Thursday, July 11, 2013

A Deeply Flawed Investigation

      Watching the County is like watching a game of three-dimensional chess.

       The County Commissioners responded the Granados verdict swiftly and appropriately by ordering an independent and unbiased third-party investigation.  They got the message -- from the Granados verdict, from employees' testimony, and perhaps even from my own Sunday column -- that conduct by Interim Manager Sue Padilla, County Attorney John W. Caldwell, Human Resources Director Deborah Weir, and others needed looking into.

       They may not get the investigation they hoped for.

       The investigating "third-party" misidentified in the county press release as Investigation Services is actually Universal Investigation Services, which reportedly signed a contract with the Legal Department this spring or summer to do investigations..

       Within the past six weeks or so, Patrick Ness from Universal was down at Motel Boulevard investigating county employees, apparently on behalf of Mr. Caldwell, outside litigation attorney Raul Carrillos, and/or the insurer, New Mexico Association of Counties.  As far as anyone could make out, he was trying to investigate leaks that his masters believed existed.  That is, employees were talking about negative aspects of their work experience, and someone wanted it stopped.  At least, that's how it appeared to the employees, some of whom were a bit startled.

        Now a different fellow from Universal is here to do the "independent and unbiased" investigation.  He will presumably urge the employees to speak freely concerning their grievances, even though one of his co-workers was here recently doing a different sort of investigation.  He will urge them to believe that he will report only to the Commission, and won't be telling John Caldwell what they say -- even though they previously did exactly that.  (Two ex-employees have said to me this week, "those folks [Universal]are in John Caldwell's pocket."  Rightly or wrongly, that's the perception.)  Employees will be urged to ignore the fact that Legal Department employees take people to the interviews, then take the next interviewee to see him, so that the Legal Department knows who's talking to him and for how long.  [Note: after I drafted this, but before I got around to publishing it, someone complained.  The investigator was moved to a vacant office in Utilities; he speaks by phone with a Legal Department employee about whom to talk to next, and she then advises a receptionist in the Manager's office, who calls the interviewees -- or so I understand.  If true, the change sounds pointless.  If it was done to convince doubting employees that the Legal Department isn't involved, that's so insulting it's likely to have the opposite affect.]

          One has to fear that this is an investigation doomed to failure.

          I believe a majority of the commissioners truly wanted a fair and effective investigation.  I believe they still do.  One critical factor in county government is that the system, particularly as modified in recent years, gives the commissioners a lot less power in some ways than most of us might suppose.  The theory is, hire a professional manager to run the county and let the commissioners set policy.  We don't want them calling up the road department to get their cousin's driveway paved, or the potholes on a lover's block given higher priority.  Certainly can't run a county or city if every commissioner can intrude freely into personnel matters, so that anyone who doesn't like a manager's or director's decision just goes over his or her head to a pal on the commission.  This sort of thing used to be a major problem here, as in many rural or semi-rural areas.  Within the past five years, the county government has consciously modified itself to make it tougher for commissioners to get involved directly in personnel matters.

           The commissioners have one employee, the county manager.

           The Commissioners normally must rely on the county manager as their window into what's going on in the county.  They also consult the County Attorney.

           Here, without pre-judging anyone, there's been significant evidence that those folks haven't always been acting as they should.  Jurors heard that from some of the witnesses in Granados, and I've heard it from employees and former employees.  It's fair to say that Ms. Padilla and Mr. Caldwell are "persons of interest" or even targets of the investigation.  They're sufficiently involved -- and loom so large in employees' fears of retaliation -- that for their own protection as well as the county's, they ought not to be involved at all in the investigation, just as county policy manuals prohibit the target of an EEOC Complaint from being part of the investigation of that Complaint.

            Thus the present investigation is an odd one, at best.  I'm convinced the commissioners didn't know the facts that made me instantly concerned about having Universal conduct the investigation.

            If I'm right, neither Mr. Caldwell nor Universal told them.  Was that mere carelessness or by design?  Beats me.  An ethical lawyer in Universal's situation would.have felt it necessary to make commissioners aware of certain facts.  In that situation, I'd have had to say, "Listen, I can conduct a fair and unbiased investigation, and not tell Carrillo and Caldwell anything; and they can't claim a conflict-of-interest, because when I talked to them as employees the County held the attorney-client privilege; but you should know that I have worked with them before, in this and that situation, and you should be aware that some employees may be reluctant to talk to me because of past events."
             That evidently didn't happen here.  Nor was it legally required.

             In defense of Universal, one might say: what's to disclose?  Universal comes well recommended by NMAC.  As Universal might see it, whatever Universal has done before was for the county as client, just as the current project is.  They're professionals and presumably feel they're trustworthy.  "Gee, it didn't even occur to us that there might be a problem."  Or they could reasonably have assumed that the County Attorney had informed Commissioners of the existing relationship.

             Equally, it would be fair to respond: are you saying it never occurred to you that folks might distrust you because you were just here investigating them for the attorneys?  Are you saying it never occurred to you, when all those witnesses testified about retaliation fears and several mentioned Mr. Caldwell's name, that there might be a better way to go about the investigation, some way that made clear to employees that Mr. Caldwell had nothing to do with it?  It never occurred to you that your client might not be aware of the details of  your previous work?

             All this is assuming that the only problem is appearances, and the effect of those appearances on employees' candor.  It's assuming that although in previous investigations anything Universal learned went to Caldwell and Carrillo in a heartbeat, Universal will decline to share information with either of them this time.

             I guess I can't say that I do assume that.  I have no basis on which to accuse anyone of any misconduct, and I don't mean to imply otherwise.  However, I also have no facts on which to feel comfortable reassuring individual sources that they shouldn't feel uneasy talking to Universal.

             (Of course, at least initially the investigation will interview only "senior managers.")

             I can say is that if I'd been engaged to investigate the possible problem, I'd have approached it very differently.  I'd have told senior management that with all due respect, to investigate the county's culture I'd need to interview folks other than senior management, and would have to proceed without real or apparent involvement by top management.  I'd have wandered in to visit employees alone, not with someone from the Legal Department introducing me.  I'd have tried to talk to some of them away from Motel Boulevard, too -- and somewhat out-of-sight.  I'd have explained to management that "Listen, if I do an investigation under your eyes, with you looking as if you're part of it, then even if I am able to give you a clean bill-of-health no one will believe a word of it."     
               Me, if I'd been a commissioner I'd likely have voted Wednesday to get out of the contract with Universal immediately, citing failure to disclose material information.  (Because Universal would argue that since County Attorney had the information, nothing had been concealed from the County, and would have an excellent legal argument, the County might have had to pay something to get out of the deal -- but less than a week or two of "investigating" will cost.)  Fact is, money is being wasted -- and the Commissioners should be damned mad about it. (I believe some are.)  They had a right to full and frank disclosure by the Legal Department, and that appears not to have happened.

                Alternatively, the Commissioners should view the investigation as a probable loss (as at least some of them already do) and think carefully about an alternative method of inquiry.

                Meanwhile: since the Commissioners didn't meet directly with the investigator, so far as I know, one wonders how he learned what to ask; one presumes he learned that from Mr. Caldwell, who employees say has also kindly assisted by selecting the interviewees and taking them to the investigator.
                 The easy reaction is to blame the commissioners; but they're in an odd position, having to depend on the Interim County Manager and the County Attorney to arm them with all the facts they need -- not just the facts that are convenient for management.  There are at least some policy constraints on the commissioners, discouraging them from finding alternative channels even when it begins to appear to them that they need to.  Here they tried to do the right thing and were advised that Universal was the right entity to do the job, but nothing much will come of it.  (At best, they should have thought to look John Caldwell in the eye and ask, "Have you used these folks before?  For what?"  Or, if he did mention using them, they should have asked a couple of follow-up questions.)

                There are a fair number of folks in county employ who would tell hair-raising stories of their experience "in a heartbeat," as one of them said yesterday -- to an investigator they felt they could trust.  But they're scared.  Even if Universal is without fault in this and the investigator is well-intentioned, those folks ain't gonna talk to him -- if Mr. Caldwell even puts them on the investigator's list!  I can't blame 'em, either.

                Some employees and former employees who've experienced or witnessed retaliation or intimidation, or see serious problems with county management, felt a sudden surge of hope with the Granados verdict and the announcement of the investigation, but hope faded pretty quickly.

                I presume the Commissioners will let the investigation run its course.  They are unlikely to learn much that's of interest.  But then what?


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