Sunday, July 7, 2013

Trial Points up County Management Problems

County management is under fire for alleged favoritism, retaliatory firings, and possibly discrimination.  Wednesday’s jury verdict highlights the problem..

The jury in Granados v. Dona Ana County awarded former Director of Public Works Jorge Granados $250,000 on claims he was illegally retaliated against for pushing discrimination claims.   (There are daily reports on the trial in my recent blog posts.)  Granados, who was fired in 2010, had passed on a complaint by a subordinate that then-Assistant County Manager Sue Padilla mistreated his department because it employed people who were “mostly minorities and less educated.”  Granados also reportedly complained frequently of discrimination and retaliation.

In closing, Plaintiff’s counsel Daniela Labinoti spoke passionately, showed summaries of testimony regarding discrimination, and closed with a reference to the imminent Fourth of July – urging jurors to “make history” and reassure victims of discrimination in Dona Ana County that they can speak up.

Defendant’s counsel, Raul Carrillo calmly urged jurors to consult the policies and documents in the record rather than following their passions.  “Our job is to come and reason together,” he said.  If he didn’t quite manage to explain just why Granados was fired, he did pretty well at suggesting that the witnesses who testified on Granados’s behalf were malcontents.

It’s troubling that so many county employees testified they feared that they would be retaliated against for testifying truthfully.

Pretty much every lower-level and/or Hispanic employee said so to some degree.  In a brief interview Wednesday, Padilla said that the people testifying to a fear of retaliation were “a very small population countywide” and “not representative of the general feeling,” adding, “I don’t supervise any of those people.  There are several layers in between.”  She said Granados “was held accountable.”

Even current employees who testified that they now got on with Ms. Padilla described her management-style in terms she won’t add to her resume.

Some said she discriminates against Hispanics.  (Paidlla is not Hispanic, her husband’s roots are Spanish, not Mexican.)  The witnesses were less than unanimous, but most who testified that she didn’t discriminate said that she used to, or that they used to believe she did, or that they weren’t sure. Padilla denied discriminating.

Many current and former county employees, as well as civic leaders who deal with the county, have told me that county management (below commission-level) is more concerned with secrecy and watching each others’ backs than with what’s best for the county.  (Padilla, former County Manager Brian Haines, County Counsel John W. Caldwell, and Human Resources Director Deborah Weir are often mentioned, as is Sylvia Sierra.)   If an employee is or might be a whistle-blower, or tells them things they don’t want to hear, they invent or exaggerate grounds to fire the employee, or harass that employee into quitting.  Employees who play ball can get away with most anything.

My investigation has turned up some evidence of this.  I’ve heard some heart-breaking accounts from people who sound very credible.  Most – even former employees happy in new jobs -- won’t let me use their names.   This month I’ve also had employees suddenly appear beside me and thank me for writing about the trial, or discreetly indicate their feelings that county management problems need airing.

The “official” reasons for firing Granados were pathetic nonsense.  If there were good reasons to fire him, those went unstated.   Management just wanted him gone.

Former auditor Milton Duran testified that Padilla asked to expedite a scheduled audit of Granados’s department, then – unlike most managers – was extremely dissatisfied when he gave that department a relatively clean bill of health.  Meanwhile, he made serious findings regarding a different department – run by someone more popular with top management – who is still in her position.  Others have told me, and Duran testified that whistle-blowers in the other department were driven from their jobs, as was he.  The defense brought out three black marks on Duran’s record.  Were those created in retaliation or genuine transgressions? Probably there are passionate believers on each side.

Management avoided hiring a new auditor for a long time.  Then they hired a woman who quickly saw how things stood.  She quit after just nine days.  (The county denied my NMPRA request for a copy of her resignation letter, then provided it under threat of litigation.)  The watchdog position remains unfilled.

Fortunately, Ms. Padilla is the Interim County Manager.   A search will bring the commissioners five candidates, possibly including Ms. Padilla if she applies.  (Wednesday, she reiterated that she hasn’t decided – and another county official jumped in to say, “I can tell you this: a lot of people want her to.”)  Commissioners will have a chance to make a fresh start with someone in whom they believe, whether it’s Ms. Padilla or a stranger..

The Granados jury hoped to send the county a message, and one juror told me they thought there should be an investigation of Ms. Padilla.  The larger jury is still out on the management problems facing the county, which are not limited to Ms. Padilla.

The trial holds three important lessons: commissioners should choose the next county manager carefully; the county should not appeal Granados without extremely solid legal grounds; and decision-makers should appraise the settlement value of the other cases more realistically.

Above all, a public entity shouldn’t lean on employees not to testify honestly about public matters.  It ain’t what citizens want, and it doesn’t work.

[The column above appeared in the Las Cruces Sun-News today, Sunday, July 7th.  As always, it represents my opinions and not necessarily those of the newspaper.]
[ If you didn't follow the trial and want to read about it in more detail,  I posted pretty much daily reports starting with  Day 2  [June 25th];  and Diana Alba Soular wrote a good article on the opening of the trial, and another on the final day, including closing arguments and the jury's verdict.  My take on that final day is the post right before this one, and can be reached by simply scrolling down a ways.

What will this verdict mean to the County?  First of all, its insurer, NMAC, will presumably pay the $250,000 and change to Mr. Granados, as well as a very substantial some to his attorneys -- who took on a case no one in Las Cruces had jumped at taking, and pursued it against significant obstacles.  NMAC will also pay the attorneys who represented the County.

Will the defense appeal?  As always, the first reaction among county folks I talked to was "Yes," but that may change on reflection.   I did not immerse myself in the legal arguments sufficiently to opine, and didn't do any independent research; but Judge Arrieta seemed to have little trouble deciding the motions made by the County; and any reviewing court will give a great deal of deference to the jury's view on most issues.  There was contradictory evidence on most points; there was enough evidence for a rational jury to find as this one did, and would have been enough evidence to support a contrary finding, because much depended upon the credibility of witnesses.  That's specifically the jury's area of authority, and they chose to reject much of the testimony proffered by the county -- and to take with a grain of salt the pro-County elements of testimony by witnesses who felt intimidated by the County or its lawyers.   In such a situation, unless there's a clear legal error that I didn't see, I'd urge the County (and/or its insurer) to pay up and move on, without incurring two sets of attorneys' fees for appellate proceedings that would merely delay the payoff.

And there are four or five more cases wending their ways toward trial.   Judge Martin has recused himself from hearing any of them, and I'm told the County disqualified Judge Arrieta from taking on any of the ones Judge Martin took himself out of.  That may delay trial -- and give two sets of attorneys time to spar further, upping someone's ultimate legal bill.  A rational county management would take a long, hard look at which of those, if any, deserve to be fought all the way to trial.

All five cases, including Granados, could probably have been settled for less than Granados will cost. I think personalities and stubbornness played roles in the County's failure tomake a serious try at settlement.   As I mentioned in the column, I don't know enough to quote odds on the other cases, although I did get the impression a few months ago that at least one of them seemed to the plaintiffs' attorneys a stronger case than Granados.  I do know that whoever was making the decisions didn't appraise Granados (and presumably the other cases) reasonably.

I don't say that merely because of the verdict.  I was thinking it before trial.  Watching the trial, I thought Plaintiff would win, and said so to both sides, but couldn't be sure.  Either side could have won, depending on how the jurors reacted; and if either side could win, that's something the decision-makers should have seen before trial and certainly saw during trial.  If the jury's going to give one of us $100, and I figure there's a 60% chance they'll give it to you, and each of us will spend another $50 on lawyers squabbling about it, I wouldn't have to be real smart to suggest we split the $100 before trial.  My 40% chance of winning it is arguably worth $40, so if I can walk away with $50 that's a good result, particularly since I save the legal fees.  Plus, unlike certain business cases, the jury verdict doesn't mean loser pays the winner's attorney fees.  In these cases, the County must pay attorney fees if it loses, but if Granados had lost he'd only have had to pay his own attorney. 

 Someone -- insurer, litigation counsel, in-house counsel, management, commissioners, or all of the above -- needs to take a fresh look at the merits of those other cases, without being distracted by personality conflicts among lawyers, defensiveness on the part of county officials, or arrogance.  If some of those other cases are frivolous, fight 'em.  The county should not become a pushover, settling with anyone who can find a lawyer.  But if an unbiased examination indicates either side could win, I'd rather our representatives make a reasonable try at settlement.  I don't think these cases have gotten that kind of look yet -- and settling them will cost more now than it would have.

And going forward, the county manager, county counsel, and directors need to take this jury verdict as an unbiased message that management styles need to change.  Whatever happens or should happens with the other cases now in progress, we shouldn't be generating new lawsuits.  This jury ws not blindly pro-Plaintiff; it didn't look like a group of people necessarily sympathetic to Plaintiff, and it did discriminate among its choices on the special verdict, finding that Plaintiff hadn't proved specifically ethic discrimination against him but had proven the County retaliated for his complaints about discrimination on behalf of his department.  In short, some of the citizens of this County have sent management a message (even though a friend of mine in the jury pool remarked during voir dire that we'd all have to pay a share of any verdict; he didn't make it onto the jury) and management would be well advised to take it into consideration.]

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