Sunday, September 20, 2015

Detention Center Investigation Heats Up -- Years Later than it Should Have?

Internal reports suggest that Detention Center Director Chris Barela may be guilty of misuse of public funds, and perhaps of crimes.

I don't pre-judge him. I do ask why it's taken so long for us to reach this point in the investigation, In late 2013, I wrote about these matters and discussed them with law enforcement. At least one Doña Ana County Commissioner also contacted the DA. The State Police began an investigation.

In two different subpoenae, the state police sought internal reports on Barela. Then-County Counsel John Caldwell objected that the reports were protected by attorney-client privilege. By early 2014 some judge should have decided whether or not the privilege protected the documents from the subpoenae – and perhaps whether invoking that privilege was proper when we are arguably the County Counsel's real client.

Lawyers and law professors have written extensively about the question of who is a city or county attorney's client. The mayor or manager? The council or commission? The public? Some combination, depending on circumstances? These can be complex questions. The public nature of the job raises considerations and requires choices that Exxon's in-house counsel doesn't confront.

To me and to many County employees, the County administration seemed dominated by a clique of high-level administrators who watched each other's backs and valued loyalty to the clique above loyalty to the public good. It was widely believed that people the “bosses” trusted could get away with anything, while people they didn't could get fired for trivial or trumped-up reasons. Trials, including Granados (2013) and Stewart (2015), explored the situation. Two different juries heard from both sides and reached very similar conclusions: they were appalled and angered by the portrait of County administration that emerged. (The Slevin jury had something to say about Mr. Barela's management of the detention center.)

Caldwell was central to the alleged clique. Many people said, “Caldwell really runs the County.” Employees and even Commissioners complained that he intimidated them or tried to.

County Manager Julia Brown and County Counsel Nelson Goodin arrived after the events the trials concerned. But they've continued to refuse to hand over certain documents on Barela, despite grand jury subpoenae. (They've also provided some documents, including a CD with a year's worth of purchase orders.) They apparently will provide former auditor Milton Duran's report on Barela by the subpoena deadline for that.

Whoever wins the attorney-client privilege conflict, I'm wondering why we're messing around with these issues at least two years after law enforcement started investigating. Duran's audit was in 2009! (I'm told there was also an even earlier report.) County Commissioners are appalled by the delay – and by the apparent lack of oversight of the Inmate Welfare Fund. Some of these issues were finally aired in a work session Tuesday.

Barela may have committed crimes. If he did, will the statute of limitations run out because the County was stiffing the State Police and/or D.A.'s Office and no one pushed back hard enough? The report I've seen certainly points toward questionable conduct.

The State Police got two subpoenae served seeking the internal reports, but no motion to enforce those was filed. The D.A. says he referred the matter to the State Police, understood there were some problems, indicated that lawyers in his office were available to deal with those problems, then didn't hear further for quite awhile. He and DASO are definitely pushing it now. (There's certainly some intra-governmental tension: some on the investigating side call the attorney-client claim nonsense and one labeled Brown a liar.) I suspect a motion will get filed this week.

Meanwhile the State Auditor reportedly will start investigating in a few months.
[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 20 September.]

[ I wrote about part of the problem in a December 2013 column and have mentioned it elsewhere.  Issues include alleged use of Aramark employees for non-county work while they were being paid by the County, possible misuse of the inmate welfare fund, and other complaints.]

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