Tuesday, July 23, 2013

Knee Replacements, Spine Replacements, etc.

    The doctors, nurses, and staff seem to be doing a splendid job with me today and tonight, and although I'm experiencing some pain, that's inevitable -- and perhaps exacerbated by trying to stay alert long enough to write something about the county.  That effort's been hindered by tiredness, pain, computer problems, brain problems, etc.  So I should write anything.
     Certainly I shouldn't write that the available evidence so far could be read to suggest that while I was in here getting a knee replacement some county commissioners should have been in here for a spine transplant.

  •      Their apparent public silence frustrates a large set of employees (as well as a lot of vendors, former employees, and contractors with strong feelings on the issues) who briefly had hopes for a fair investigation and serious consideration of whether or not serious management change(s) are necessarily; and
  •       At a time when they're (reasonably) asking citizens to vote to pay the County more money, they're shooting themselves in all their ten feet by not deigning to say anything about serious and debatable issues they had intended to take a deeper look at; and
  •        So far as the public aware, they're maintaining that silence and perhaps inaction based on the advice or lack of advice (or acquiescence) of a county counsel whom at least some of them would appear (fairly or unfairly) not to trust fully. Certainly those employees / ex-employees who thought that that County Counsel had some commissioners intimidated or otherwise under his control will read the present apparent inaction as further evidenced supporting their beliefs.  Particularly if everything now appears to them to be on the up-and-up and Mr. Caldwell and Ms. Padilla are doing a great job, the silence is unfortunate because it doesn't clear the least bit of air, while undermining people's receptiveness to some information if and when it's forthcoming.  That is, even if the present appearance isn't precisely accurate, the appearance itself is doing or compounding harm.
      I'm sure many citizens and vendors and employees hope things aren't as they seem.

      At the same time, the fact that they were in closed session for quite a long time (assuming it was not all discussing the collective bargaining issue) is good news, suggesting that they (or many of them) are working hard toward a fair, just, and sensible next step or set of next steps.  As I've said in other posts and columns, they're in a tough spot, perhaps a uniquely tough spot.
       Maybe the available facts -- that they apparently took a very long time, and were extraordinarily silent about the result -- should tell us that they have set in motion an appropriate step or steps and folks like me should shut up.  On the other hand,  they'd have needed to step delicately along the edge of the laws on open meetings.  Beats me!

       I'm far too tired now (and, yeah, in some pain and fighting technological difficulties) to write more, which is probably a good thing for all concerned. 

        Love you all!
                                                                            - p.

ps:  soon after turning computer off for the night, i had a further thought, though not the energy to try to add it.  that thought, which may seem kind of obvious or may seem rather odd in light of the tone and content of the post, depending upon your point of view, is simply that whatever with this particular issue, or any particular issue, i have tremendous respect and appreciation for the five commissioners.  Just watching a bit of yesterday's events real-time, I had the same reaction I often do: those commissioners do a tremendous volume of work on our behalf; beyond what we see, the time it takes to be prepared for such a variety of issues is significant; and, by and large, they are a sharp, diligent, and well-intentioned lot.  That doesn't get said as often as it should.  I sure wouldn't want to have to try to do all that they do.  
They met yesterday at 9 a.m.  Around 11:20 they still hadn't gone into closed session.  I heard from someone that the closed session itself lasted five hours or something.  Each of us gets to say our particular piece for a few minute then go home.

Sunday, July 21, 2013

Sunday Column: Doña Ana County

I hope and believe that the Doña Ana County Commission is moving toward a full – and fully independent – investigation of the problems with top-level county management.

Jury verdicts in Slevin and Granados are but the tip of the iceberg.  The Slevin verdict was huge, but the Granados verdict more significant, because much of the testimony pointed to systemic management problems.

Privately, employees and former employees had described working in “a climate of fear.”  In Granados, loyal employees testified to fears of retaliation for their testimony.

Employees had told me of intimidation.  Several witnesses looked intimidated.

People had spoken of the management styles of Sue Padilla and Silvia Sierra as based less on performance than on who’s “in” or “out” with the boss.  Some trial testimony portrayed the same thing.

How significant is the problem?

I’ve spoken with many employees and former employees.  I’ve tried to keep an open mind.  I’ve assessed credibility and tried to verify things independently.  Since I do not have access to all the documents and some folks are not free to talk to me, my information is necessarily incomplete.

If I were required to show that there are reasonable grounds for serious disciplinary action against Assistant County Manager Sue Padilla, County Counsel John Caldwell, HHS Director Silvia Sierra, and HR Director Deborah Weir, I believe that with power to subpoena documents and witnesses, I could do so.  On some issues, I probably could do so now. I stop short of stating any misconduct as fact because I haven’t had the opportunity to do a full investigation.

Some issues are somewhat out in the open.  An audit by Milton Duran found that Ms. Sierra’s Department routinely approved fraudulent applications for health services, many with false social security numbers.  Several women who worked under her at that time say that when they raised the question of fraud, Ms. Sierra ordered them, sometimes angrily, to approve all the applications.  They were honest (as Sierra had told them to be) with the auditor, when he came around.  Duran’s audit put the total wrongly spent in one year at two or three hundred thousand dollars.  One woman working there said some fraudulent applications were for “amounts in the tens of thousands.”

Mr. Duran and others say that he was driven from the county employ, in part based on misconduct allegations that may have been trumped up.  No one disproved his audit findings.   The young ladies who were honest – and who were assured of protection as “whistle-blowers” – were retaliated against in various ways, including the elimination of their department and improper interference with their efforts to work in other positions within the county.

That just ain’t right.  (Management delayed filling the audit position, then hired a splendid candidate who took a nine-day look at the way things were run and resigned.  Seven months ago.)   Glenn Thomas, currently investigating matters for the County, reportedly responded to an account of these events by expressing shock that Ms. Sierra still holds her position.

More appalling allegations have been made, less publically but quite credibly, against one or more of the four members of management named earlier. (To protect sources, I wont discuss these in detail.)  I can’t say whether these allegations are true; but it would be dereliction of duty for the Commission not to mount a serious investigation.

The interviews conducted by Universal are well-intentioned.  Interviewees tell me that the investigator did his work appropriately, in tone and manner, and assured them that what they said would not go to Mr. Caldwell – but also that he taped interviews and reported to Mr. Caldwell.  While he reported being flooded with calls from employees, other employees did not speak with him, because of their fears he’d tell Mr. Caldwell what they said.  Others gave only the most muted versions of what they’d have liked to say.  Commissioners should factor in this fear and reticence when assessing the final report.

The Commission is in a tough spot.  It’s only employee is Ms. Padilla.  It must work through her.  It gets its legal advice from Mr. Caldwell.  Commissioners are precluded from the kinds of direct inquiry or action citizens might expect from them.

The facts, testimony, and allegations warrant a special counsel,  an independent and able committee or commission, or an appeal to the state audit department.  Such action could also help ameliorate the related morale problem.

I hope and trust that the commissioners will give serious consideration to such action.  (The EEOC complaint filed by Ms. Sierra should neither motivate nor dissuade them.)  Any inquiry should be fair, both to employees and to upper management.  And it should be conducted discreetly but in a way that not only is fair but appears fair to employees and the public.

Meanwhile citizens should make every effort to keep these issues separate in their minds from the upcoming vote on bonds and taxes.   The commission seems to be headed toward doing the right thing on these issues, if a little later than I might have wished.  The alleged misconduct by some highly-placed individuals, whether the allegations prove accurate or inaccurate, has no relationship to whether or not the County needs the items the vote concerns.  Voters should consider each of the ballot choices on its own merits.

Granados has helped the Commissioners recognize the problem.  They must face it.  I believe they will.

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 21 June.  If you haven't been following this story, something like ten of my last 12 blog posts concern the County, including a day-by-day account of the Granados trial that ended July 3rd.

      If I seem to have Doña Ana County on the brain recently, sorry; but it's a critical moment for our little county, and an interesting one.

      If I seem to have Doña Ana County on the brain recently, and you've strayed to this blog for nature-writing or photography or some other subject, sorry.
      But it's a critical moment for our little county, and an interesting one.

       Monday the Commission reportedly will receive a draft of the investigation done by Universal Investigations of Albuquerque.  It may not contain as much information as it might have, but I suspect it will contain sufficient information to warrant further action.  Some of the folks who spoke to Mr. Thomas told me about their visits with him.  He said he was receiving great numbers of requests from people to hear their stories or review documents they had.  He visited with one ex-employee at her current place of employment, and (I'm told) walked away shaking his head in amazement over the fact that Silvia Sierra, for example, is still a Director.  He apparently found some of what he was told to be pretty compelling.  He seems to have tried to accomplish his mission successfully, despite very reasonable fears that he'd mostly steer information right to some of the folks he was investigating.

        Tuesday the Commission, following its regular meeting, will meet in closed session "to discuss personnel matters involving the County Manager, the County Attorney, and the Human Resources Director; and threatened or pending litigation involving employment discrimination; and Granados v. DAC."  A lot of employees are holding their breath.]

Friday, July 19, 2013

Thoughts on Another Local Anti-Same-Sex-Marriage Column

Neal Hooks’s most recent column on same-sex marriage suffers from the same disability his others do: he can’t quite see beyond his own set of beliefs.  (At least, in writing his columns, he does more than the follow whose definition of a good column is that the phrase “Socialist Progressive” or”Progressive Socialist” appears in at least every other sentence.)

He makes an odd distinction between two kinds of freedoms: the Websters’defined “power to determine action without restraint,” on the one hand, and “constitutional freedom which has “an added ingredient of morality.”  

Well, uhh, that’s just nonsense.

The framers of our constitution included some pretty great men.  Although many were Christians, many of the framers tried heroically to rise above their own prejudices and preconceptions and write a document that would enable government to help keep us safe and healthy and independent and allow individuals as much freedom of choice as was consistent with the public good.  Obviously reasonable men and women could differ as to where to draw certain lines.

Thus the “added element of morality” is not at all constitutional.  The problem is that your morality may not be mine, and the government ought not, for the most part, to be interfering with either of us if we’re not harming or endangering someone.

The columnist’s “morality” has same-sex couples as inherently “immoral” for two reasons: you read your Bible as saying so, which I’m not sure it does; and heterosexual couples, at least theoretically, can produce children.  (But note Judge Vaughn Walker’s excellent point that he marries many elderly couples who ain’t gonna accomplish that.)

The Constitution doesn’t recognize anyone’s religion as a source for law.  That’s by design.  Given the prevalence of Protestant Christianity in the 19th Century U.S., it ain’t no accident that the framers made it real clear that Church and State were two separate entities.

Further, the assumption that making love with the possibility of creating children is inherently more morally sound than making love without the possibility of creating children is questionable.  For example, we live in a world where overpopulation and the scarcity of resources are major problems.  Homosexual couples mostly do not egotistically produce babies of their own “blood” but rather adopt children who desperately need love, then nurture them in the way the Right to Life folks inaccurately claim will happen to unwanted babies.  I could reasonably argue that they belong on a higher pedestal of morality than the rest of us.

Yes, babies are beautiful, particularly when produced by a loving couple with the stuff to stay together for awhile with love.  I’m a sucker for that stuff, like anyone else.  Tell me a couple I know just had a baby, and I’m delighted.  Logic may say there are too many births, but the heart reacts a little differently to specific examples.

I’m equally delighted – if not a hair more so – watching a loving homosexual couple love and nurture their children.  That can be beautiful too.  If there’s something unique and beautiful about a mother with the child she’s given birth to, just as animals give birth to children and protect them in the natural world, there’s also something special about watching a couple with so much love to give, whom society has tried to deny the right to raise children, bestowing love and joy on infants who need it as desperately as the desert needed our recent rains.
Yes, some folks are so mired in their own personal morality that they must try to force us all into it, and would deny that sharing of love.  That only makes it more beautiful when it finally happens.

Mr. Hooks equates homosexuality with “hedonism” and heterosexual with “virtuousness”’ but he’s mistaking his innate desires and what he’s been taught for some absolute system that imprisons us all.

Same-sex marriage is about people who love each other and dare to pledge to spend the rest of their lives honoring and cherishing each other.  That doesn’t sound terribly “hedonistic” to me.  The phrase “Doing what you know is right, rather than simply doing what you desire” rolls easily off the tongue of a man whose desires happen to be the ones the dominant morality permits.  I guess I’d ask such a fellow this: if we lived in a world where homosexuality was the law and heterosexuality was illegal or frowned upon, are you so sure that you would stay chaste (or enter into a homosexual marriage) and that if you  met the lady of your dreams would you cheerfully submit to the rules if the folks with power and the most popular religion told you that you could never marry her?  That’s what such a man asks our gay friends to do.

I guess I’d also urge such a person to consider the likelihood that one of his children, one of his nieces or nephews, or a co-worker (and maybe more than one) is gay.  The likelihood is that s/he is gay, as distinct from choosing to be gay.  Are you so sure that Jesus would reject such a person?   Are you so sure that you want to cause that person additional pain by repeatedly declaiming the inferiority and immorality of such folks?

I happen to desire women – or, in recent years, one woman.  I don’t feel the least bit more virtuous than my neighbor who happens to desire folks of his or her own sex.  What matters is love and consideration and honesty, nurturing and cherishing each other.   Besides, how could something I had no particular choice in, such as the basic nature of my sexuality, make me more or less virtuous?

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.


Saturday, July 13, 2013

Arab Spring in Dona Ana County ?

    The Granados verdict and the County Commissioners' sensible decision to initiate an outside investigation have had quite an affect on morale over at that big building on Motel Boulevard.

    Wednesday, one hears, "you could hear a pin drop" around some of the county's top administrators, but other county employees and former employees were trembling with hope that they would finally be able to speak to someone of things they'd seen or experienced or been made to do that seemed very wrong to them.

    Later another employee said the place was "imploding."   I was told that people who want very much to be interviewed by the investigator were not "on the list."  They knew or believed that John Caldwell put together "the list" and were described as "irate.  Employees are flooding the Commissioners.  Time for change."

    Another former employee wrote of two former employees I've talked with, "They both have so much information, and so much hurt.  I know so many people who have truly suffered from the management style of the County. . . . I was one of the lucky ones.  The damage was only to my ego, . . . but I never thought of myself as 'lucky' while it was going on.
    "What is needed is far more than another audit or investigation.  What is really needed is something like the Truth and Reconciliation hearings following Apartheid.  I know, a tad dramatic, but truth telling and consequences would be a grand thing."

    Two citizens with extensive experience of the county government and governments elsewhere wrote, respectively, "I find myself overwhelmed by outrage" and "I'm going to forward them your column with a note that says "What the fuck?"

    The last call of the evening is a young woman who, after asking if I'm Peter Goodman, says, "My name is ____ and I work for the County, and I just wanted to thank you . . ." before breaking down in tears.  After a wait, we talk a bit.  Working for the county has been "hell" though she works hard at her job.  She is angry that she isn't on "the list" to be interviewed by the investigator -- and the people who are on the list either are managers or have nothing to do with the problems being investigated.  I tell her that that may not be entirely John Caldwell's fault, because the Commissioners apparently said they wanted to start out by interviewing managers and directors.  She apologizes for bothering me, and I tell her it ain't a bother -- that although I'm doing what I'm doing because I want to, after working on this stuff and having my wife put up with me spending so much time on it, hearing from folks like her is wonderful.  She says to thank my wife.
    As I hang up I realize I shoulda said, "It ain't me, babe."  I should have said to thank Jorge Granados, not me.  Thank his lawyers, for persevering in his case, despite all the hassles and uncertainties and unpleasantness of litigation.  Jorge'll get well paid, and so will they, so I'm not nominating them for sainthood; but they stuck it out and prevailed against vigorous opposition, and made a significant change in the mood of the county's work-force.  And helped the commissioners recognize that certain alleged problems were real and serious.  They deserve credit.

    By Thursday or Friday some of the people who weren't on the list were calling the investigator, Glenn Thomas, President and Owner of Universal Investigations.  He was talking to them, and reaching out to at least some of the ex-employees they recommended he talk to.  While some expressed concern that the investigation might report whistle-blowers to John Caldwell or be a whitewash, others either had faith or just didn't care anymore.
    One asked me whether I thought she should talk to him.  I couldn't say.  I guess I'd advise former employees to talk with him about what they know personally, but be very cautious about identifying current employees with pertinent information.  Current employees? Follow your conscience.  I mean none of this as a negative about Mr. Thomas,.  I haven't spoken with him.  He's an experienced investigator who was a cop for nearly a quarter-century.  If he's serious about his reassurances that he'll report only to the Commission, I'm glad he's talking to some of the folks he should talk to.
    He has a chance to do some real good.

    Someone needs to gather the facts and someone needs to judge what to do about them.
    And we need to recognize how astonishing it is that so many people are talking.
    A County Commissioner and an employee testified in Granados or have said separately that they were retaliated against for testifying in the Ramirez case.  Other employees testified in Granados to a fear of retaliation if they testified in a way the management didn't like.  According to many, a woman in HSS was fired on a pretext after she complained about a male employee's sexual harassment of a female employee -- and then the male employee was fired some time afterward when there was a second such incident.  Milton Duran, the auditor, testified that they retaliated against three young ladies who cooperated with him, telling him the truth in an audit that made serious findings against the HSS Director.   There are accounts of people being intimidated not to testify in termination hearings or discouraged from testifying the way they want to.  People who know some of the witnesses in Granados who testified more favorably toward the County express sadness and disappointment, saying that some of those witnesses had recalled things somewhat differently before the trial.  (There are other points I won't get into because they point too clearly to specific people still working for the County.)
    I'm not the judge.  I don't know the truth.  I'm not a witness with first-hand knowledge.   I do know that I've never worked anywhere where so many people said such serious, specific, and negative things about their bosses.  When that suddenly happened in a particular department in the law firm, the supervisor got away with things for months or a year, but was eventually canned.  (I did see such universal and serious criticism of the president of a one company we litigated against in a few cases, and having interviewed ex-employees who'd suffered under him made working on those cases against him even more pleasurable for me.  Juries didn't like him much, either -- a lesson decision-makers might consider with regard to the next several cases coming up against the county.)

    Anyway, at times this week the mood people were describing or exemplifying did remind me of the Arab Spring.  A flood of sudden spirit, overcoming old and well-grounded fears, and somehow forcing change.  Some leaders were sent packing.   Some positive changes occurred.  On the other hand, it didn't work out so well for everybody.

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?


Monday, July 8, 2013

Saying Good-bye to the Cows

The sun is just barely up, on one of the longest days of the year.

I stand around in the corral.  One of the horses approaches me and requires me to spend nearly as much time petting him as I do shooting photographs, but that's all right.  The others mostly maintain a safe distance.

Soon I'm watching them race around the corral, staying just out of reach of the men and boys looking to catch and saddle them.

Three generations of cowboys gradually catch their horses and begin to brush, bridle, and saddle them.

The humans and the horses will work together as the day heats up.

They are rounding up the cows to ship them all to Oklahoma.  Just ain't enough water here.  "We're lucky we got somewhere to send 'em there.  My cousin."

Still, it's sad.

The ranch used to run from the Rio Grande into part of what's now White Sands Missile Range.  A lady named Evelyn ran it for 64 years before these folks bought it from her in 2002.

Now there ain't no rain.  The Big River, the Rio Grande, is a dry meadow.  

Now the cows are moving to Oklahoma.

Shouldn't matter much to the cows, but it does to the people.  Very much, I think; but they don't waste time saying so.  It's life.  

No one will write a newspaper story with a banner headline about the departing cows.

Maybe killed by the greed of heartless corporations or the careless piggishness of all of us, or maybe killed by natural global cycles as indifferent to the cows as the  cows are to the ants underfoot, something is dying here.  Something that matters.  Something that was here for a long time, struggling against the elements.  Something of which the earth some day may bear no trace.

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.]

Wednesday, July 3, 2013

Jury Finds for Jorge Granados

     I'll assume you've been following the trial on this blog [for which, thanks] and cut right to the chase.  [If you haven't, but are interested, please page down to earlier posts -- or go back to last Tuesday's post  [Day 2], and/or Diana Alba Soular's good article on the opening of the trial, then skim through the succeeding days' posts.)  You can also just page down to Thursday's post covering Day 4, or further down to the posts for Days 2 and 3.]
     At about 7:20 p,m, the jury of twelve of his peers handed their verdict in the Granados case to Judge Arrieta, who then read it:
      The jury did not find that Dona Ana County had discriminated against him for being Hispanic, bud did find that the county had retaliated against him for raising discrimination complaints and had created a hostile working environment.  Both sides had agreed that if the jurors found the County liable, the damages for lost wages and benefits would be $60,497.05, and the jury foreman duly entered that number on the verdict form.  The jurors then found that the County's conduct had caused Mr. Granados emotional damages as well, and awarded an additional $190,000.
      The verdict was unanimous.  The foreman later told me that there'd been "a majority" from the start of deliberations.  A second juror told me that several jurors had wanted to award $250,000 in emotional-distress damages.
       As soon as the verdict was announced, lawyer Daniela Labinoti began sobbing, and embraced first her client then co-counsel Brett Duke.  Mr. Granados's wife and daughter were also sobbing -- as was Mr. Granados when he came outside and embraced one of the jurors, thanking him.
        "I didn't come for the money," he told the juror.
        "We figured that out," the juror replied.  The same juror had just stated to us that "there should be an investigation into Ms. Padilla" and that "we wanted to set a precedent for the county.  Paying out all that money in the Ramirez case didn't set a precedent, so we wanted to, and stop all this harassment."
        [btw, Diana Alba Soular from the Sun-News was present for closing arguments and the announcement of the verdict, so there should be a Sun-News story tomorrow morning.]
.       [I've also written Sunday's column about the case and the county management, although I'll make some changes to incorporate the verdict, having submitted the column an hour before the jury submitted its verdict.]
        Among other things, my column noted that whatever this jury might find with regard to Jorge Granados, the larger jury was still out concerning county management. It still is.  But these jurors -- twelve average folks, not primarily Hispanic, not necessarily an unduly sympathetic jury to Mr. Granados's case -- have weighed in loud and clear.   A county citizen who knows there are a half-dozen somewhat similar cases out currently wending their way toward trial might wonder how the verdict will affect the county's view of those.
         A citizen might reasonably wonder too about the conduct of this one.   Hindsight is always 20-20, but I came to believe weeks ago that the county (or, more precisely, its insurer) should try to settle the case.  I'm pretty sure the case could have been settled for a lot less than the county (or the insurer) will now pay: $250,000 to Mr. Granados, and several hundred thousand dollars to his lawyers and the County's.  As trial went on, I thought Plaintiff was winning.  I told both sides today that I thought the verdict would be for Mr. Granados, although I guessed the amount of money would be less and added that obviously none of us could know.  The county's insurer, or the commissioners, or the county counsel -- whoever makes these decisions -- did not choose to re-open settlement discussions during trial.
        A little-known secret outside legal circles is that your people win trials, not your legal arguments.  With apologies to friends in county administration who tell me Mr. Granados is a liar, he didn't seem like one this week -- to me or to the jurors.  I'm guessing he may have stretched some things to fit his case into the right legal pigeon-holes, but maybe he didn't even do that.  He didn't seem like a liar or a greedy man.  Rather obviously, he seemed to the jurors a sympathetic figure and a straight shooter.  Most witnesses, though employed by the county, certainly said he was honest and trustworthy -- and said it more clearly than they said much of anything else.  The County did not show otherwise at trial.
        Watching the jurors through the trial, I felt as if they were leaning toward Plaintiff.  Trying to sense a jury's mood can be a treacherous game, but there were some clues in body language, in whose jokes they laughed at, and the like.
        More to the point is whether or not the verdict will affect the county's conduct or its decisions regarding the additional litigation.  Without pre-judging those other cases (and as to most of them I know little more than the names), I'm concerned.  Can the county's insurer and legal team turn off their personal views and look at these cases the way jurors would, in order to calculate settlement value?  If there are trials, will we again see witnesses who work at the county, and feel intimidated by counsel or management, try doggedly to hide their resentment of that intimidation and shade their testimony to be as favorable to the county as they can really make it?. Is there some reason to think jurors won't see through that six months from now as easily as they did this week?
        I know from my own investigation of the county that in certain departments there's a climate of fear.  That's been described or expressed to me by people who look me in the eye and sound generally credible -- and by quite a few of them, while others are too scared even to say "Hello."  Still others appear out of nowhere now and then and give me a sign that although they can't speak to me, and courteously decline to do so when I ask, they see things wrong in county government that they wish were known more generally by county citizens.
       At the same time, I genuinely enjoy and respect some of the higher-ups about whom I find it necessary to write uncomplimentary things.

      The jury began deliberating at about 3:20 p.m. Wednesday.
Closing arguments presented a rich contrast in styles and substance.  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 aggrieved victims of discrimination here that they can speak up.
Defendant’s counsel, Raul Carrillo, spoke calmly and dispassionately, and urged the jurors to consult the mass of 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 favorably to Granados were malcontents.
        The county or its insurer will likely decide to appeal.  I'll be interested in their grounds.

Monday, July 1, 2013

Granados v. Dona Ana County Day 6

[If you're a juror in this case PLEASE DON'T READ THIS -- and if you know a juror in this case, please don't send him or her a link to this.  If you're not a juror, feel free.  This post covers Monday, July 1st, the sixth day of trial.  If you haven't been following the case, there's some background in Tuesday's post  [Day 2], and in Diana Alba Soular's good article on the opening of the trial.)  You can also just page down to Thursday's post covering Day 4, or further down to the posts for Days 2 and 3.]

Today Plaintiff rested, after calling Internal Affairs Investigator Guadalupe Quezada and Plaintiff's wife, Juanita Granados.  Defendant, after an unsuccessful motion for a directed verdict, presented the bulk of its case, but did not finish.  Human Rights Director Deborah Weir testified for much of the day, and there were also brief appearances by Donald Fenerty, Henry Cornelius, Paul Dugie, and Misty Dawn Benavidez.  Testimony will continue tomorrow morning and probably end by mid-afternoon.  The jury will likely get to go home early, while Judge Arrieta and the lawyers finish hashing out jury instructions, and then closing arguments will occur Wednesday morning -- starting at 10..

The single most striking aspect of the trial so far is the vast number of County employees who have admitted during their testimony that they feared retaliation by their employer if they testified truthfully.
      It struck me at some point that in decades of doing trials (and, before that, covering them) I've never seen that.  I've seen witnesses who seemed cowed by their employer and who tried to say the opposite of things they'd told me casually in private.  But I've rarely seen so many witnesses whose testimony was largely favorable to the county concede in one way or another that they feared retaliation. Pretty much every Hispanic employee-witness has made such a statement.  However, each testified that s/he was telling the truth from the witness stand and had not been influenced by retirement concerns or fears of retaliation.  

When Ms. Quezada, a ten-year county employee, testified this morning, the following Q and A sequence occurred:
Q. Are you afraid of testifying today?
A. Yes.
Q. Are you afraid of retaliation?
A. Yes, I am.
      In fact, her substantive testimony was minimal.  She testified to having located and attached to her report certain documents Plaintiff had been accused of destroying. This was approximately two months before Defendant was terminated.  She testified she hadn't been aware he'd been accused of destroying them.  Asked whether it was unfair to accuse him if the documents were in the possession of the Human Resources Department, she carefully replied, "If that is how it is, I would have to agree with you."
      On cross by Defendant, she testified concerning the documents regarding discipline meted out to two Road Department supervisors.  She also testified that she'd written a memo regarding the Jason Ireland incident, but that it contained solely information provided by Ms. Weir, and that she hadn't spoken with Mr. Granados.
      Regarding her fear of retaliation, she testified that she'd testified in one other case, involving a friend, and had suffered a neither a pay decrease not a decrease in benefits or authority.  Asked whether, then, "in any objective sense" she had not been retaliated against, she replied, "Not yet."

She was followed by Ms. Granados, who testified that she and Plaintiff had been married 21 years and had two daughters, and that they'd moved back to Las Cruces, despite a pay-cut for Mr. Granados, so as to raise their daughters around extended family.  
      Regarding her husband's reaction to his notice of termination, she said he was "in shock" but pointed out to her his right to a hearing, and expressed confidence that the hearing would  turn things around.  After the hearing, she testified, "I guess he was in shock.  He came out and said, 'They didn't even let me speak.  Brian kept interrupting me.  They'd already made up their mind to fire me.'"
      Later, she said, he became "very withdrawn."  
      She said that what she wanted from the trial was "to clear my husband's name.  He was accused of being dishonest."
      Her testimony was potentially moving but not highly substantive.  I wrote in my notebook as she finished, "I wouldn't cross at all."   Moments later, after a brief conference, the County's lawyers announced, "No questions, your honor."
      That ended Plaintiff's presentation of evidence, at 9:18 a.m.

      Defendant then moved for a directed verdict.  Such motions, which are probably made by defendants in more civil cases than not, can occur at the end of Plaintiff's case.  Defendant is essentially saying that it is entitled to have the Judge direct a verdict for Defendant because Plaintiff has failed to introduce, as to some required element of each cause of action, sufficient evidence that a reasonable jury could find that particular cause of action to be proven.  That is, even if everything said so far is true, Defendant wins.   (A simple example: if my cause of action involved discrimination based on race, and I failed to put in evidence regarding my race, Defendant could prevail on a motion for directed verdict; in a case for patent infringement, if Plaintiff failed to show evidence that s/he was the legal owner of the patent, Defendant might win such a motion.
      Here, briefly, Defendant's argument was based in part on a lapse of nearly two years between Plaintiff's passing on of a complaint by a subordinate and Plaintiff's firing meant, under previous court decisions, that without specific evidence that passing on the complaint caused the firing, a reasonable jury could not hold that there was a causal connection.  Defendant also questioned whether that complaint, which referred to Ms. Padilla acting against the complainant's department because it was mostly minorities and people of low education, concerned ethnic origin or other factors.
       Judge Arrieta denied the motion and stated that "Clearly in my mind," there was some evidence from which a jury could find discrimination based on national origin.  I should note that this does not mean Judge Arrieta thinks Plaintiff should win, but only that Plaintiff has produced enough evidence to go forward and let the jury decide who wins.

Donald J. Fennerty, briefly the Interim Human Resources Director and now employed at the Detention Center, testified that he recalled no such conversation as Plaintiff Granados had testified occurred between them.  Mr. Granados had testified that when he talked to Mr. Fennerty about his discrimination complaint, Mr. Fennerty said something to the effect of, "You have to stand up for your employees."  Mr. Fennerty testified that Mr. Granados had never spoken to him about any complaint regarding discrimination/retaliation. "He never spoke to me about these subjects at all.  I am very adamant about that."  As to a discussion of discrimination based on national origin, he said "Sir, I never heard those words." He later added, "I am very certain about these things."  He said such a conversation, during his mere six weeks as Interim H.R. Director, would have been "a significant event" that would have stood out in his memory.
      On cross by Plaintiff, asked whether he had once told Kim Stewart that he failed to land the permanent H.R. Directorship because he refused to do the things Sue Padilla told him to do, he replied, "I would doubt that very much.   I don't believe that's accurate."
      He also testified that while he needed one more year for his retirement to vest, and "would be foolish not to want that to be vested," his testimony was not in any way influenced by that desire.

Henry Cornelius testified concerning a period when he was working under the supervision of Robert Armijo, a Hispanic, but making more money.  He testified that he had "43 years' experience" and that Armijo was about 43 years old, and also that the disparity had been corrected in 2012.

Paul Dugie, Flood Commissioner, testified that his salary (which Plaintiff had noted was higher than Plaintiff's, although they were both directors and equivalent in status) came from a different (and state-administered) fund than other county employees.

Deborah Weir testified at great length, but during the morning she primarily authenticated various documents Defendant wished to introduce into evidence.  She also testified that the Sally Ramirez sexual-harassment case (in which the County settled a claim by the U.S. Department of Justice and paid a total of $150,000 to five plaintiffs who had worked as maintenance people in Facilities and Parks) had made management very sensitive about careful reporting of any possible discrimination complaint.

After lunch Misty Dawn Benavidez testified before Ms. Weir continued her testimony.
      Ms. Benavidez, an administrative assistant in Facilities and Parks, testified that there had been a time when she didn't get along with Sue Padilla but had talked to her about issues and "Now we're good."  She said she'd come to resent not only Ms. Padilla but her job.  She also testified that she hadn't been retliated against over her national origin.

Under direct examination by Mr. Carrillo, Ms. Benavidez testified:
Q. Are you testifying today to keep your job?"
A. It's crossed my mind.  However, I'm here to tell exactly what happened.
Q. Do you fear retaliation from anyone?
A. Yes.
Q. Have you gotten over that feeling by talking to Ms. Padilla?
A. It comes and goes."

On cross-examination, she was asked whether she'd felt harassed by Sue Padilla and experienced a hostile work environment.  She replied that she'd felt that if she spoke out, Ms. Padilla would retaliate.  She conceded that she'd still felt harassed in 2010.  She was asked whether she'd experienced a $4 pay cut, and replied "And then some.  It was very harsh."  Asked if this was the result of Sue Padilla, she replied in the affirmative.  Asked if she felt it was the result of truthful testimony in the Sally Ramirez case, she replied "I'm not sure why --- I just felt harassed."  However, Plaintiff showed her a June 2012 statement in which Ms. Benavidez had also been asked whether truthful testimony in that lawsuit had led to a demotion and pay cut and had replied, "Yes, ma'am."  
Q. You don't want another $4 pay cut after testifying, do you?"
A. "No, ma'am."
      On Redirect, Mr. Carrillo ask whether she feared another pay cut.  She replied, "Kind of, yes."

Ms. Weir then returned to the stand, and testified until late afternoon.  She testified to having been involved in drawing up the Notice of Intent to Terminate, and said that she'd recommended terminating Mr. Granados's employment "because of dishonesty and insubordination."  She added that directors must be credible and trustworthy, and said, "It's not a performance issue.  It's a character issue."
      She also suggested, with regard to the Jason Ireland incident, that although county manuals mandated reporting an incident of discrimination when the supervisor either observes it personally or is told of it by the complainant, there should also be a "knew or should have known" standard.  Mr. Granados was not told of any discrimination by Mr. Ireland, did not personally observe any, and (I believe) testified he hadn't even met the man.  However he was told something of an incident, or possibly two incidents, in which Mr. Ireland was unhappy because others on his work crew were speaking Spanish to or about him.  Under the "knew or should have known" standard, he would have been obligated to report that.  Ms. Weir testified that that standard is taught in training sessions.  Judge Arrieta jumped in to question her about where it appeared in the manuals and to clarify that Mr. Granados was not Mr. Ireland's direct supervisor.  As to the "knew or should have known" standard, he later stated, out of the jury's presence, "I don't know where that came from.  It's not the law as I see it."
      She also testified to "heightened sensitivity" to allegations of workplace violence.
      On cross-examination she was asked, and conceded, that a black woman working for the county had filed a discrimination complaint against her personally two month ago, and that it had included retaliation, although she said she wasn't sure if it also alleged a hostile work environment.  (No one indicated that the claim had been adjudicated yet.)

[Again, sorry to have written this so hurriedly.  I will likely have to miss most or all of what testimony there is tomorrow, but will hope to be there Wednesday for closing arguments.]