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SAN MARCOS ---- A Carlsbad man is asking the county grand jury to investigate whether three council members illegally reached a consensus before a formal vote on plans to build a Wal-Mart in south San Marcos.

In his complaint, Paul Stailey notes that Mayor Corky Smith, Vice Mayor Mike Preston, Councilman Lee Thibadeau and their political consultant, Jack Orr, who is also representing the retailer, met before the council's Aug. 12 vote to approve the store.

Stailey charges that those meetings, and the fact that Wal-Mart didn't meet with the other two members of the council, are evidence that Smith, Preston and Thibadeau had decided to support the retailer's plans and that Wal-Mart knew it had three votes.

Stailey lives just across the Carlsbad border from the site where the store is proposed at Rancho Santa Fe Road and Melrose Drive. Wal-Mart opponents were successful in forcing a referendum on the vote, which will go to San Marcos voters March 2.

Stailey's complaint is similar to one Wal-Mart opponents filed before the council's August vote. The Fair Political Practices Commission concluded that month that there was insufficient evidence to investigate that complaint.

Preston predicted that the outcome of Tuesday's complaint would be the same. "I think they'll get the same result. Different venue, same result," Preston said.

He, Orr, and the other council members involved have repeatedly denied reaching a consensus before the vote.

Stailey said Tuesday that he decided to file a new complaint because more evidence of wrongdoing emerged at the council meeting, and because there is "a continuing relationship between these councilmen and Mr. Orr."

"If what they did was fine, so be it, but where there's smoke there's fire," Stailey said. "I think enough was said at the council meeting that at least warrants an investigation."

He said of particular concern is that Wal-Mart officials did not meet with council members Hal Martin or Pia Harris-Ebert. Both voted against the store. He also said that at the August council meeting, Smith asked Preston whether he had seconded the motion to approve the store. "No one seconded the motion, yet he was fully aware before the vote that Mr. Preston was voting with him," Stailey writes.

Preston said that council members often ask for a motion or second to be repeated. "That's a major conjecture," he said of Stailey's assertion.

He did say that Orr's decision to arrange meetings between Wal-Mart officials and just three council members was bad public relations.

Wal-Mart spokesman Pete Kanelos said that there was nothing unethical or illegal about the meetings. He said that Wal-Mart officials didn't meet with Councilwoman Harris-Ebert because she didn't appear to support the store and didn't have a meeting with Hal Martin because he had met with Brookfield Homes, the developer of the community where Wal-Mart is planned.

Martin said he did meet with Brookfield Homes' David Poole, but that Wal-Mart should have met with all council members. "They didn't need to, obviously," he said, adding that he agreed with opponents of the store that the council majority had their minds made up ahead of time.

But the other two council members named in the complaint are as adamant as Preston in denying the charges.

"They don't have a leg to stand on, as far as I'm concerned," Mayor Corky Smith said. "I think they're goofy. They're just reaching for something that wasn't there."

Thibadeau said "desperate people do desperate things... their whole campaign is anti-council."

Complaints to the grand jury are confidential and information about when individual cases will be heard is not made available to the public, a spokesman from the grand jury office said Tuesday.

Contact staff writer Katherine Marks at (760) 761-4411 or kmarks@nctimes.com.