Sunday, August 2, 2015

County Manager Criticizes Jury Verdict

Last week's column discussed the message sent the County Commission by the jury in Stewart v Dona Aña County. Rejecting testimony from HR Director Debra Weir and former county officials Sue Padilla and John Caldwell, the jury awarded $1.45 million to Stewart, whom Weir fired from her County position. Jurors were so appalled by the county officials' conduct that some hugged Stewart after the trial and thanked her for fighting. Stewart's lawyer stated in closing that Weir had to go.

County Manager Julia Brown's response has been somewhat graceless: she disagrees with the verdict, as she has a right to do, and has accused county-related witnesses whose testimony she didn't like of perjuring themselves. That's strong. Perjury is a crime. I tend to disagree with her. She's declined to answer questions concerning the specific evidentiary support for her contention.

I like Brown, and I'm mystified by the strength of her support for Weir, whose alleged misconduct caused or contributed to two large jury verdicts and some settlements of suits by former employees. (It's also strange that pay for folks working at HR has improved since 2011, while pay for road-workers, detention center employees, and deputy sheriffs generally hasn't.)

Meanwhile, there's an interesting battle brewing between County Sheriff Kiki Vigil, on the one hand, and Weir.

Vigil feels pretty strongly that Weir has hampered his efforts to hire deputies. He says he's short 45-48 deputies from what should be 164 (or 210, according to the most recent census).
He says several criminal justice graduates were eliminated by HR because they didn't have work experience and left that line blank on applications, and that other minor defects in applications had elicited rejections; that at a recent meeting judges asked the County Manager why hundreds of applications for jobs at the jail had been rejected; that more than 125 credible applicants for deputy sheriff positions have been turned away; and that it took a month to get job notices posted. (A judge confirmed the meeting, and had serious questions about the County Human Resources Department.)
“HR is broken,” the Sheriff told me recently. He added that HR has also sought detailed justifications from Vigil, an elected official, for personnel hires, though no ordinance or rule required such justifications.

Addressing employees regarding Stewart, Brown said witnesses had perjured themselves. Employees understood her to mean witnesses who had worked for the County or still did – and possibly a County Commissioner. She emphasized that these were her conclusions as a lawyer.

Brown, who generally speaks well, appeared to be trying to reassure employees they could come to her with discrimination/retaliation complaints. But is it reassuring to defend former high-up County officials (and Weir), who many employees (and two juries) say were guilty of discrimination/retaliation?

Brown explained that problematic employees sometimes try to avoid discipline by filing preemptive complaints of discrimination, which make it hard for managers to fire them. She spoke of such employees (Stewart?) trying to reap big pay-days by suing for discrimination/retaliation. When two juries find discrimination/retaliation, is it reassuring to label as perjurers people who testify to having seen or experienced retaliation? When others see Stewart as a straight-shooter, is it reassuring to use her case as a platform to discuss under-performing employees seeking big pay-days in court?

Clearly Brown has disappointed the County Commission. You don't spend hours discussing someone's evaluation, then call another closed meeting to continue the discussion if everything's peachy. Commissioners' veiled public comments suggest that there are many reasons for the disappointment, and that all Commissioners share it to some degree.

Presumably if they terminate her employment she won't turn to litigation.
[This column appeared in the Las Cruces Sun-News this morning, Sunday, 2 August, and will appear shortly on the KRWG-TV website.]
[The County Commission met Friday in closed session.  I'm pretty sure they discussed (1) possible post-trial settlement of the Stewart matter [see below] and (2) the sources of their dissatisfaction with the County Manager and how she might improve on her performance as they perceive it.  I'd be shocked if she were fired any time soon; but I'd be even more surprised if that possibility weren't in the minds of some Commissioners, perhaps all of them.]

[Several sources complained to me about Brown's briefings concerning the Stewart verdict.  Therefore I requested copies of the tapes of the two briefings, an watched them.  Brown certainly sounds as if she really does want to reassure employees and is truly committed to rooting out discrimination and retaliation by County officials.   Unfortunately, she didn't listen to her own talk, in her mind before giving it, from the employees' perspective.  People I've talked to consider Kim Stewart a straight-shooter, and many employees have complained to me about actual or alleged misconduct by Padilla, Caldwell, Weir, and their pals.  While some of the complaints seem exaggerated, many seem to check out.  Too many.  In that context, Ms. Brown could assume a large percentage of her audience sympathizes with the verdict and with the county-related witnesses who dared speak up about discrimination or retaliation they felt they'd experienced.   If so, adding the unnecessary complaints about bad employees making up frivolous lawsuits, or about perjury, or about calculating employees seeking a big pay-day in court is bound not to play too well, and to add to employees' uncertainty about where the County Manager stands on this stuff.  
By the way, in requesting the tapes I also asked for documents supporting her statements about perjury.  (Someone had told me Brown said during her briefing that she'd seen documents proving perjury.   I didn't hear that.  She did strongly imply it, by coupling the allegations of lying witnesses with a statement that she'd seen evidence that the jury didn't get to see; but she didn't state that any specific document proved any particular witness perjured himself or herself.)  In any case, the County objected to production of any documents, on the ground of attorney-client privilege.]

[Above, I mentioned possible settlement.  Lawyers in civil cases are always open to discussions of settlement.  It's not unusual that a case will settle after judgment.  The winning side expects an appellate court to uphold the victory, but knows there's no certainty.  The losing side hopes to overturn the judgment and walk away scot-free, or at least get the appellate courts to find a sufficiently serious problem to remand the case to the local court for a new trial.   As with settlement discussions before trial, the parties bargain/bluff/negotiate.  The difference is that the winning side -- Stewart here -- has a much stronger bargaining position.  How much stronger depends on both sides' appraisal of the loser's chances on appeal, of course.
Here the County stands to pay more than $1.9 million as things stand.  That's $154,840 in lost wages, $80,163 in lost benefits, $1 million in emotional distress damages, another $154,840 because under New Mexico's Whistleblower Protection Act the lost wages get doubled, plus $123,872 to $309,680 in interest on the doubled lost wages, depending on which of two statutes is applied.  In addition, Stewart's lawyers will seek more than $400,000 in attorney fees/costs, and would be likely to get that or something close to it.  
But Stewart doesn't have the money in hand, and wouldn't get it until after a lengthy appeal process, perhaps two years -- and, theoretically, perhaps even a second trial.  Depending on the legal issues, she might even have to factor in a very slight possibility of getting nothing.
What should the County do?  I won't say, but here are some of the factors the decision-makers should consider:
1. It's more likely than not that an appeal would fail, and that the judgment would stand.
2. If the County pursued a fruitless appeal, it would pay, in addition to the $1.9 million, (a) interest on that $1.9; (b) outside appellate attorneys, who don't come cheap; and (c) Stewart's equally expensive set of appellate attorneys, along with a some further hours worked by her trial attorneys helping the appellate specialists.  In addition, the matter would get dragged out (not desirable, when it's as divisive as Ms. Brown's "briefing" demonstrates it is) and there'd be additional headlines.  Thus the County could pay hundreds of thousands of additional dollars -- and more if there were a second trial and it came out similarly.
3. If the County appealed, it would pay highly-priced appellate lawyers, expend some energy, extend the bad publicity, and perhaps end up getting the judgment amount reduced or even an appellate order throwing the case out or, much more likely, remanding it for a new and equally costly trial.  I lack sufficient information to quote odds on some form of "partial success", but getting the case tossed out is extremely unlikely.]

[One further note with regard to Ms. Brown's suggestion that there existed documentary evidence, perhaps not allowed into evidence by the trial judge, that either showed people had perjured themselves or would have changed the result at trial.  (From what I saw, it's hard to imagine a document that would have changed the result with the jury.)  When I called Brett Duke, one of Stewart's attorneys, for comment, he said that in the evidence the County had tried to get in, there was "nothing that would even come close" to doing that.   "There was nothing they did not present that would fall into that category."  He said there were other discrimination/retaliation claims he and co-councsel Daniela Labinoti might have introduced at trial; that the County's lawyers had responded by planning to introduce the EEOC response to those; and that those witnesses were never called by Plaintiffs -- but that even in the documents rebutting those additional claims there was nothing that would have shown perjury. ]

[Finally, the conflict over DASO hiring is something I want to look into further.  It troubles me because I see some basically good elected officials in conflict with each other, and wish someone could mediate.  In concept, HR is supposed to hire almost all the DASO deputies and civilian employees.  That makes sense, since DASO doesn't have an HR Department, the County HR Department theoretically has important expertise in that area, and creating a whole new HR Department at DASO would be wasteful.  But the different departments obviously need to work together better.]

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