Sunday, February 7, 2016

Update on Earlier Sunday Columns

This column is an update on several past columns about matters as to which there have been recent developments worth mentioning.

A December 2014 column concerned initial efforts to build a non-profit community radio station in Las Cruces. Since then, it has acquired a name (K-TAL, aka “Que tal?”); a studio location; some money to help get on the air, and a lot of new volunteers. At a recent meeting we heard from many talented and enthusiastic people who want to help make this happen. Some of them have extensive radio experience or other great backgrounds. The next few months should see us acquiring the necessary equipment, setting up the studio, raising more funds, getting some interesting shows from elsewhere, and starting to train local folks to create and air a wide variety of interesting shows. 

An October 2015 column outlined why we should set up a Citizens Advisory Committee (CAC) concerning the detention center. Recently the County Commission directed the County Manager to put together a proposal. The CAC must be independent of the Commission and seen to be independent. I''m hoping that in addition to Commission appointees we see members appointed by LULAC, perhaps the NAACP, the mental health treatment community, and others. If you have suggestions, write Julia Brown or watch for announcement of a work session on the subject.

A more recent column hoped the authorities would act appropriately to evict Bundy and friends from the Malheur refuge in Oregon. To some degree, that's happened. Sadly, one fellow was shot when he reached for a pocket with a gun in it, although I've wondered if he meant to hand in his gun but just didn't make that clear to the authorities. But he'd said he wouldn't be taken alive. Those captured should face appropriate charges.

Overall it's a little depressing to glance back. Columns about lawsuits by former County employees (two big jury verdicts) and by alleged victims of detention center mismanagement (e.g. Mr. Slevin)? More such lawsuits are coming, with one set for trial in March, I think. Some of the alleged bad actors seem to find a strong champion in Julia Brown. I don't know why. I've written columns about alleged misconduct by Detention Center Director Chris Barela; but while charges have been filed and a grand jury will take a look at him shortly, delay let the statute of limitations run out on some charges. (I state no conclusions about whether or not he should or will be convicted. Depends on the evidence. He's got a real good defense attorney.)

I've written a lot about what seems to me excessively acrimonious politics, and about the influence of outside oil and gas interests, and even the Koch Brothers; but although the dishonest recall campaign failed a year ago and PAC attacks on Mayor Miyagashima failed to dissuade many citizens from voting for him, money in politics is a problem we haven't solved and probably can't; and the acrimony grows to absurd proportions with the national examples of Donald Trump and the other clowns vying for the Republican Presidential nomination. Politics is way too influenced, if not controlled, by money.

And HJR9 could help the corporations destroy the U.S. as we know it, by triggering a potentially disastrous constitutional convention orchestrated by ALEC.

And one very sad local note: I've written columns praising Chope's. One included an image of the matriarch, Lupe Benavides. A great lady. Her death this week is sad for Chope's, for La Mesa, and for all of us. 

But her life exemplifies how much good one person can do.
                                                          -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 7 February, and will appear later this morning on the KRWG-TV web-site (News --> Local Viewpoints).]

[Guess I should add two updates from this morning's Sun-News: the County Commission will vote Tuesday morning on a resolution asking County Treasurer David Gutierrez to resign, as my previous column  did; and February 16 will be Miguel Silva Day in Las Cruces and probably Dona Ana County.  There'll be a ceremony at 10 a.m. at Klein Park.]

[It's a beautiful, sunny morning here.  Cold, but warmer than it has been.  Bird-baths only lightly frozen this morning.]
          * * *        ** *        * * *        * * *        * * *        * * *        * * *        * * *
          strong morning sunlight.
          cat springs, mouse dead.  soon the cat
          will follow the mouse
          -- as will i, later the sun.
          who will notice our passing?

Sunday, January 31, 2016

Open Letter to County Treasurer David Gutierrez: Please Resign!

Dear David Gutierrez: 

I respectfully request again that, for the benefit of Doña Ana County, you resign and get treatment.

As County Treasurer you asked a woman working for you to have sex with you for money. You apparently knew, or should have known from prior incidents, that she wasn't interested in sex with you. The County Commission and the County Democratic Party each invited you to explain, then censured you. You also refused to discuss the incident with me. 

Your conduct was not manly or strong. Any grown man would know that you were not acting in a way that would entice a reluctant woman into bed with you. So sex wasn't your intention.

Your conduct was weak and sad. Like most who sexually harass others they in their power, you didn't expect the victim to agree to some delightful dalliance. Requesting it would make you feel a bit more powerful, rather than an insecure fellow trying to shore up your sagging self-confidence. Causing her some distress would be fun, like spraying water on a cat, and you figured she'd be too frightened to complain.

You should resign not merely because your conduct is malfeasance for which we could recall you. (You've arrogantly refused to attend required sexual harassment classes. Worse, you've fired Rene Barba. Barba, your deputy, had properly passed on to a higher authority the lady's complaint about you. Firing him for that would be wrong – and could spawn another lawsuit. His refusal to agree to hire you as deputy if he is elected Treasurer speaks well of him. With your record, HR probably couldn't approve such a hire anyway. Particularly after you spurned the required classes that might have helped you. 
 
You should resign not merely because your conduct embarrasses you and the county. You should resign not only because people will inevitably associate you with the Democratic Party, which you supposedly support but which had nothing to do with your conduct and even tossed you off its county central committee.

You should resign not merely because of the lawsuit (on which we'll pay the insurance deductible); and the probability that your infantile inability to control yourself means we're vulnerable to further lawsuits the longer you stay in office. 
 
You should resign not merely because staying in office taking our money will delay your recognition of your need for treatment. (“Treatment?” you ask scornfully. “But I'm a successful politician and just a healthy, lustful male besides!” But the fact is that based on what you've admittedly done, and assuming the truth of just a fraction of what others have reported about your conduct in office, you are a pathetic fellow. Sorry to say it; but your request to Mr. Barba shows you just don't get it.)

You should resign to get your own life in order. You can't be comfortable being the butt of public ridicule. Or of rude curiosity about what you might have done while watching video (taken from above) of your cashiers and their cash-drawers. Out of office, you could concentrate on the self-examination we all need to do at times, and maybe put your life on a more solid foundation.

I hope we've progressed far beyond the time when anyone with power could do as he liked: Anglos exploiting Hispanics, whites enslaving blacks, men abusing women, employers nearly enslaving employees. The less powerful party now have certain rights to be free from personal humiliation, insults, or sexual exploitation. Your conduct was plain wrong, Sir.

You should resign as a way of casting your vote for a better world.
                                                       -30-
[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 31 January, 2016, and will also appear on the KRWG-TV website later this morning at News>Local Viewpoints.

[Reading what I've written, I realize it's too unkind to Mr. Gutierrez.  At the same time, the closer I look into this, the clearer it is that he just doesn't get it.  He doesn't understand why bullying employees should be such a big deal, when he's good at getting people to vote for him.  He not only refuses to resign (which we knew) but is scheming to extend his county paychecks by getting the next Treasurer to employ him.  Until, probably, he himself could run again.    That justifies speaking bluntly to him.  So does the response I got talking about some of this: many women approached me later to thank me.  As one pointed out, whenever you don't stand up against this sort of thing, you're helping perpetuate it -- in particular, the attitude that this kind of misconduct is just boys being boys, and somehow acceptable.   As another said yesterday at the Farmers' Market, "As a woman, it just hurts that he's still there."   Well, as a man it hurts that he's still there, that we're still paying him.]

[My earlier column about Mr. Gutierrez appeared in September 2014.  I did then confer with authorities, and it appears that the way New Mexico's solicitation of prostitution statute is written, it would be difficult or impossible to convict Gutierrez on the criminal charge.  Recalling him required filing a court action, then gathering a great number of signatures.
I regret that we haven't recalled him.  I blame myself in part.  I did push some people to join in taking action.  The county Democratic Party tossed him off its Central Committee and authorized starting the recall process, but then . . . got too busy, I guess.  Nor did other groups step up.  I should have started the necessary court action myself.   Fortunately he's term-limited.  He's gone December 31.  He's too costly: Ironically, we may see a contest for Treasurer in which both candidates are former Chief Deputies whom Gutierrez mistreated and then forced to resign.  One sued and won a settlement.  The other may.  The sexual harassment victim's suit settled this month for $68,000.   This clown is getting expensive.  Anyone running for County Treasurer this year who hasn't been fired by him should pretty much have to sign in blood that he or she won't appoint Gutierrez as Deputy.]





Saturday, January 23, 2016

Death Saddens and Instructs Us

Forever, he is bicycling past me, wearing a huge, goofy hat and that huge, infectious grin, as if it is always a beautiful Saturday morning in Las Cruces. He is waving. I can't quite hear what he's saying, but his joy needs no words.

He was a playful man. His grin really was infectious. He brought to Dick and Sherry Thomas's 50th wedding anniversary masks, funny hats, false noses, and costumes – and a photo booth in which guests could take their own pictures. This generated much silliness – and strips of snapshots that still make us smile. Saturday mornings at the Farmers' Market, he used to ride up to us, with unruly hair, a funny hat, and colorful striped socks. Then he didn't, any more.

He was a serious man. He served on both the county commission (as a Republican) and the city council (while a Democrat). He served the public well. He cared – about people and government. He was also a dedicated member of the dancers out in Tortugas.

He was a troubled man, in pain. He flew like a condor coasting on wind currents high above us, then fell into dark, deep pits of depression with steep walls. He suffered from bipolar disorder. He still called himself an alcoholic, although he hadn't taken a drink for a very long time. Asked how he was, he invariably answered, “Blessed.” His tone and steady eyes gave the word a little extra stress, as when someone depresses the piano pedal that elongates a note. He was grateful to feel blessed. 

He was a family man. I saw it in his face when his brother, former mayor of Deming, was dying of cancer. He loved and admired his brother, and was deeply affected by his brother's death. He also had a strong awareness of the past. He co-founded the Day of the Dead celebration in Mesilla and often made altars to honor those who'd gone before. 

I enjoyed our lunches, at which we laughed and talked intensely. We didn't always agree, but who does? Now, of course, I wish there had been more lunches. I wish that after the election I'd tried harder to spend time with him. 

Many of us are wandering around in a daze, full of grief and regrets.

We ask “why?” but even his closest friends don't know. Yes, he was emotionally fragile. Yes, he took losing the mayoral election hard. We citizens discuss elections, respecting both the winning and the losing candidate; but to the loser it's necessarily personal. It's not Houston's football team losing to Kansas City. It's you, alone, boldly putting yourself out there, then feeling that your community has rejected you

The loss hurt; but he seemed to be slowly coming to terms. Then everything overwhelmed him.
Some of this doesn't usually go in eulogies; but it's real. It was part of him. Illness shouldn't define his life, but neither was it shameful. Others should be as open as he could be. 

He was a brave man. To become the wonderful guy and caring and successful public servant he was, he overcame extra hurdles. Insidious ones. That magnifies his achievements. Maybe, too, his struggles strengthened his compassion for others. 

Our regrets can't help him; but could each of us be a little more perceptive, a little more proactive, a little less shy with other friends and co-workers whose hold on life is fragile?
Maybe that's what he's saying from the bicycle: “I'm at peace, but a little extra warmth could help others you know who are in pain.” 

Thank you, Miguel!
                                                       -30- 
[The column above is slated to appear in the Las Cruces Sun-News tomorrow morning, Sunday, 24 January, and will appear later in the morning on the KRWG-TV website under News-->Local Viewpoints.]

[ I wrote this pretty much immediately upon hearing the sad news.   Although we tinkered with it thereafter, I felt very strongly that it should be as it is -- but worried that friends or family who thought otherwise might feel hurt or offended.  As I mention in the column, I not only care about accuracy but don't see the sorts of struggles the column alludes to as shameful or unmentionable.  If anything, recognizing them should increase our respect for Miguel and perhaps might help friends make sense of what he did.]  

[Not mentioning Miguel's name (except his first name in the last line) was also intentional.  In part, I felt that not having to mention it was a sign of respect.  Everyone (in our County, at least) will know whom I'm talking about without my having to identify him.]

[He was a great guy.  We also disagreed about a couple of political issues.   We both loved Las Cruces -- and also the Tortugas danzas -- in our different ways and based on our different experiences and relationship.  Above all, I treasured someone who really appreciated people, spent a lot of time trying to improve local government here, and could talk seriously with you or make you laugh.

[I should also mention that Rob Yee and Kari Bachman climbed Tortugas Mountain and set up an altar there to Miguel.  We think he would have liked that, given his own preoccupation with the dead, and his having built more than a few altars himself.  I mention it partly to make sure that folks mourning him are aware of the option (for expressing their grief or respect) of climbing up there and visiting the altar, perhaps adding to it.]



Sunday, January 17, 2016

Intra-County Squabbles Diminish Credibility -- and County Treasury

County officials should get out of our adversarial legal system and talk honestly. 

Neither side has everything right. There have been honest misunderstandings/disagreements, but each side accuses the other of grandstanding – and using litigation to divert attention from real issues.

The Sheriff should dismiss his lawsuit against two commissioners. I sympathize with some of his frustrations, but this lawsuit isn't the best course of action. He has little chance of winning. (See my blog for details.) 

The County Manager should dismiss her suit against the Sheriff over his seizing the detention center the day jailer Chris Barela was arrested. The Sheriff claimed: that (1) the jail was a crime scene, and other county officials were “persons of interest” and (2) prisoners might riot upon hearing of alleged misuse of their inmate welfare fund, and Barela allegedly hadn't set up viable safeguards to run the place without him. The Sheriff said his presence would be temporary. He also stated that he had legal authority to do what he was doing.

The County Manager sought an emergency court order ex parte (without the other side's presence). That's legal; but why didn't the County Attorney call the Sheriff a half-hour before the hearing to alert him to be there? Why didn't Judge Manuel Arrieta insist on that, or have his clerk call DASO? Arrieta did request an affidavit from the County Attorney; but the purported notice was rather lame. (See blog for details.)

The Sheriff was reachable. Having him present his side of things would have given the court a fuller picture. (Arrieta did weaken the County's proposed order.) 

On the merits, maybe Vigil was right, maybe not, and maybe, as Arrieta apparently felt, Vigil was overstepping his authority but had some legitimate concerns that the County's draft of the order would have threatened.

Either way, it's over. Who was right holds some interest, but nothing worth paying two sets of attorneys and a judge to fuss over. 

The lawsuit sought injunctive relief, which everyone agrees is moot because the Sheriff left the jail. It also sought a declaration that the Sheriff was wrong. Take egos out of it, and that's moot too. (The Sheriff is extremely unlikely to repeat his actions.)

Both sides should agree, quickly and cheaply, to dismiss the case without prejudice, conditioned on an agreement that if Sheriff Vigil ever thinks circumstances warrant such action, he'll notify the County and the two sides will expeditiously consult a judge before action is taken. Neither side need admit anything. DASO sources suggest the Sheriff would agree. The County Manager should too, although one commissioner stressed they had no clear idea what the Sheriff might do and would feel more comfortable getting judicial guidance now. (Maybe Judge Arrieta should appoint me as a mediator.)

We face real issues. The Sheriff should play better with his peers. Other county officials should realize that some officials (including a former county attorney and perhaps present or former county manager) are honestly viewed as “persons of interest” in the jail investigation. The Sheriff should recognize that other officials are by no stretch of the imagination suspect. The investigation should proceed. (In a perfect world, someone who hadn't been at odds with the County Manager so loudly and so often would investigate; but at least the investigation is being done. The District Attorney, and ultimately judge or jury, will make the ultimate decisions.) 

Tuesday's County Commission meeting revealed that the two sides had discussed one issue and cleared up honest misunderstandings. Each side had made mistakes. They solved the problem together. Let's hope they continue rebuilding trust.
                                                                 -30-


[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 17 January (under "Opinion" and will appear on the KRWG-TV website later this morning (News-->Local Viewpoints).  As I worked on this column, I quickly recognized that if I filled in details regarding the two lawsuits mentioned, I'd hardly have room to say much more.  Therefore I'm posting additional material regarding Sheriff Enrique Vigil's lawsuit against Commissioners Billy Garrett and Wayne Hancock, see the separate pose on that by clicking here or just paging down to it.  (It was published yesterday, and includes a transcription of the employee complaint that sparked the recent investigation of the Sheriff, which found nothing significant but upped the tension levels.)  I planned a second to discuss County Manager Julia Brown's suit against the Sheriff.  I haven't posted that yet, but will try to get it up here later this morning.   And again, this column and the supplemental post(s) contain my opinions, which are not necessarily those of the Sun-News or KRWG.]

 [In addition, though, it was encouraging to here at Tuesday's commission meeting that in a couple of meetings (apparently initiated by Commissioner Leticia Benavidez) top staff both at DASo and the County Administration discussed the recent issue concerning computers for new DASO vehicles and resolved it.   Folks on both sides said they'd learned from the sessions.  From both sides, I'd heard expressions of anger and frustration, and beliefs that the other side was consciously being obstreperous or uncooperative.  I've hoped some of that has been miscommunication.  Thus the recent rapprochement is somewhat encouraging.
Dropping all these lawsuits and having a frank but courteous discussion at the highest level would be a great next step.]

 

Saturday, January 16, 2016

County Sheriff an Underdog in his Lawsuit against County Commissioners

My Sunday column (17 January) argues that all the county officials who are suing each other should get out of the litigation business and back to governing the county as effectively as possible.  There was more to say than I could fit into a newspaper column, so I planned to supplement it with two further posts -- this one, concerning the Sheriff's lawsuit against two County Commissioners, and a second concerning the County Manager's lawsuit against the Sheriff.  Both should be dismissed, in my view.

     So what follows is my effort to share with readers some opinions on the legal situation in the Sheriff's suit; and at the end I've included a copy of the employee complaint that apparently triggered the investigation of Sheriff Vigil that he complains of in his lawsuit. (However, Only a lawyer or someone particularly interested in this county's management should bother to read this post!)

     It's important to know that cases may ultimately get decided by the facts (I say your dog bit me, you say it didn't, and the jury decides; or you come into court and prove it wasn't your dog) or by the law (I allege that your dog barked so loud it frightened my cat, and you argue to the court that even if everything I alleged is true, there's no “cause of action” for defendant's dog scaring plaintiff's cat. (If I sue you alleging you lied to me about the car you were selling me, and we disagree about the true condition of the car and what you actually said, that's a factual dispute; but if I say you promised to kiss me, and I was very disappointed when you refused to keep that promise, there's instead a legal dispute about what the hell I'm wasting the court's time for. And I'd lose.)
     Federal law provides for a “12(b)(6) motion to dismiss in which defendant argues that Plaintiff's case is legally insufficient. The court, assuming that all plaintiff's factual allegations are true, can throw the case out for purely legal reasons.
     Here, where Sheriff Vigil has sued two county commissioners for actions they allegedly took as commissioners, they have what's called “qualified immunity.” Because that's an “affirmative defense,” it can be raised by such a motion and decided early – partly to spare public officials the burdensome task of dealing with discovery and depositions and paying lawyers for an obviously inadequate case.
     In such situations, the would-be plaintiff has a fairly heavy burden, and must show:
  1. that D's alleged actions violated a constitutional or statutory right and
  2. that the right at issue was clearly established at the time of the alleged unlawful conduct.
Were the Alleged Actions a Big Enough Deal to Warrant the Claim Made?
     Did the alleged actions violate a Constitutional or statutory right?
Sheriff Vigil makes two allegations: that he was removed from the dais as a reprisal for his speech and that the County authorized an investigation of him.

     Legally, there has to be a “material adverse action.” Firing an employee or decreasing his or hr pay would obviously qualify; but lowering his name six inches on his office door, or moving her from 4th to 6th in the order a messenger followed in delivering the internal mail? No. As the 10th Circuit said in 2009, “we have never ruled that all [of an employer’s acts], no matter how trivial, are sufficient to support a retaliation claim.” In fact, the test is “whether the [alleged retaliatory acts] would ‘deter a reasonable person from exercising his . . . First Amendment rights.’” To win on this point, Vigil's lawyer would have to convince the trial court that Vigil was so chicken-shit that shifting him to a less prestigious seat at meetings would scare him out of saying important things for his Office. That's a tough job for his lawyer. I've spent some time with Sheriff Vigil, and even if his attorney thinks he's that timid, I think he has the courage of his convictions.
     Defendants' counsel says (in his motion to dismiss) that he's found no case anywhere in which a court found changing someone's place on the dais to be sufficiently adverse to intimidate speech. I looked in Sheriff Vigil's opposition filing, and found no such case cited.
     Thus, the dais claim seems inadequate. Also, he continues to be seated at County Commission meetings, with a name placard and a microphone, as are the three other elected officials, the County Assessor, the County Treasurer, and the Probate Judge. (I don't recall where the other three sat before; obviously if they too were “demoted” in dignity, that'd knock hell out of his case; but regardless of that, he's a non-commission elected county official sitting where the other non-commission elected county officials sit.)

     The second alleged retaliatory act was the famous investigation. I'm on record that the investigation was a silly waste of time and that some of what Sheriff Vigil has said, such as that all ain't wonderful in the HR Department, I said long before he did. The investigation was wasteful. It did find that the sheriff had contributed to the noxious atmosphere of county government; but that noxious atmosphere preceded the sheriff's election, as two separate juries and several of my columns have said.
     That it was a waste of time doesn't necessarily mean we should blame the Commissioners involved. They have repeatedly argued that after a county employee complained, they had no choice but to pass the complaints on to an investigator. (The test of that complaint appears below, near the end of this post.)

     If the Commissioners are correct that they were required to authorize the investigation, then Sheriff Vigil can't win damages based on their doing so
     However, even if they had full choice in the matter, the Sheriff's legal case runs smack into the legal principles discussed above: was that investigation, as the Supreme Court has put it, conduct that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Was it a sufficient adverse action to intimidate Sheriff Vigil from speaking his mind?
     I don't see how it can be. First of all, it sure didn't stop him, but that's a factual matter. Secondly, he'd have to be awfully weak-kneed to let such a thing shut him up. (In fact, he was strong-minded enough to string the investigator along, in a somewhat comical series of emails, and ultimately decline to be interviewed by the investigator. He made the investigator look sort of ineffectual. He didn't appear intimidated. But that's another factual observation.)
     What's the law say? “An investigation of potential misconduct . . . will generally not constitute an adverse employment action,” says the 10th Circuit. The court says that's because an investigation has “only speculative consequences.” That is, an investigation might result in damage or adverse consequences to the person investigated; but (as happened here) it might result in nothing but hot air. The fact that the Sheriff questioned the Commission's right to do any such investigation, or take any action based on it, weakens his lawyer's argument here that it was a big deal. Or a “material adverse action.”
     In short, the Sheriff's lawyer has a tough row to how persuading a court that either alleged action is sufficiently significant to support a First Amendment / retaliation claim.
     Another point, not stressed in the Motion to Dismiss, is that apparently one of the two defendants wasn't even involved in initiating the investigation. The complaint came in. County procedure requires that the Commission Chair and a second commissioner chosen by lot shall look into it and decide whether to have the charge investigated. Here, that two-person committee was Commission Chair Garrett and Commissioner Garcia. Not Commissioner Hancock. That's another potential problem for the Sheriff's trial lawyer.
 
Was the Alleged First Amendment Right Clearly Established when the Actions Were Taken?
     This is the second point the sheriff must prove: that the defendants not only violated a constitutional right, but violated one that had been clearly established by law before defendants did what they did.
     We'd all agree that our Sheriff should be permitted to speak freely and publicly about matters of public interest, such as the adequacy or inadequacy of his Office's funding. Except for narrow exceptions such as confidential personnel matters or investigative strategy in a criminal case, where I'd prefer he be discreet, I want Kiki speaking out. Frankly and thoughtfully, and unintimidated. I even agree with some of what he's said about HR, generally, and certain actions by officials in the county administration. I also disagree with some of his assertions, and on some I haven't figured out whether I agree or disagree.
     But that ain't the point.
     When Kiki says these things about the Sheriff's Office as the Sheriff of Dona Ana County, he's speaking in his official capacity.
     The First Amendment protects us citizens from retaliation by governments for speaking our minds.
     You'd likely assume that protection extends to government officials, too; or maybe you wouldn't, since they are the government to some degree.
     But what matters isn't what you or Kiki or Billy or I may think about that, but what the U.S. Supreme Court has said on the subject.
     The Supreme Court has said, in essence, that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In other words, as a general matter, public officials don't have First Amendment protection when speaking in their official capacities.
     On first reading, I'd have two questions about whether that statement (from the 2006 case Garcetti v. Ceballos) applies to Sheriff Vigil. He's an elected official, which Garcetti (an assistant D.A.) was not; and the County Commission is not his employer. We employ him – which may or may not make the Commission his employer for this purpose. Garcetti involved a situation where the First Amendment plaintiff worked directly for the public officials accused of the intimidation/retaliation. By contrast, would it apply if the county clerk were somehow intimidated by the State Police or the FBI for statements for or against freedom of marriage? Not necessarily. This case falls somewhere in the middle.
     But since that is a question the courts have not yet answered, Kiki loses. He loses because of the rule that the right he's suing over must have been “clearly established by law” at the time of the alleged retaliation/intimidation. Therefore, under Prong 2, he loses even if his material factual allegations are assumed to be correct, as they must be when the trial court looks at this.
    The 10th Circuit Court of Appeal, which has jurisdiction over New Mexico federal appeals, has not decided this point. Therefore it's not “clearly established.” Further the Third Circuit specifically held, in a case arising in New Jersey (Werkheiser v. Poconos Township), that an elected official's First Amendment Right when speaking as a public official was “not clearly established.” The 8th Circuit has also expressed doubt that Garcetti applies to speech by elected officials. By contrast, the 5th Circuit has opined that Garcetti would not apply, although Defendants' lawyer argues that that opinion may have little precedential effect because the 5th Circuit ultimately dismissed the case before it as moot. Arguably, the court's action was thus not squarely based on its view that Garcetti would not apply.
     [I should note that most of the above is based on the parties' briefs for and against dismissal. I read a couple of the cases mentioned – and on the issue discussed above, the plaintiff''s (sheriff's) brief seemed somewhat weak. I didn't do independent research beyond the two cases.]
What's all this mean for Vigil and for Garrett? Quite possibly that the Sheriff loses. A split in the circuits illustrates the undecided nature of the issue. That split might well be resolved during the next few years by the U.S. Supreme Court – but long after the actions in this case occurred. (If I had to guess which way the Supreme Court will go – which is immaterial to the Sheriff's case against the Commissioners – I wouldn't, but I'd note that the 3rd Circuit, in its decision, cited a list of cases for the proposition that Garcetti would apply to elected officials, stating that there was no real difference of opinion among the circuits.)
     However, the 3rd Circuit case also noted: “We pause here to emphasize that we do not today decide whether Garcetti is applicable to elected officials’ speech or not. Rather, we conclude only that the law was not clearly established on this point.”
     What does Sheriff Vigil's lawyer say about all this?
     He first states that in deciding this sort of motion the court must assume specific factual allegations in the complaint to be true, and let the complaint stand for now if it contains enough material facts to be “plausible on its face.”
     Secondly, he argues that since the Motion to Dismiss includes exhibits such as the employee's complaint, the motion must be treated as a Motion for Summary Judgment.
     Third, he cites a 10th Circuit case that held that it could not decide the qualified immunity defense raised by state defendants without the benefits of discovery and/or facts. (It isn't immediately clear to me why more discovery would be needed here, and I'm not sure the Sheriff's lawyer really explains that.)
    He also argues that 10th Circuit Courts have held that any form of official retaliation for exercising one's freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an infringement of that freedom.

     Vigil also challenges that the County Code of Conduct is applicable to him as an elected official. However, his brief doesn't even mention Werkheiser and doesn't really address the Garcetti issue very effectively, in my view.

     By the way, the Sheriff's lawyer has also sought to file a First Amended Complaint raising eight or ten causes of action against defendants including other county officials and the New Mexico Association of Counties. He did not amend to name Commissioner Garcia, and may intend to dispute that it was Commissioner Garcia, not Commissioner Hancock, who was chosen by lot to respond to the employee complaint.

The “Investigation.”
     I have been highly critical of HR and other present or former county officials.
     Here, Sheriff Vigil has accused Commissioner Garrett (and also Commissioner Hancock, but Hancock apparently had no involvement) of starting the investigation of Vigil. Garrett has said he was required to initiate the investigation because of an employee's complaint against Vigil. That appears to be true.
     In any case, it seems reasonable that interested readers who might be deciding what they think about all this get a look at the complaint in question. Here it is. (The redactions were done by lawyers or city officials. And while I pretty much know whose names were redacted, those are immaterial to anyone's judgment on the issue.)

::::::::::

On September 29, 2015, I met with [REDACTED].
I initially went over to tell them “good-bye” and that I had resigned my position. [REDACTED] asked why and invited me into his office. [REDACTED] joined us. I told them that this was the most toxic environment I have ever worked in and I wasn't willing to do it anymore. I told them that for months now, elected officials have been allowed to get up in the public meetings and bad mouth HR with no recourse. Not one of the commissioners have asked for concrete proof of the complaints that appropriate action can be taken and if there is no proof for the elected official to stop.
I told them that when I was at District Court on July 16, 2015, for the Stewart trial, I walked out of the restroom and heard the Sheriff telling opposing counsel that "HR !s corrupt"; that he is investigating the department and that he is going to "get rid" of all of us. I told them it Is sad when I have to tell my husband, "If I call and tell you I'm in jail, I'm not kidding." I don't know what that "side" is capable of.
Even though the things that the Sheriff is complaining about, I don't work with; it is still my department. I cannot turn a blind eye to the bullying that he Is allowed to do week after week. It would be different if he could bring proof but to make wild accusations and not be required to back up what he is saying is wrong.
On June 12, a meeting was scheduled with [REDACTED] and one of his employees (that was pregnant), [REDACTED]. [REDACTED], and me. Unbeknownst to any of us, the Sheriff and [REDACTED] walk in with the employee. This was my first face-to-face meeting with the Sheriff. I opened with why we were meeting and before I could say anything else, the Sheriff leaned towards me and with angry aggression (clenched jaw) stated that he fs the elected official and he is going to decide what is going to be done with the employee. The way he leaned forward and reached towards his right side worried me. I have a family member in law enforcement and he explained to me that when law enforcement feel "threatened" or are in a volatile situation, they keep their hand dose to their firearm. I don't know if the Sheriff was armed that day, but I did go to the County Manger after the meeting to let her know that if I ever have to meet with the Sheriff again, I wanted security In the room.
I told them that I was sad that I could not do the last 7 months I needed to vest for retirement, but the stress is affecting my health and I am not sure if I stay 7 more months that I will live to retire.
::::::::


By reproducing this memo here I'm not adopting or contradicting any or all of the statements made by the now-former employee. (Nor have I fully investigated independently whether or not the Commissioners could have or should have declined to respond by authorizing the investigation, although it appears they had little or no discretion on that. This issue may be immaterial to the lawsuit, if the Motion to Dismiss is upheld.) I'm just giving readers a chance to form their own opinions, undirected by either side's lawyers or by me.
These details are relevant if the legal challenge (that there's qualified immunity and/or that Vigil had no “clearly established” Constitutional right under Garcetti) fails. Then we're into factual debate – and the complaint bears on the obvious argument by Defendant Garrett that he acted because of county regulations, not because he wanted to retaliate against Plaintiff Vigil.



Sunday, January 10, 2016

Are terrorists terrorists even if white?

The occupation of the Malheur Refuge in Oregon is interesting.

(The Malheur is a place to watch migratory birds. We spent Christmas morning with the sandhill cranes at Bosque del Apache. I'm glad no armed group was occupying the Bosque to force the government to abandon the refuge.) 

First, let's stop calling these guys “militia.” They're nut-cases. They're also making the case for reasonable gun control much more effectively than Obama could do. 

Secondly, let's not tar all ranchers by the same brush, any more than we should with Muslims. These dozen guys are terrorists. The vast majority of ranchers aren't. Same with Muslims. Yes. one could reasonably raise questions about the sentencing of two Oregon ranchers for arson; but those ranchers are quietly turning themselves in, and distancing themselves from Bundy, who's using them to further his agenda. 

“Terrorists?” Yep. It's instructive that so many are not calling these guys terrorists and that they are being treated with kid gloves. 

By law, “the term 'domestic terrorism' means activities that (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or (B) appear to be intended to intimidate or coerce a civilian population, [or]to influence the policy of a government by intimidation or coercion.” 

Occupying a public bird refuge with assault rifles tends to intimidate civilians. Doing so while stating you will hold the buildings until the U.S. closes the federal refuge sure sounds like trying “to influence the policy of a government.” 

When folks are frightened about terrorism, accommodating these guys suggests that it's the religion and ethnicity of terrorists that matters to us. The jokes that a black kid with a bb gun gets killed but these guys get to do as they please are too facile, but they contain some truth. (And the folks who get upset when Obama says “terrorists” instead of “Islamic terrorists” – are they demanding Bundy be called a “rancher-terrorist?” Or a “Christian terrorist” because he said God told him to do this?)

I'm not advocating an all-out assault; I don't want to see cops or occupiers killed; and these folks haven't shot anybody. But if a dozen Pakistani-Americans with assault weapons occupied a federal facility open to the public, how long would they get to stay in there? Alive. Unmolested. Coming and going at will?

If Ammon Bundy and his pals aren't jailed for a significant time, that will be a frightening governmental failure that will seriously undermine respect for law enforcement.

One report mentioned local ranchers taking them home-cooked meals. I hoped I'd misunderstood. But others confirm that (as of Tuesday) there's no law enforcement anywhere around.

Armed federal or local police should be surrounding the place. The sheriff is staying away, begging these guys to leave peacefully, and letting them slink away into the night leaving only a few recognized leaders to be jailed. No one should be taking meals or supplies to them. If the place is on the grid, electricity to it should already be off. If water can be cut off, it should be.

These guys should be as cold, unwashed, and hungry as possible, as soon as possible. If they're being allowed to stay until they walk out voluntarily, someone should be there to arrest them when they do. They should also – in addition to getting jail-time – be fined heavily to help defray the cost of having to deal with them. 

The occupers babble about “freedom” while using guns to intimidate others from freely using a public museum and bird refuge.
                                                             -30-
[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 9 January, and should appear later today on the KRWG-TV website under News-->Local Viewpoints.  Let me note again that it was written on Tuesday, knowing that much might change by Sunday morning.]

[Couple more items surfaced after I sent this in.  One was that this rabid anti-government partisan Ammon Bundy deigned to accept a $530,000 small-business loan from that same government in 2010.  The loan's guaranteed, and could cost taxpayers $22,419.  Whether or not he's paid it back is unknown, at least to me.  (He reportedly declined to answer emails on the subject.)  But clearly his anti-governmental passion has limits.    He thinks the federal government is way too big, but the part of it that lends money to folks like him is all right.
Bundy's family also benefited from the federal government in other ways.  For one, if you grow cattle you have to feed and water 'em.   Private landowners tend to charge a significant fee to let you graze your animals on their land.  The feds charged Bundy's family a small fraction of the private market rate.   (The Government reportedly charges 93% less than private landowners.)  Bundy's father showed his gratitude by refusing to pay even that, as I understand it.]

[People said letting the Bundy's getting away with their conduct in 2914 would lead to more of the same.  Here we have them invading a refuge in a different state.   Will they somehow be discouraged by the courtesy and restraint that law enforcement has shown?  I wouldn't think so.   Besides which, if they have legitimate grievances -- and the mandatory minimum sentencing is a damned serious grievance -- there are democratic processes to seek change.  Many of us want some bird refuges.]  


Sunday, January 3, 2016

Resolutions -- and Observations

It sounds foolish and old-fashioned to make “New Year's Resolutions,” so here goes:

One is to keep writing columns. (Three columnists quit writing columns this year. I'll miss their voices.) Yesterday I heard an old phone-message from a lifelong Cruces resident I've never met, just thanking me. There are people who told me confidentially of being treated badly by powerful people. After investigating I gave voice to their pain and sometimes even improve their situations. So I'll keep doing this awhile. 

In 2016 I'll welcome criticism and people who contradict me. That'll be an easy one to keep: contradiction is more entertaining and potentially more instructive than praise and thanks, although the latter helps keep me going.

I'll savor each moment of life – and keep in mind how much there is to savor here: the recent magical snowstorm, and the birds and hummingbirds we helped survive it; the sand-hill cranes with whom we spent Christmas morning, in the Bosque del Apache; a community of people I care about; mountains I can't take my eyes off at sunset; playing pickleball at Meerscheidt Rec Center; Chope's Habañero's, and La Casita and other great eateries; First Friday Art Rambles, but also off-the-beaten-track galleries like Art Obscura; a Farmers' Market full of good people (careful in their work, warm and welcoming to us) and good food (local, fresh, healthy); the Fountain Theater; the Progressive Voters' Alliance monthly meetings, where people concisely (two minutes and an alarm goes off) tell us what they care about; Milagro's, Spirit Winds, and other local meeting-places; and our unique history and culture.

I'll keep learning. I'll play less Sudoku and watch fewer sports on TV, but read more of what interests me.

I'll continue to try to help our community talk to itself about things that matter, and I'll hope we can do so (despite PACs and recall hustlers) frankly and openly, and without rancor, understanding that none of us has a monopoly on Truth. I'll try to help Radio K-TAL facilitate discussions.

I'll use less water, less gasoline, and less electricity. Even though larger entities use way more of everything, the more I can diminish my own “footprint” the more comfortable I'll feel about writing on this subject.

I'll learn more about our local water predicament and about my own role in climate change (or global weirdness), with a hope of helping articulate the situation in ways that we can actually hear. And act on. 

I'll continue writing strong criticism of public officials, but not lose sight of the fact that we have a surprising number of capable, competent, diligent, and honest officials here. 

I'll jettison many activities that may be inherently good or worthwhile but distract me from my main purpose in life: to create, with a camera or a pen, the best images and stories and poems I can.
I'll listen more often and more carefully to readings by skillful local poets like Joe Somoza and Dick Thomas – and try to slow down more often and just watch and listen, opening my mind to whatever wants to visit it.

I'll be a better husband to the incredible wife (and editor) I've somehow been lucky enough to marry.
In 2016 I'll lose ten pounds. (Once, as a tailor in Perú measured me for a suit, I instructed him that I usually weighed less. Then I asked him how many people, as he measured them, advised him that they were about to get back down to their normal weight. He answered that pretty much all of them did.)

Anyway, enjoy the new year. Live it fully!
                                                       -30-

[The above column appeared this morning (Sunday, 3 January, 2016) in the Las Cruces Sun-News and will appear shortly on KRWG-TV's website as well.  I invite comments or questions -- here, on the the Sun-News website under "Opinion", and/or on KRWG's site under News.Local Viewpoints.  Thanks for reading!]

[I'd also resolve to write fewer "political" columns, but I'm always hoping to do that and can rarely manage it because folks with power continue to abuse it, and I can't help commenting on that.  At the same time, we have some surprisingly good local officials in the mix.]

[We also have a newspaper that's seriously trying to do a good job, despite difficult times -- for all of us, but also for newspapers.  The Sun-News tries to report events fairly and let a real variety of other voices speak through the paper.   It's neither as left-wing or as right-wing as critic on one side or the other allege.  The Sound Off caller the other day who said the paper shouldn't replace Mr. Harbison with another nut-case like Peter Goodman doesn't understand what the paper is trying to do.  The paper is actively seeing a good CONSERVATIVE columnist to replace him, because they want all points of view expressed.  Mr. Harbison tried and failed to get someone to step up, and maybe co-write with him for awhile before he quit.  If you're conservative and can write, apply!  And don't blame the Sun-News if it can't find a good conservative columnist locally.  Blame conservatives who can't write very well or don't dare apply for some reason.  If you do apply, (1) try to write clearly vividly, and not too academically or generally, (2) try to do some research, and not merely in places you know you'll agree with, (3)  EDIT what you write to make sure we'll all get the point, and (4) be prepared for and welcome criticism and contradictions, and view personal attacks as amusing ways of saying you're doing a good job.]

[And have a good 2016!  And help your family, friends, and neighbors -- and the rest of us -- have a good 2016, too.]

[Oh, and one other note: if you're interested in the new community radio station, KTAL, look for confirmation of a January 16 get-together in which folks can share ideas with us, suggest shows, hear what we've been planning so far, and (I expect) see our new studio, though it's not a studio yet -- and we will probably sign the lease Monday or Tuesday.  I'm not supplying the address yet, because we can't be certain, but I think it's 10-12 or 10-2 that Saturday.]
Desert Snow --                                  © pgoodmanphotos