Sunday, September 14, 2014

County Treasurer Davd Gutierrez Must Resign

Although I was tempted to write this week about the Las Cruces City Council's strange conduct Monday, it's also important to discuss the situation of our elected County Treasurer, David Gutierrez.

The facts seem simple: Gutierrez has admitted he solicited sex from a female employee while they were in a car traveling on county business. He admitted he'd said what he'd said and that he'd meant it. (That's to his credit – unless the lady was wearing a wire.)

There's also significant evidence that this was no one-time error in judgment. His alleged harassment of the same victim was reported in January to HR Director Deborah Weir and County Counsel John Caldwell. I didn't see the evidence, don't know what investigating they did, and can't judge them. One employee said, “she wouldn't have had to go through this if they'd done their jobs.” (On the other hand, maybe they did, somewhat slowly, and this was the result.)

Gutierrez must resign. He's an embarrassment to the County and himself, and to his party, community, and family.

We must force him to resign. While he may wish to keep receiving a handsome salary from us, remaining in his position could cost him heavily in fees fighting a possible recall effort and perhaps criminal charges.

A crime? I'm no criminal law specialist, but solicitation of sex-for-money is a crime in most states. Where he's already admitted it, the facts should be easy to prove, but a quick look at New Mexico statutes leaves me doubtful that those facts fall within the specific language of relevant statutes. (For example, “criminal solicitation” must be solicitation of a felony; and one sub-paragraph of the law on “promoting prostitution” looks as if it would apply only if she'd taken his suggestion.)

Democrats should get off our tails and actively encourage him to retire, even if the sitting governor gets to appoint his replacement. This transcends politics. (Although his conduct had nothing to do with his party affiliation, he happens to be a Democrat.)

I attended the annual Labor Day Breakfast about honoring labor, and heard all folks said there about honoring labor, as Democrats have traditionally done. Here, a man abused his power at the expense of workers he supervised.

I called to invite Mr. Gutierrez to tell me of any extenuating circumstances. I received a long email saying the public accounts were “not contextually thorough” and asked that people forgo quick judgments and extend “compassion and forgiveness.” He didn't offer to fill me in on the context, but said the incident wouldn't affect his job performance.

Gutierrez, as an elected county official, is automatically on the Democratic Central Committee. I believe County Democrats should formally consider (1) terminating his Central Committee membership and (2) censuring him and urging him to resign. Democratic County Chairwoman Christy French has convened the Judicial Council to discuss these issues soon. Gutierrez will have the opportunity to explain his side of things.

New Mexico's Constitution directs that 200 valid signatures on a petition can get a grand jury called to look into an alleged crime or official misconduct. (So can a judge, if s/he deems it necessary.) If no officials plan to act, perhaps citizens should. (Recall is cumbersome, and costly to the public.) Somewhere along the way Mr. Gutierrez will likely realize that the longer he fights, the less he retains citizens' respect or affection.

He needs to resign. I suspect he also needs to seek treatment from a qualified professional sooner rather than later, and (unless he plans to leave the County) begin the painstaking task of rebuilding some hint of community trust and respect for him.

The above column appeared in the Las Cruces Sun-News today, Sunday, 14 September, 2014

The column mentions recall.
Under New Mexico law, to recall him takes signatures equal to 1/3 the number of votes cast in November 2012, when he was re-elected. Unfortunately, that was a Presidential Election year, with a larger turnout than most years.  The people could surely do so, but at significant effort, and the resulting special election could prove costly.  Thus it should be undertaken only as a last resort.

County Democratic Party:
On 10 September, Ms. French wrote to the Judicial Council, the appropriate body to hear the case, petitioning it to meet soon concerning Mr. Gutierrez.  In part, she wrote:
Understand that I do not bring this petition lightly, but under the circumstances, I feel it is the right thing to do and it is necessary for the Democratic Party of Dona Ana County to show the voting public that we do not condone this type of behavior.  In addition to removing Mr. Gutierrez as an officer from the County Central Committee, I am asking the Judicial Council to formally censure Mr. Gutierrez and ask that he resign his office.

Did County Officials Hear about the Problem Earlier?
I've been told "Yes, definitely", first-hand, by someone who says it was discussed at a meeting within the County's HR Department -- and that HR Director Deb Weir voiced an intention to discuss the matter with County Attorney John Caldwell.
The County says "No, definitely."  It took me a while to get a comment, but the comment (after deadline for the column) was a definite "No", that no one reported to HR back in January that there was a problem with  Mr. Gutierrez's conduct toward women, or toward this particular woman.  
A couple of people had criticized Weir and Caldwell for inaction.  I wondered if maybe they'd taken some action, or at least investigated, but apparently not.

Seeking Comment from Mr. Gutierrez:
The column mentions my invitation to Mr. Gutierrez to comment.  I phoned and left him a message.  He responded by email, from which the column quotes.  It seems fair and appropriate to publish the full email, though it wouldn't have fit in the column.   Below are the email I received and my reply.  So far, I've heard nothing further.
(Of course, Mr. Gutierrez will also be invited to tell his story to the county Democratic Party -- and presumably could do so to the Las Cruces Sun-News or to KRWG-TV.)

David Gutierrez <>

Sep 8 (2 days ago)

to me
Mr. Goodman, I did receive your voicemail message, and I appreciate that you are reaching out to me for my side of the story. As you can well imagine this is a difficult and painful time for me and my family. After 18 years of dedicated public service in various roles for both Mesilla and Dona Ana County, my reputation has suddenly been pinned on a conversation that lasted less than two minutes. The picture painted by the official investigative report and discussed publicly on Aug. 29 is not contextually thorough, and I believe it unfairly portrays me, my words and the aftermath of the original conversation. What happened is regrettable, but it does not affect my ability to act in the best interests of either my office, my fine staff or the taxpaying residents of Dona Ana County. I am hopeful that all those who would judge me based on that two minute window of time would show some compassion and forgiveness during this difficult time, realizing that none of us is perfect and those of us who live in the fish bowl of public service are scrutinized in ways most people cannot imagine. There is always more than meets the eye, which is very much true in this case. Thank you again for the opportunity to state my side of the issue.

David Gutierrez
Dona Ana County Treasurer
845 N. Motel Blvd.
Las Cruces, NM 88007

Peter Goodman <>

Sep 9 (1 day ago)

to David
Mr. Gutierrez -
Thanks for your reply, but it left me unclear: do you want to talk about your side of this, or extenuating circumstances, or leave the record where it lies?   If what we've heard may be inaccurate, I'd like to hear your view on that before I write a column or otherwise act.
I do wish to hear your side; but your email doesn't tell me your side, but just says you have one, which I'd figured was likely.  I do recognize that you've provided valuable service to the community; but public / political positions are what they are, and there are good reasons folks may not extend the kind of forgiveness/patience/compassion and avoidance of judgment that they/we would do with a private person acting as an individual.
Certainly my initial view of this, to be frank, is that you should resign, but that you deserve every kind of consideration, compassion, and assistance as an individual and one who's served the community for some time.   That's my initial view, based on what I know now..  I'm open to argument, or to learning new facts.
Please feel free to email or call me -- 521-0424 or (510) 282-6690.

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