Tuesday, July 16, 2013

      A lot of Dona Ana County employees now sound like folks in Rome waiting for a wisp of smoke while the Cardinals are choosing a Pope.  [Note: I published this Thursday morning.  The watching will continue at least a while longer.  Thursday's meeting was so closed that so far as I know the commissioners didn't even go into the commission meeting room, and made not even a brief statement immediately before or after the session.  However, they will meet again next Tuesday, 23 July.]

      The Commissioners will meet in closed session today.  Many current and former employees hope change is imminent, but no one's quite sure what'll happen when.  Subjects for closed sessions need to be published 72 hours in advance.  Today's meeting is limited to the subjects published.   Those subjects include the Granados verdict and what to do about it.  Specifically, that means "threatened or pending litigation involving employment discrimination and Granados v. DAC."

       There are two issues I'm aware of: how to deal with Jorge Granados and the adverse verdict in his case; and how to deal with the significant management problems revealed by the testimony and verdict in that case and by related developments.

Appeal Granados?
       Should the County appeal?  I'm not the County's lawyer and haven't researched it deeply enough to answer unequivocally.  (I do know that any appeal should be based on the law, not testosterone.)

       However, the County should not appeal just to delay paying Mr. Granados.  Appeals cost money, and the County could very well end up paying two sets of attorneys -- its own and his -- as well as related costs. Appeals can also cost credibility.   Unless there are very clear legal errors that can be appealed with a high degree of confidence, why incur further fees and send an unintended message to employees that county management doesn't "get it"?    I didn't see such errors; but, again, I wasn't a lawyer on the case, but just a spectator.  If and when the County does appeal, I will look very carefully at the proffered grounds, and won't be shy about offering an opinion.  If they look as frivolous as some of the grounds advanced in the Slevin appeal, I'll say so.  (Appealing Slevin on any desperate grounds made sense, because even a frivolous appeal can have settlement value, which is a major issue with a $20 million verdict; but that's much less of a factor here, with a  $250,000 verdict plus attorney fees at stake.)

       That decision need not be made today.  The County has moved or will soon move for a judgment notwithstanding verdict.  I believe that will be denied, and I think that the County will have 30 days after notice of that denial to appeal.

What to do about the County's management problem?
        More important in the long-run is how the Commissioners handle their awareness that there are serious issues involving Sue Padilla, John Caldwell, Deborah Weir, and Silvia Sierra.   Based on what I've heard, I could make a very strong argument that each should have been gone long ago.  On the other hand, they are entitled to a fair investigation and hearing.   I'm quite sure there as to each of them there are cogent arguments against disciplinary action.  I'm neither judge nor jury.  In some cases I've heard serious allegations but don't have access to the documents or witnesses who could provide admissible evidence to confirm or refute those allegations.  Therefore I don't claim to state with certainty what an independent investigator or special counsel might conclude, or advise the Commissioners.  I do know enough that if I were a Commissioner I'd move for such an investigation.

        The Commissioners have already moved for such an investigation; but the investigation by Universal Investigations can't suffice.  Even if the investigator does the best and fairest investigation he can, he can't do a truly full and fair investigation because many of the folks who could offer him evidence and testimony won't do so because of their fear that it will go to the Legal Department, which many of them do not trust.  As one Commissioner said to me this morning, "I've heard from County employees who fear that if the report goes to Legal it will be manipulated or changed before it gets to us.  And I too am very concerned."  The retaliation fears expressed by witnesses in Granados and by others to me personally will keep many employees from talking to Universal.

Ms. Sierra's Complaint
        Meanwhile, the Commission should be neither motivated nor dissuaded in the least by the frivolous "EEOC Complaint" filed by Silvia Sierra, the Director of Health and Human Services.  It ain't worth the paper wasted printing it.   In the old days, at least it could have proved useful during a visit to the smallest room in the house.

        It was obviously a chess move, grounded solidly in the maxim that the best defense is a good offense.  Aware that the Commissioners were, perhaps belatedly, getting serious about an investigation in the wake of Granados, Ms. Sierra, perhaps advised by Mr. Caldwell, recognized that such a complaint would distract the public, perhaps intimidate a commissioner or two, and provide a possible grounds to claim that any action the Commission takes regarding her, and would have taken without her complaint, was "retaliation" for the complaint.

        That's not a bad tactical idea, except that they couldn't find any grounds for complaint that one could repeat with a straight face.  It contains no allegation of any actual adverse job action; and certain of the allegations are absurd.

It's alleged that Commissioner Hancock said at some point that he had “saved” the Crisis Triage Center project.  How that amounts to damaging discrimination against Sierra isn’t clear.  No job action.  No harm.  No reference to her sex or national origin.  Not even any insult.  She feels slighted by his comment – which could have failed to giver her full credit for her work or could have assumed his audience was well aware of that work.

He allegedly told her she wasn’t a leader.  Well, the audit by Milton Duran, also Mexican-American, certainly suggests that, as does the high turnover rate in her department and the host of allegations about her conduct toward people working for her.  (By the way, I know Commissioner Hancock slightly.  I've seen him work with folks of various sexes and ethnicities, and haven't yet seen either mistreatment or condescension.  Vaguely recalling that he had lived and done business for six years in Mexico, I called him this morning to confirm that.  Apparently he and his wife didn't live in foreign enclaves, but among Mexicans (though obviously living better than the average citizen), and were so enamored of the culture and the people that that fondness was one reason they chose Las Cruces over other possibilities back in the U.S.)

         She alleges that Hancock and Undersheriff Eddie Lerma “falsely accused “ her of serious crimes.  She doesn’t provide details.   Again, the audit of her department suggests she was involved in letting folks gain access to social services with questionable credentials, which some might reasonable view as criminal conduct, well-motivated though it may have been.  I’m not saying she was guilty of a crime.  But someone could reasonably believe so based on the available evidence, without reference to her sex or place of national origin.  Certainly the Hispanic women she allegedly fired or mistreated because they didn’t like her ordering them to wink at falsification of federal documents, if they called that criminal, wouldn’t be doing it because of her sex or ethnicity.  The whistle-blowers who cooperated with Duran’s audit, and whom he testified she retaliated against, shared her sex and ethnicity.  They just didn’t agree on ethics.

Why the complaint includes Commissioner Benavidez isn’t clear.  She’s a woman and a Mexican-American, as is Sierra, so the discrimination allegation seems unlikely.  The allegation that she retaliated against Sierra for testifying in the Granados trial is hilarious.  Sierra’s brief testimony was favorable to the county – as, for the most part, was Benavidez’s.  So the motive for retaliation would be a mystery.  So would the opportunity.  The EEOC Complaint was filed three or four business days after the trial ended!  What could Benavidez – acting alone! – have done to retaliate.

Meanwhile there’s also a factual problem: until she saw the EEOC Complaint, Benavidez didn’t even know Sierra had testified in the trial at all!  She certainly didn't know what that testimony was.

(I liked Benavidez’s comment to a reporter who asked whether she liked Sierra.  Benavidez said she really never had liked her all that much, but grownups often have to work with people they don’t much like, and routinely do so with courtesy.)

Often when there's a discrimination complaint, as in Granados, superiors appear to have mistreated an employee, but reasonable people could differ on exactly the reasons.

Here, there’s no firing, no reprimand, no job action at all, no hostile work environment, and no apparent harm.  There’s also no real hint of discrimination.

There’s just an awareness that the present investigation could lead to some consequences – allegedly long overdue – against directors, including Ms. Sierra, and a desire to muddy the waters and perhaps intimidate a commissioner or two.


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