Sunday, August 18, 2013

County Commission Muffs One

Maybe I should apologize for giving the Board of County Commissioners the benefit of the doubt regarding allegations of misconduct by county managers.

Some of those allegations won a unanimous jury verdict against the County in Granados.  Jurors found the County had created a hostile work environment for Mr. Granados, and ordered us to pay him $250,000 – plus his attorney fees.  This week the County lost its post-trial motions, and must now decide whether or not to appeal.  I’d guess that any appeal would merely delay the payoff and have us paying two sets of attorneys to argue arcane legal points.

It’s unlikely that an appeal would result in overturning the verdict.

Other allegations appear in complaints in several other lawsuits now headed toward trial. Serious findings appear in a 2010 Audit.  Other charges have been made to me privately, sometimes quite credibly.  I wasted substantial time sharing some of that information with the Commissioners on the lunatic hope that they had some sincere interest in doing the right thing.

Actually, I still think they did.

My first reaction to Tuesday’s “Memorandum” urging sainthood for Sue Padilla was that someone has been secretly remaking Invasion of the Body Snatchers here in Doña Ana County.  (Either that or Commissioners were stealing my pain-killers while I recuperated.)  People who had spoken movingly of their hope to do the right thing then signed onto a whitewash.   Did the Commissioners get intimidated or get conned or just figure to leave it for the next county manager to clean up?

I don’t like writing this.  I have tremendous respect for Billy Garrett, and also great affection.   He’s a smart guy with good ideas and the County’s interest at heart; but if you’ll forgive me another silly analogy, he reminds me of the Tarot card that pictures a happy idealist wandering off a cliff.   He may be so intent on dealing with the serious problems and opportunities facing the County that he can’t force himself to look squarely at the internal problems alleged – like a guy so obsessed with getting where he’s going that he forgets to make sure his car has oil.

So what happened?  Maybe someone sold the Commissioners on the idea that the County’s chance of success in the upcoming trials hinges on the appearance that they unanimously believe that the jurors in Granados blew it.  That’s a reasonable position, though I’m not sure it’s the right one.  In effect, the Commission is circling the wagons – despite the cost to internal morale.  This could also hinder clear analysis of settlement possibilities in pending cases.

Their written statement seems to say that the County’s lawyers blew it.  They say that at the Granados trial the bad things said about Interim County Manager Sue Padilla were not rebutted.  Well, lawyers got paid $150 per hour or so to present such rebuttal.  I thought the lawyers tried hard to do so.  Therefore I have some difficulty understanding the Commissioners’ “Memorandum.” on this point.  There was “little testimony offered to dispute the negative characterizations of senior county managers”?  Well, either the lawyers missed it, and should be fired, or there really wasn’t much credible testimony of that sort to be had, in which case the Commission shouldn’t issue a Memorandum impugning the jurors or the court.  And since I didn’t see any Commissioners at trial, except one who testified briefly, how do they know what witnesses did and didn’t say?

The Commission thinks it’s “unfortunate” that there’s a “suspicion that some County managers may be unprofessional and vindictive”?  Well, it is unfortunate.  Trial testimony strongly indicated that such suspicion might be well-founded.  The Commissioners had a chance to do something about it: a truly independent investigation, not one run through the County Counsel’s Office.  They chose instead to rely on a report that some or all of them knew to be tainted and to make a strong statement that the jurors and the complaining former employees (many of whom are not plaintiffs in lawsuits) were all wrong.   Excuse me, but doesn’t the Commission’s conduct guarantee that suspicions will linger?

The Commission is concerned that “a second supposition is that poor employee performance and bad behavior will be tolerated because of the Granados verdict.”  Well, yeah.  The Commission has one employee, Sue Padilla.  Extensive sworn testimony to her poor performance will cost the county more than half a million bucks once it’s all added up; and the Commission is tolerating it.

Writing this column I feel a deep but vague sort of sadness.  Of course I empathize with present and former county employees who, when the Commission responded to Granados with an appearance of openness to face facts, felt unexpected hope things might improve.  Sure, I regret wasting substantial time trying, within the limits of journalistic confidentiality of sources, to share information with the Commission.  Yet neither explains quite why I feel so personally sad.

Above all, I feel sad for the Commissioners.  Barring the Body Snatchers explanation, some of them got conned or intimidated into a statement that ran against what they knew and felt.  That can’t feel good.

And I sympathize.  Commissioners were in a tough position – and getting advice from folks whom trial testimony tended to implicate in the problems they were deciding how to handle.  Me, I think they jumped the wrong way.


[The column above appeared this morning -- Sunday, 18 August -- in the Las Cruces Sun-News. Or at least, I'm told it did. I haven't yet seen my copy of the paper this morning.  I know the column appeared because I received a comment: 
"Your column made me cry actually. But, then again, after all they have put me through, I cry easily now. I have worked a lot of places in my lifetime but DAC has some wonderful and very capable employees. I guess what sets them apart to me from my past experience is that most of them "have a heart." You will hear them say things like, "what our constituents would like to see..." I have never heard a word about constituents from the top tier mind you, but definitely from clerks downstairs to the custodians to those filling our potholes. Many of them know who they work for (the constituents) and take pride in that trust placed with them. They don't take it for granted as I have seen in so many government settings in my life. As I have said countless times now, they deserve so much better."
They do.  I think things will improve in the foreseeable future, despite my disappointment with the commission's conduct described in the column.]

Sunday, August 4, 2013

State Freezes Funds and Leaves Public in the Dark

Let’s work this one out together.  Is the move by Governor Martinez to destroy several southern New Mexico mental health care providers good government or something else?

To put it another way, did Governor Martinez have to do this – or was her Administration looking for an excuse?  Score each paragraph below from 0 to 10.  Note down zero if it doesn’t at all tend to show this was a good-government move, 10 if the paragraph gives you serious pause for thought, or something in between.

The State hires an audit group, Public Consulting Group, to investigate possible fraud by the agencies, knowing that in North Carolina, Public Consulting did a similar audit and claimed $38 million in recoverable overpayments, but North Carolina’s state auditor found that the true figure was a little less than a tenth of that.

While most auditors discuss issues in detail and invite the subjects of the audit to point out facts or address possible problems, Public Consulting, according to folks here who got audited, made  no such efforts, but just came in to get files and folders without ever inviting or permitting any dialogue regarding the contents.

When the audit finishes, the State – knowing that a freeze of funds will essentially kill the mental health providers involved –  freezes funding, claiming the freeze was legally required, when in fact the federal laws and regulations gave the State discretion whether to freeze funds pending further inquiry.

Although experts would suggest that mental health, substance abuse, and suicide prevention clients might be those most in need of continuity in providers, the State determines that future needs here will be served by certain Arizona companies.

The State claims the audit (which started in mid-March, as far as one company knew, and reported a few weeks ago) requires it to engage folks from Arizona, on an emergency basis, when in fact the State had been talking with the Arizona folks as early as January, apparently well before any audit findings and perhaps before the audit even started.

The State claims that Optum Health, which had been overseeing the providers, reported the providers as fraudulent right from the start, but others say that’s not so – and point out that Optum’s own record-keeping inadequacies made Optum a nightmare to deal with and had elicited a $1 million fine a few years ago.

Although the New Mexico Public Records Act would appear to require release of the audit findings as a document of public interest, the State refuses, claiming that since it’s now turned the audit findings over to the Attorney General, the audit report is exempt as a criminal investigative report.

When the New Mexico State Auditor wants a look at the report, the State refuses; that is, the audit is good enough to destroy companies and perhaps lives over, but not solid enough to show trained and neutral eyes; and when the New Mexico judicial system orders the State to show the Auditor the report by a certain deadline, the State ignores the deadline – displaying a clean-cut scorn for legal constraints while insisting the mental health providers follow the law to the letter.

A competent, neutral examination of the detailed findings of the audit shows . . . oops, forgot.  We have no way of knowing what such an examination would show, because the State doesn’t think we’re grown up enough to have a look for ourselves.

If you’re scoring home, it can’t look too good for those of us looking for good government.

Many people are appalled.  When I ask folks about this situation, they reply with words like “hit” and “rape” and “scary.”

I don’t know how it’ll all turn out, or how it should.  

I do know that, to keep payroll going, Roque Garcia put up $50,000 he can’t well afford to lose.

However, it may turn out that his group and some or all of the others have been stealing.

But if the audit and funding freeze were righteous, why is the State so unwilling to show us so?  Can’t be fear that the mental health providers will have a better defense, because if the facts were so unmistakably damning, letting opposing lawyers see those facts today instead of next month oughtn’t to make much difference in the ultimate result.

Of course, too, given scarcity of funds, the State could reasonably have guessed that any providers which were wronged wouldn’t have enough chips to say in the game another round.  How can folks who can’t keep their doors open pay lawyers to do a top-notch job seeking justice for them?

I can’t help guessing that that disparity of resources played a role here.  Susana and Sidonie can spend your money and mine lawyering this for a decade.  They likely figure Roque and the others can’t.

These things touch our lives, sometimes deeply.  I don’t want to see this end without a full hearing.  Not only the mental health providers but you and I deserve to see this one well-lawyered on both sides.  If we were being taken, we deserve to know that.  If this is all a political attack, with very little real justification, we deserve to know that too.

Meanwhile, the providers have asked the Tenth Circuit U.S. Court of Appeal to enjoin the State from freezing funds pending some showing of justification.  The State is due to respond before this column appears.

[The column above appeared in the Las Cruces Sun-News this morning, 4 August 2013.]
        In case the column doesn't make this clear enough: I'm not saying the mental health providers aren't guilty.  I have no idea.  Some or all may be guilty of intentional fraud.  Some or all may be guilty of the kind of negligence and confusion in billing that amount to inaccuracies warranting some refund to the public coffers but not worth driving 'em out of existence.  Or maybe none are guilty of anything.
        Even the fact that the existing precedent (the North Carolina audit done by the same Boston consultant that got whittled down to less than 10 per cent of the claimed over-payments once the state auditor got a look at it) doesn't mean the same will happen here.
       What concerns me is the high-handed process.  What concerns me is the refusal to be reasonably frank with the public or even the New Mexico State Auditor.  What concerns me is the irregularities already apparent in the state government's conduct in this matter -- and its apparent refusal to follow the orders of a New Mexico court order mandating disclosure to the auditor.  
       Maybe everything the Martinez Administration did will turn out to have been justified; but if so, we deserve to know that.   (Unfortunately the spokesperson for the Department hasn't yet gotten back to me, so I can't even add in here the Department's best responses to some of the questions suggested in the column.)