Sunday, July 26, 2015

County Must Face the Music Juries Hear

Two years ago I sat through a week-long trial involving Doña Ana County.

Witness after witness testified to discrimination, retaliation for reporting discrimination, or just plain meanness and bad management. Permeating the employees' testimony was an extreme and unhealthy fear that key officials could and would do whatever they wanted, without regard to fairness or legality. Other witnesses privately told me that the evidence at trial was just the tip of the iceberg.

The jury awarded $250,000 to Jorge Granados. Plus attorney fees. The jurors I interviewed were passionate that they were sending the County a message they wanted heard.

This month I sat through portions of a week-long trial involving Doña Ana County. Again witnesses testified to discrimination, retaliation for reporting discrimination, and just plain meanness. The case had been pending for four years and could have been settled years ago for $100,000 or so.

This jury awarded $1.45 million (plus attorney fees) to Kim Stewart. Afterward, jurors hugged her and thanked her. Twelve everyday people, given a sudden glimpse into how the County operated, were disgusted. They didn't believe the present and former county officials who testified. Awarding $1 million for “emotional distress” (beyond back-pay, doubled under the Whistleblower Act) sends a strong message.

Curtis Childress drew caricatures of ethnic minorities in a meeting with minority employees who complained.

Kim Stewart investigated Childress, pulling no punches, and was clearly willing to investigate other bad conduct by County officials. She was fired by HR Director Debra Weir. Earlier, then-County Attorney John Caldwell, who'd given her excellent evaluations in July, gave her quite bad ones in December, after she reported on Childress. Maybe her report on Childress was a coincidence, as the County alleged; I don't know; but twelve jurors didn't buy that argument.

Weir apparently ran HR in a way that sparked these two lawsuits and others. Chris Barela ran the jail that mistreated a prisoner so bad that another jury ordered the County to pay $20 million; and according to internal reports, he was guilty of other questionable conduct. Both are still there.

According to witnesses in the two trials, Caldwell and Weir and others did some pretty questionable things. In closing, Stewart's attorney pointed right at Weir and said she needed to go. The jury agreed.
County Commissioners did respond to the Granados verdict. There was an investigation; it became clear that the interim county manager was unlikely to be hired as the permanent manager; and they brought in County Manager Julia Brown. Caldwell left. HSSD Director Silvia Sierra left.

But someone at the County was too arrogant to settle the Stewart case when it could have been settled fairly cheaply. Someone supposed that the failed strategy from Granados – earnest testimony by high county officials and efforts to convince the judge to take parts of the case away from the jury on technicalities – would somehow prevail this time.

But Jorge Granados was not my enemy, or yours. Kim Stewart was not my enemy, or yours. Kim seems to be only the enemy of folks who would provide us a lousy county government. Our agents mistreated both of them. When they sued, maybe we could have gotten off on legal technicalities; but I wish we'd reached reasonable settlements, rather than paying outside counsel a bunch of money to fight them, then paying big judgments (and plaintiffs' attorney fees) anyway.

It's troubling to hear Julia Brown respond that witnesses perjured themselves and Stewart was just a vindictive malcontent. She wasn't around when these things happened. Maybe she should look a little deeper. Two juries and a former investigator shouldn't be dismissed lightly.
                                              -30-
 [The column above appeared in the Las Cruces Sun-News this morning, Sunday, 27 July, and will appear on the KRWG-TV website shortly.]
[Please feel free to review my initial post on the jury verdict in Kim Stewart's case, the Sun-News report on the Stewart verdict,  and/or my several posts reporting daily on the Granados trial  -- or search this blog for "John Caldwell" or "Debra Weir" for additional information.  Searching Jorge Granados yields all the columns/blogs regarding his trial, but they're not in order.]
[To the column as written I'd add a couple of points: (1) that I've met Kim Stewart and judge her to be pretty much of a straight,shooter, as people go; (2) that I have a bit of a bias in favor of juries; and (3) that  legal scholars and lawyers have recognized that a city counsel or county attorney may have a slightly more complex ethical position, and slightly different duties, compared with someone representing an individual or a private company.
That is, (1) to the extent that I've talked to Kim, (a) when I've asked her a question that could be answered in one way that helps her point-of-view on something or in another that's more truthful but less helpful to herself, I've seen her pick the more truthful answer; and (b) where there's independent evidence, it has tended to support what she says.
(2) Despite widespread criticism of the system, I believe juries tend to stumble into a correct result much more often than not.  (Disclaimer: the fact that when I practiced law in San Franscisco we handled quite a few big jury trials without losing one might have created this bias in me.)  I understand objections that the jurors don't see ALL the evidence because of the rules of evidence, that they can be swayed by the personalities of lawyers, and that in complex business litigation, particularly involving science and technology, they can't possibly understand all the issues.  Nevertheless, they seem to find what I might call the human truth.   Here, that means that whichever side should have won on certain legal issues in Granados or Stewart, Jorge and Kim probably did get screwed in a way they ought to be compensated by and the actors within the County ought to be punished for.  (By expressing doubt I do not mean to agree with the County lawyers that Judge Arrieta or Judge Beyer made errors, but only to say that even if that were technically true, the two juries seem to have come to the right results.  From what I saw, Judge Beyers did a fine and fair job.) Of course, what I may think or Julia Brown may think doesn't matter: the juries found what they found.
(3) Ethics are easy when you represent someone who got bitten by a dog or hit by a car, or a criminal defendant, or a company litigating an alleged breach-of-contract: you do the best you can for your client, within certain constraints such as not lying to the court or destroying harmful documents or helping your client commit a crime.  In theory, the clash of two such advocates on opposite sides produces a wonderful opportunity for the judge or the jury to see the actual truth, which may differ from either side's position.
But when your client is a county?  Do you represent the county?  The County Manager?  The Commissioners?  The insurer?  The people of the county? The in-house county attorney?  Or all of them?    What if a County Manager or County Counsel is so clearly implicated in the alleged wrongdoing that s/he may lack an objective view of the case or choose to ignore what's right for the county that employs him or her?  Do you still follow the Manager's or Counsel's instructions?  
These can be difficult questions to answer satisfactorily, theoretically or in practice.  Their relevance is that in closely observing a couple of county cases, and reviewing some others more casually, I'm seeing some questionable decisions get made.  By whom I can't say for sure.]


Sunday, July 19, 2015

Did Bigotry Sparkl Day-Care Center Close?


Many are saddened by the First Baptist Church's recent decision to close a day-care center so old that many parents taking their children there this year were taken to the same place during their own childhoods.

“We're devastated,” said parent Theresa Westbrock. “It was a special place.”

Many also express concern, mixed with anger and disgust, that the Church might have closed the center because of distaste for gay folks and fears that gay workers or gay parents might be forced on the center if it continued to accept federal funds.

Pastor David Burrows denies that the decision was related to the recent Supreme Court case and that “fear of homosexuals was not a factor.”

He says the decision was purely financial. He also says the center would have needed a new security system and additional personnel.

Angry parents aren't so sure. Pastor Burrows definitely stated that the Church should not be taking federal (or state) funds because then the government acquires a right to impose restrictions. Parents note that the money feeds kids, and that the day care center has been taking federal funds for quite awhile – so why quit now? As to the finances, parents say many of them volunteered to pay more than the present quite-reasonable fees; and they add that many of the additional costs expenditures are one-time capital expenditures.

Burrows reiterated to me that no Baptist church should be taking “state funding for any of its ministries.” To him, that's a line that shouldn't be crossed, and the existing situation was highly unusual for a Baptist church. Perhaps the fact that he's only been here a couple of months partially answers “Why now?”

Although the final vote by Church membership occurred the Sunday after the Supreme Court marriage decision, the Church administration had decided earlier to recommend the closing. Thus the recommendation could not have been a reaction to the court decision. (A lawyer might note that the Church administration could have foreseen the decision, as most of us did; but I'd give the Pastor the benefit of the doubt.)

Secondly, although folks are correct that many of the expenditures are capital investments, the Church's long-term plans include a possible move to Sonoma Ranch Boulevard within the next ten years. If such a move is indeed likely, capital investments to the present location are less appealing.
The Pastor also noted that while some folks volunteered to pay extra, some of the federal funds that would be foregone had gone to help parents who couldn't afford the full fee, let alone an increased fee.

The parents who think anti-gay feeling played some role in closing the center might be right; but the Pastor does marshal some pretty good reasons to suppose it was a minor factor (perhaps swaying some church members in the final vote) or none at all.

If so, I'm glad. It's sad to see this place close. I'd have been far sadder to learn that the church was disrupting so many families just to spite gay folks. I know that that kind of hatred exists here in Las Cruces, but I keep hoping it'll dissipate.

And it will. Fewer and fewer young people really care whether someone else is a different color, religion, or ethnicity or has different sexual preferences. In earlier generations, the Other was unknown and therefore feared. Now, even in small towns kids know kids who are different, listen to singers who are different, cheer for athletes who are different, or watch movie stars who are different. Logic would tell you, and the polls bear this out, that bigots could soon become an endangered species.
                                               -30-
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 19 July, and will appear later today on KRWG-TV's website.]
[I'd be interested in hearing from readers -- particularly parents or others who may feel the column treats the Church too favorably, or readers with comments on my thesis that bigots might be an endangered species.]

Friday, July 17, 2015

Jury Orders Dona Ana County to Pay $1.35 million to Kim Stewart

Like Yogi Berra said, "It's deja vu all over again."

Two years ago, just before July 4th, they tried Granados v. Dona Ana County.   I sat in pretty much the whole trial.  Allegations involved discrimination and retaliation.

The bottom line, as it seemed to a host of county employees and former employes I talked to back then, was that if you were in with the central little group that ran the place (Interim City Manager Sue Padilla, City Attorney John W. Caldwell, Human Resources Director Debra Weir, HHS Director Silvia Sierra) you could get by with all kinds of things, but if you spoke up against 'em, or they merely thought you might speak up against 'em, you were history.  From witnesses and others I heard more horror stories than I can recall now, and wrote a lot about it.

Jorge Granados won a jury verdict that seemed to send a real clear message to the County about what a dozen average citizens thought about what was going on.

And, to be fair, there were changes.  Padilla, Caldwell, and Sierra have departed.  There was a much-publicized investigation.

The past ten days, they've been trying Stewart v. Dona Ana County.  Kim Stewart is a straight-shooting investigator, a former cop, who was fired in January 2011.  Although her involvement as a party to the lawsuit limited our conversations, to the extent that I've talked with her I've found her truthful and credible; when she doesn't know something she says so; when the answer to a question isn't necessarily such strong support for her point-of-view, she answers anyway.  Not everyone does.

Stewart's case has been pending a long time.  Same lawyers as Granados had, Daniela Labinoti and Brett Duke.  Similar claims, involving clannish "I-got-your-back" conduct by the folks who ran the county.

Specifically, she alleged she was retaliated against for articulating problems, notably the discrimination allegations arising from caricatures drawn and words spoken by Animal Control Officer Curtis Childress demeaning minorities.

Again a bunch of witnesses testified that Weir and Caldwell weren't to be trusted and hadn't conducted themselves very well.  Again a hired-gun defense attorney for the county got beat.
Again, basically, when twelve average people spent a week immersed in the facts, they weren't too pleased by the conduct of Caldwell, Weir, and Padilla.  Again they awarded a former employee a bunch of money in order to send a message to the County.  (And they hadn't even heard from some of the folks who've told me additional tales of working at the County, but who were two frightened to let me use their names.)

This time I was in court only briefly, but I saw a few telling moments or points:
1. At one point Labinoti questioned Stewart about her evaluations.  She showed jurors an enlargement of the one for July 2010, mostly praising Stewart and giving her above-average numbers.  Then she showed the one for December 2010, following Stewart's report on Childress, with the numbers much lower and Stewart generally described as inadequate or below-average.  Several jurors near me showed little interest in the first evaluation, but perked up noticeably when they saw the second.  The change in evaluations spoke pretty eloquently to the problem Ms. Stewart was describing.
2. The County blamed Stewart for not reading Childress some extra rights investigators have to read certified police officers in New Mexico.  Stewart said she hadn't known he was certified, hadn't been told so.  County showed jury Childress's personnel file, certified as being as it was in August 2010, when Stewart read through it.  A document said Childress was certified.  County lawyer tried to make a big deal of this.
Unfortunately for the County, Judge Marci Beyer noticed that the 2010 file contained a 2011 document.  That kind of exploded the assumption (or certification) that the file was just as it had been when Ms. Stewart consulted it.   Ultimately the parties agreed to a special jury instruction that the file was not exactly as it had been in 2010 and the jurors could make what they wanted to of the presence of the certification, which Ms. Stewart testified she'd never seen.
Either they chose to believe that Stewart, who came across as an experienced and careful investigator and a truthful person, had seen no such certification or they declined to care about this issue.
3. As former Sheriff Garrison testified to his friendship and business relationship with Childress, and squirmed a little trying to explain a letter he'd written to the State, supporting Childress, that included some statements that weren't quite true, I watched the jurors.  Childress had drawn caricatures of fat Mexicans on a whiteboard in a meeting including Hispanic co-workers.  Stewart had called him on it.  Garrison had supported Childress, perhaps to the point of writing false statements to the authorities, including an allegation that Stewart had been fired for falsifying evidence or something.  Some of the jurors were Hispanic, and not all of them were svelte, and I was guessing they were everyday workers, not CEO's of corporations.  I did not think Garrison was making a great impression on them.
4. Nor did they seem taken with former County Attorney Caldwell's assertion that four discriminaton/retaliation complaints against Debra Weir were not cause for concern.  Maybe administratively that's true and fair, whatever the jurors or I may think.  I've never run a county.  But Caldwell, though precise and careful in his answers, was not a sympathetic witness.  Jurors didn't trust or believe him, and said so later, calling him "self-important."
5. I wasn't there consistently enough to judge, overall, the performance of the County's outside lawyer; but I can report what I saw.  
Proffering the personnel file as "certified to be as it was in 2010" with a 2011 document in it was a careless mistake.  It wasn't an unusual one, as evidenced by the fact that opposing counsel didn't catch it either.  It certainly wasn't any intentional effort to mislead the Court.  And the jurors may not have cared much about the allegation Stewart had failed to read Childress his extra rights.  But it was the kind capable of a "spillover" effect, damaging credibility not only on the specific issue but more generally.
In questioning Ms. Stewart, chief defense counsel adopted a tone and attitude of what I assume was meant to be righteous indignation about her greediness and untruthfulness.  That's a popular cross-examination tactic.  I've never understood why.  It risks coming off as contemptuous and arrogant if the jurors don't agree with you or don't yet see what you think they should see.  It can undermine your rapport with the jurors.  (For any future trial lawyer reading this, the phrase "more in sorrow than in anger" is a one to remember.  Far more often than not, if you don't try to feign hatred or contempt or righteous indignation for an adverse witness you believe isn't quite right about things, but ask the same substantive questions in a respectful tone perhaps projecting a little courteous concern that the witness doesn't quite see the whole picture, the contradictions or weaknesses in the witness's testimony, if they exist, will be made visible and loom larger than if your tone invites the jury to expect some huge diabolical lie. )  Sometimes the tactic is warranted, where the documents so clearly contradict a witness or you have solid reason for great confidence the jury won't identify with the witness; but that pretty obviously wasn't the case here.
But I didn't see opening statements, closing arguments, or the bulk of the trial, so these observations were based on a small sampling.  Too, I have no way of knowing how candid the in-house county officials were with the trial lawyers.  He may have been severely handicapped by a lack of candor.

At any rate, here's another predictable jury verdict requiring us to pay folks who were wronged by our county officials.  The majority of the money ($1 million) -- is for emotional distress.  There'll be an appeal, and the judgment amount will likely get knocked down a bit in settlement negotiations.  But that's not the point.   Last time round, county lawyers and officials raged that the jury was wrong and Judge Manny Arrieta was terrible; but even if the County could have and technically should have slipped through a legal loophole to a defense verdict concerning conduct average folks can plainly see was wrong, is that a wonderful situation?

With the Granados jury, which I interviewed right after the verdict, I was surprised by the passion they felt and the strength of their distaste for the county's favorite witnesses.
I'm told that this jury was even more passionate, and even more devastating in its comments on county witnesses.  Several thanked Kim Stewart for her work.  One alternate juror, who was dismissed once closing arguments were complete, immediately went over to Ms. Stewart and hugged her and thanked her -- which the bailiff said he'd never seen happen. 

This case could have been settled years ago for a fraction of what we'll now pay.  It wasn't.  I think there's a certain arrogance sometimes in public officials that gets in their way.  At any rate, here's one more case which the County contested vigorously (even counter-suing Ms. Stewart at one point) but which jurors saw quite differently from the way County officials and lawyers saw it.   Will we learn anything?






Sunday, July 12, 2015

How Will Chamber of Commerce's New PAC Affect Las Cruces?

Recently I noticed a puff piece on the Chamber of Commerce's political plans. The piece looked at first as if it were a newspaper article, an appearance which may or may not have been intentional, but it was pure rah-rah Chamber stuff. Headline: “Why it is imperative to support pro-business candidates, policies.”

“What's good for business is good for the country.” That phrase is most deeply associated with Presidents Warren Harding and Calvin Coolidge and the 1920's speculative stock-market madness that brought us the 1929 Crash and the Depression that followed.

Doesn't mean the phrase can't be true sometimes; but does mean we oughtta take that kind of thinking with the proverbial grain of salt, or maybe half a shaker.

The Greater Las Cruces Chamber of Commerce and its associates want to return Las Cruces and the County to a situation where when businesses say “Jump!” city officials ask “How high?” Toward that end, a three-year plan to run candidates, a new PAC, etc.

I'm for neither jumping on that bandwagon nor shooting out its tires sight unseen. Call me an interested bystander, eyes open.

The Chamber claims its political policies would increase jobs and pay, and help the local economy generally. But what does the record show?

Organ Mountains / Desert Peaks National Monument: studies and logic indicated that the new monument would likely have at least a marginal positive affect on the local economy, as monument declarations have done to varying degrees elsewhere. The Chamber opposed this positive step for the local economy, apparently based on ideology rather than facts.

Studies vary widely, but the consensus of economists seems to be that raising the minimum wage has little effect on the overall economy but tends to do more good than harm. Chamber opposed this step.
A better-educated work-force seems to be a major point on corporations' wish-lists when locating a factory. (So does quality of life, such as the Monument and other items.)

El Paso Electric is currently seeking a rate increase. It's not in the interest of citizens or small businesses here. Haven't yet heard the Chamber's position on that.

Thus it seems fair to wonder whether the Chamber's real policies even link up with its goal to improve the economy. (It seems the Chamber is against positive steps it doesn't happen to like, such as monument or higher minimum-wage, but in favor of those that it finds otherwise convenient. The determining factor isn't “does it help the economy?” but does Chamber leadership approve?)

Meanwhile, there are also a host of value judgments our citizenry must make that place “improving the economy” among other laudable goals such as improving equality, improving the quality of life here, protecting the environment, providing necessary services to the poor and the elderly, and conserving water.

Improving the economy is important – but may not be the top priority in all decisions. For example, the drought (and the changing climate) will force on us some very tough decisions. Even businesses may have to sacrifice. Difficult choices choices require recognition of business as one important factor, but just one. These include: public safety and health as against economy and convenience in construction; and the relative responsibilities of developers and public in many situations.

We should also note that some Chamber leaders had some involvement in the recent effort to recall city councilors (for reasons that kept shifting when none of the allegations worked very well). That effort, which ultimately failed, was one of the most cynical, destructive, and fraudulently-operated political efforts I've ever seen. Gotta hope it doesn't predict future political behavior by the Chamber's new PAC.
                                                    -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 13 July, and will appear on the KRWG-TV website later today.]
[This morning I'd like to feel optimistic, maybe because our desert has received a bunch of rain this week.  I'm hopeful the Chamber and its candidates and its PAC will wage a fair, honest campaign on the issues.  But I'd be a bit more optimistic if Chamber leaders would disavow what has gone on here recently, including the recall effort.]
[I should soften one point in the column: the Chamber's opposition to the higher minimum wage, while probably misplaced, isn't self-contradictory in the way that some other positions, like opposing the Monument, have been.  First of all, reasonable economists disagree on the probable overall results for the economy; and, secondly, even if the higher wage is better for the overall economy, the negative impact on businesses might be felt inordinately by small local businesses, rather than by big-box chains well-positioned to absorb a bit of extra expense.  Thus while I disagree with the Chamber leaders, I probably ought not to accuse them of contradicting themselves on that one.]
[And I do still think the publication ought to have made it clearer to readers that this was advertising, not news.  Apparently the Chamber gets a section every so often; and regular readers probably recognize it for what it is; but in better publications usually there's some clearer statement that such material is advertising.]


Tuesday, July 7, 2015

one new mexico morning - july

House Finch
It's nothing special, just a morning that's delightfully cool, yet clear.   A morning when I take the time again to be outside, watching and listening.  Strangely (for this time of day) we hear a bunch of coyotes howl from not too far away; and somewhere very close two roadrunners are calling softly to each other.
Within view, various hummingbirds sporadically contest the near feeder, rest on the ocotillo, or even explore the hesperaloe.   And as we sit, not moving too much, a white-winged dove ventures to the bowl of seeds a few feet away.  The occasional black-throated sparrow stops by for a drink.   In the berm around the ash, quail gather shyly.  Doves and curved-bill thrashers attack the feed-block or stand like sentries on the top of the house.
Above, the moon looks like a smallish craft crossing a vast, blue sea in search of a safe harbor along the shore of one white continent or another.
It's just a quiet moment at home with our companions, who do not speak Human.  But recently I've too often spent mornings indoors, working or playing at this or that.  To be here, aimlessly watching and listening, with my notebook on the table in front of me but without writing much in it, is refreshing.


  Perhaps tomorrow morning, instead of sitting at the table, I'll just move a chair over into the shadows near the hesperaloe and see if I can get a better shot of one of the hummingbirds over there, rather than visiting the ugly feeder.
Hummingbird Visiting Hesperaloe

Usually the white-winged doves won't visit this shallow bowl of seeds when I'm nearby at the table.  I've seen 'em fly up from below, prepared to land here, then jam on the brakes and retreat as comically as animals in some Saturday morning cartoon show for kids.  But this morning they are visiting it, one at a time. 




Friday, July 3, 2015

Being an Eagle Ain't All Fun, I Guess



I had just lain down for a nap when Dael said I might want to glance out my window.

I obediently stood up again, opened the window above my desk, and saw a huge, bedraggled-looking golden eagle perched on the telephone pole.

It had already been a pretty neat day. After watching nature's light show yesterday evening, we awakened this morning to a gentle rain. Thanks, El Niño. It rained well into the morning, at times hard.

I went outdoors.  As I walked quietly to the west wall of the house with my camera, the eagle – looking surprisingly unkempt – was getting a lot of audible complaints and an occasional attack from a force of mockingbirds and western kingbird.

Ironically, Dael had spotted a roadrunner enduring a similar reaction from the locals a few days ago. Then we saw another roadrunner on the feed-block yesterday. The previous evening our neighbor Dave, who'd made us a rattlesnake-catcher years ago, suddenly needed to borrow it.  A young rattler near their garage.  Dave and Dael went off in the jeep to let the young rattler go a little further from human habitation.

Now as I started shooting I heard Joan announce that another rattler was discourteously close to their back porch. This one was older, swollen (probably from eating recently), and more mellow (possibly from having eaten recently). Dave and Dael took him to join the other one.

I concentrated on the avian drama. I wasn't going to shoot any great winners, partly because it was still largely overcast (limiting available light far more than usual, which makes it hard to shoot very fast exposures) but birds' flapping wings require a fast speed. But I was curious. I'd heard of smaller birds chasing away hawks or eagles, but this time I had a front row seat.

The birds, mostly mockingbirds, chattered at the eagle from nearby wires. Every so often they flew at him, usually one at a time but occasionally two or three. At one point there were nine or ten smaller birds ranged along the wires leading to his perch. A curved-bill thrasher, a phoebe, and a house finch egged on the mockingbirds and kingbirds.

The eagle suffered it. He was aware of them, and if someone approached from an unexpected angle he turned his neck to look. But he didn't seem particularly worried. He didn't try to harm any of his harassers. He didn't fly away, for quite awhile. (In some of the photos he looks as if he's hanging his head in shame, like an early American placed in the stocks, or the smaller birds seem particularly proud of themselves, perhaps like 19th-Century Indian youths “counting coup.” But to say so is mere anthropomorphizing. The eagle damned sure ain't ashamed of himself, although with the Fourth coming tomorrow you'd have supposed he'd neaten up his feathers a little.)


One bird pursued him awhile, then gave up.
                                                 -30-


























Tuesday, June 30, 2015

Utilities, Regulators, and Us


Thinking about El Paso Electric, it helps to step back and contemplate the situation of electrical utilities generally.

These utilities are granted a monopoly on a valuable commodity, they're regulated by the states. Most function under somewhat backward laws that enable them to profit only by buying or building things, which often pressures them to solve problems in otherwise unnecessarily inefficient and (for us) expensive ways.

Facing environmental concerns and new alternative forms of energy, the utility companies will soon enter their death spiral. [Industry term, not mine.] Costs of solar panels have declined 75% decline in just the past six years. Most states have “net metering” laws letting solar-powered households sell excess electricity back to the grid at retail prices. Arguably, utilities are selling saddles and surreys just when horseless carriages are getting reliable.

Even if you doubt that all the poisons we're putting in our atmosphere and water will really hurt anything, why would you want to stick with gas-fired electricity plants in any numbers once solar is a lot cheaper – not only cleaner, safer, and more natural?

Currently, utilities vary widely in their reactions to our changing circumstances. Many, of course, choose to attack solar power as an enemy and try to delay progress through TV ads, backward laws, and immense investments in electing friendly faces to the regulatory commissions. Arizona's power companies tend to exemplify this approach.

By contrast, Vermont's Green Mountain Power listens to its customers and recognizes that they want to do what's environmentally sound if it won't cost them a bunch more money. GMP now offers “energy makeovers” (more insulation, new ways of heating home and water, L.E.D. light bulbs, and a small solar array) that are financed through the homeowners' rapidly falling utility bills. Vermonters are radically reducing their energy footprint not necessarily because they're worried about climate change, but to save money.

We need to recognize that times change and technologies develop. There was a time the public gave railroads everything they wanted, because the country needed railroads. Decades later, that wouldn't have made sense. Similarly, decades ago we needed utilities to build a dependable electrical system, and the best technology was gas-fired plants. Now we need (and can develop) systems that are more energy efficient and more economic.

In New York, a reform effort sparked by Hurricane Sandy led to the appointment of an energy czar who developed a program of incentives called Reforming the Energy Vision (REV). Where Con Ed had initially planned to build a billion-dollar substation to meet growing electrical demand in Brooklyn, the utility instead will encourage installation of solar panels and new storage batteries, and will pay customers to limit usage during peak hours. That'll save many millions of dollars. Although REV is an unproven work-in-progress, New York is at least asking the right questions.

There are two keys: technology and regulatory vision. As technology improvements help us move from “Can we get the homeowner to invest some money to help the environment” to “Can we educate the homeowner on how to save money and help the environment,” we also need our regulators to deal fairly but firmly with electric utilities. In part, that means developing programs that eliminate the strong financial incentive for utilities to trick us into approving an expensive new gas-fired generating plant we'll be stuck paying for over the next half-century. The rules should encourage and reward best practices by both the utility and the homeowner or business.

Unfortunately, New Mexico's current governor ain't likely to be in the market for sensible and creative ways to get constituents the best possible value from their electric utilities.
                                                    -30-

[This column appeared in the Las Cruces Sun-News this morning, Sunday, 5 July and will appear later today on KRWG-TV's website.]

[Two or three points stand out: that the electric utilities are on the wrong side of history; that too many of the utilities feel that they're in a battle to the death against renewable energy sources; but that much of the blame for our current situation lies with legislators and regulators, who've too often proved lazy, corrupt, and/or unimaginative and who've supported or allowed a system that encourages utilities to make wrong decisions.
I discussed that last point adequately in the column above and two weeks ago.  (Page down through the posts on the eagle and the Pope or click here to see the column from two weeks ago.) 
But the wrong-side-of-history issue is worth contemplating.  Reminiscent of the owner of a town's biggest livery stable manipulating the vote against putting in a paved highway that would encourage cars, expediting the obsolescence of the horse.
There isn't any perfect analogy.  Railways could use their political power (and their bought-and-paid-for senators and representatives) to slow down any governmental encouragement of horseless carriages; but trains and cars didn't have to use the same track.  In most fields, monopolies are forbidden.  Utilities appear uniquely positioned to hamper our society's freedom of movement toward a better future.  At minimum they can and will charge us tolls in the millions or billions of dollars.  Saddle-makers who foresaw the future couldn't sabotage development of the automobile nearly so well, nor could chautauquas prevent the spread of radios, mass magazines throttle development of television sets,  or the local iceman commit us to a 50-year contract for ice just as magazines began advertising refrigerators (or ice-boxes).  Nor could typewriter manufacturers or slide-rule makers stop the spread of computers.
But utilities, given a sleepy public and substandard regulators, could do a lot to make us pay through the nose for what we don't need, and keep doing so long after it's clear to everyone we don't need it.
And: a sleepy or indifferent public largely guarantees substandard regulators, because the utilities always keep their eyes on the ball.]