Court Jan. 20, the city attorney dropped off a pair of ads for publication in The Independent in mid January. Zollinger said he wouldn't run the new ads until the city paid what it owed on previous ads. The city thought it had already paid a fair price for the old ads, and refused to pay more. No more money, Zollinger told the city, no more ads.

That wouldn't have put the city in such a bind if The Independent weren't the only paper qualified under state law to run its legal ads. So, with legal ads needing publication, and the Independent making unreasonable demands to publish them, Kozeliski felt, he had no choice but to turned to the courts. Kozeliski asked that the city be allowed to run its ads in the Gallup Herald, a weekly paper that publishes in the area but hasn't been around long enough to qualify under state law to run legal ads.

On Jan. 26, District Court Judge Grant Foutz gave the city its wish, but added that it would have to run its ads in the Albuquerque Journal as well.

Kozeliski says Foutz's decision will cost the city more than usual to run its ads, but still thinks it's the best or least worst option.

For The Independent, meanwhile, the loss of the city's business could cost it thousands of dollars worth of ad revenue a year.

Left out
But is Foutz's decision fair?

Because Foutz never held an evidentiary hearing where The Independent could give its side of the story before he made up his mind, Zollinger believes he has a chance to challenge the decision.

Zollinger wouldn't say for sure if he'll do so, but said he was talking over the option with the paper's attorneys.

"It is unusual and it is not clear why the Gallup Independent was not notified," said one of those attorneys, Pat Rogers.

If The Independent does get its day in court, will it make a difference?

While Kozeliski's petition doesn't get the facts wrong so far as it goes, said Zollinger, it doesn't go far enough.

Kozeliski argues in his petition that Zollinger's failure to warn him that the January ads would not be published cost the city time and money. What the petition leaves out, says Zollinger, is that the city already knew his position: if you don't pay us what we say you owe us, we won't run any more of your ads.

'Blind-sided'
In an interview with The Independent Tuesday, Kozeliski conceded that Zollinger had made the point before. Because the paper didn't turn down the new ads when he handed them over in January, and following a subsequent conversation with the publisher that ended amicably, Kozeliski insisted he was still "blind-sided."

Kozeliski knew that, in Zollinger's opinion, the city still owed The Independent money. But why wouldn't the city pay up?

Because the city, said Kozeliski, was being ripped off.

In one case, he said, the city was quoted $1,043 to have an ad published. When the bill arrived, however, it was for $4,000.

Zollinger wouldn't call the $4,000 price gouging, but he wouldn't call it the paper's standard rate either.

What he does call it, though, is fair.

Understanding why and getting at the roots of the city's lawsuit means going back a little further, back to the early part of 2004 when the Independent was getting ready for its new press.

Before the press arrived, the paper needed the city to rework some of the electrical systems on its property. The city charged the paper $9,000 for the work, and the paper paid.

It was only afterwards, however, in May of 2004, that the City Council approved the utility rates the paper was charged.

Because the Council hadn't approved the rates yet, Zollinger insists they're not legal and that the city owes the paper its $9,000 back.

"The City of Gallup for 20 years has always given away electrical work," said Zollinger, so why single out a few companies?

"What they're saying," he added, "is that any clerk at the city can charge any rate they want."

Arbitrary billing
City Manager Eric Honeyfield admits the city was charging arbitrary utility rates under the former utilities director. But when Lance Allgood filled the post, he said, that changed, and it's why the Council finally approved a new policy standardizing its rates in May.

But with state laws forbidding public donations firmly in place, said Honeyfield, none of that makes the Independent's $9,000 bill any less legal.

"With a policy or not, we are not allowed to give away things for free," he said, including electrical work.

What the city charged the Independent, Kozeliski added, was actually less than half of what the work actually cost the city.

Honeyfield and Zollinger tried working things out in private, but their meetings didn't go so well.

"He goes belligerent so quickly, it's tough to sit down like this and hash things out," Honeyfield said of Zollinger.

Zollinger believes the blame should go the other way. He said Honeyfield told him to "go to hell" when he asked for the $9,000 back.

"So when they ran some ads with The Independent, I said, 'To hell with you, these are your rates.' When Honeyfield told me to go to hell, I just returned the favor," Zollinger explained.

If the city can charge arbitrary utility rates, Zollinger reasons, the Independent can charge whatever ad rates it wants. If he can't get the city to give the paper back the $9,000 directly, he'll get it back by charging the city extra to publish its ads.

That plan might have worked if the city didn't have another paper to turn to. But thanks to the Gallup Herald, the Albuquerque Journal and Judge Foutz, it does.

Although Zollinger believes he might have something more to say about that, the city considers the matter over with.

"I guess we're just going to go our separate ways for now," Kozeliski said. "If (Zollinger) wants to start taking our money, we'll start running our ads."

If Zollinger is so convinced the city councilors owe the Independent the $9,000, Kozeliski suggests he sue them for it.