County Commissioner Harry Montoya could have faced a public reprimand or worse for his actions over the past two years if a rule he is proposing now had been in effect then.

County Attorney Stephen Ross said Tuesday that Montoya has suggested adding a new section to the county's draft code of conduct that would prohibit commissioners from directing the actions of county staff.

But e-mails between Montoya and former Public Works Department Director James Lujan reveal that the commissioner had been asking Lujan to perform specific tasks for years, some of which appear to violate existing rules regarding the separation of private and public interests.

Lujan was fired in May in the midst of an investigation into allegations of fraud and theft in the county's Public Works Department. Among the issues being investigated in the probe are the county's paving of a church parking lot in Nambé and work done on at least six private roads in Montoya's district.

Allegations that a company contracted to do roadwork for the county got paid for work completed by county crews and that county employees may have known about and benefited from the fraud are being investigated by the special task force formed by the Sheriff's Office.

The draft code of conduct — which sets penalties that include a $300 fine, a public reprimand and referral to the District Attorney's Office — is being developed in response to the investigation.

E-mails exchanged between Montoya and Lujan over the past two years reveal that Montoya regularly asked Lujan to have county crews do work on private roads, acequias and other noncounty property such as cemeteries, Pueblo land and schools. The e-mails indicate Montoya asked Lujan to schedule such work with full knowledge that the jobs were being performed on private property.

In March of 2004, Montoya asked Lujan to schedule the grading of a private section of Boneyard Road in Arroyo Seco in response to a request from Annette Romero.

"We scheduled this," Lujan replied in an e-mail. "This is part of Boneyard Road that is not County. Harry, we should look at taking this in (as a county road) before you leave office. Thanks, James."

Montoya also approved a request from El Rancho resident Dan Quintana that the county spread sand and fill dirt over an arroyo running through the El Rancho Catholic Cemetery and place base course (crushed asphalt) at the entrance to the cemetery.

Quintana said Wednesday that the sand and dirt needed to complete the work was donated by San Ildefonso Pueblo, and county crews hauled the materials to the cemetery and completed the work over two years.

"(Montoya) said he would try to do it at times when they are not busy, little by little," Quintana said. "One year they hauled about 10 loads, the next year about 15 loads." Quintana said it took about 35 truckloads to complete the project.

The e-mails indicate Montoya also directed Lujan and other Public Works employees to use county equipment and crews to do work on acequias in his district on numerous occasions. On one occasion, the work was requested by Montoya's father.

"My dad, Juan (phone number), called to ask me if we could do the ditch as we did last year," Montoya wrote to Lujan in March 2009. "Please call to schedule. Thanks, Harry."

Several of the requests for work on acequias came from David Ortiz, chairman of the Pojoaque Valley Irrigation District.

In one case, Ortiz requested county assistance to help the Acequia de José Gabriel Ortiz "repair their diversion that was damaged by recent flooding." That was on Aug. 4, 2008. On Aug. 27, Ortiz wrote Montoya again: "Hermano Harry, This acequia is again in need of County assistance to fix their diversion of the river. I would appreciate it if you can again help them. The contact information is the same. Thanks, David."

Some e-mails between Montoya and county staff indicate they weren't sure if the county had "jurisdiction" to do work on acequias. The legality of this remained unclear Wednesday night.

But Ortiz, who has headed the irrigation district since 1978, said that as long as he can remember, "even before Montoya's tenure," the county has provided assistance to the acequias.

Ortiz said he normally requests assistance from the district's commissioner through an e-mail or phone call. Then a county employee and ditch foreman visit the area together to determine what needs to be done.

"The crews come out afterward and make the repairs," Ortiz said.

Ortiz said he doesn't believe the practice violates the state's anti-donation clause because the acequia associations are quasi-governmental entities. "It's one government helping another government," Ortiz said. "It's not benefiting any private individuals."

County spokeswoman Kristine Mihelcic recently told the Albuquerque Journal that the county has no formal policy on aiding acequias, but does not generally provide materials, county equipment or labor for their maintenance.

Montoya declined to answer questions on the direction he gave to Lujan, or his suggestions regarding the new code of conduct. He said in a voice-mail message that he would provide a written statement via Mihelcic. But the statement was not produced.

Santa Fe County has instituted a new procurement policy since the sheriff's investigation began. It states that constituent requests for maintenance, repair, construction or reconstruction should be routed through the constituent services liaison for the appropriate district and that the liaison must "ensure that the request meets constitutional scrutiny."

The County Commission is scheduled to hold a public hearing on its proposed code of conduct Tuesday.

Contact Phaedra Haywood at 986-3068 or phaywood@sfnewmexican.com.