Sunday, December 6, 2015

Sheriff's Lawsuit is the Wrong Answer to Some Serious Questions

The “investigation” of Sheriff Enrique Vigil was a sad joke, rivaled for silliness only by Vigil's lawsuit against two county commissioners.

Sparked by some now-departed county employee, the investigation accused Vigil of saying bad things about the County's HR Department and “contributing to a toxic environment for county employees.”

Hilariously, the investigator “found some support for the allegation of a perception of a toxic environment, but could not limit the cause to the sheriff.” Unambiguous decisions by several juries have confirmed the existence of that “toxic environment,” as have sources for several of my columns. That atmosphere was toxic before Vigil's election, and many employees would point to HR as a major reason.

Vigil was charged with speaking “badly about the human resources department without providing a factual basis.” Well, he spoke plenty bad to me about HR around the same time, but provided factual support. I'm just not seeing the factual basis for the investigation, unless the ex-employee's complaint required the County to conduct it. Waste of money.

But Vigil's responsive lawsuit strikes me as nonsense. It tries to allege that the “investigation” not only was improper but could intimidate Vigil from speaking out.

“Could intimidate?” Most lawsuits allege actual damage. Your car hit mine, or ran over my donkey and killed it. Not, “I'm suing you because you drove too fast and could have hit my cat.”

But if Vigil claimed flat-out that he'd been intimidated, jurors would laugh. A sheriff in Pat Garrett country alleging he was intimidated by some investigator asking him if he said any bad words? Vigil has spoken out long and loud to everyone who'd listen, and didn't stop when someone started “investigating” him. His lawyer, Gene Chavez, told me Vigil was speaking in his constituents' interest and that “attempts to intimidate him from that will have the opposite affect.” So the lawsuit can't allege they've shut him up.

A little research showed that the Workman's Comp Board suspended Chavez in 2012 for a long list of violations including “false statements to a tribunal” and “failing to communicate with clients.” When he appealed, the NM Supreme Court affirmed. (Chavez said the experience taught him a lot and made him a better, more careful lawyer.)

An earlier Chavez case arose from a late-night incident at a McDonald's. A 19-year-old girl was in her car in the drive-thru lane. A McDonald's customer, not entirely sober, found the girl attractive and made this known to her, then continued pressing his attentions on her after she signified her lack of interest. Her car allegedly dragged him a little ways. 

Chavez filed suit for the rejected would-be lover against McDonald's for not having had a security guard on duty to prevent such incidents. The jury quickly decided against the Plaintiff. 

Is his current case more promising?

Vigil has Chavez answering local reporters' questions. Yo, Kiki: we elected you, not an Albuquerque lawyer. 

Vigil's lawsuit could prove costly for us taxpayers. Even if it's thrown out at an early stage, some lawyer gets well-paid to file the papers to make that happen.

Further, it contributes to a stupid and unproductive polarization – also costly.

It also distracts us from some real issues: are DASO deputies underpaid? What can and should we do about that? Is HR as bad as almost everyone claims? Did HR folks indeed get a string of consultant-blessed raises that deputies and road department crews didn't see? Was that justifiable? As regards DASO, is HR being unnecessarily uncooperative or providing a useful check against imprudent hires?

These serious issues should be examined fairly and openly – not litigated.

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 6 December.  As it turned out, Sun-News Editorial Page Editor Walt Rubel had already written his own Sunday column before receiving mine, and they were on the same subject.  Both, independently, criticizing both the "investigation" of Sheriff Vigil and the lawsuit on Sheriff Vigil's behalf against two County Commissioners.  Both Walt and I regretted the way such steps hinder communication between county offices, and urged the combatants to get back to a reasonable and fact-based discussion of the original issue: how to ensure the County finances local law enforcement adequately.  Both sides want that.  So do most citizens.   (I'd include a link to Walt's column, except that I couldn't find either his or mine on the Sun-News website this morning.)]
[The lawsuit alleges“retaliation and measures designed to chill and inhibit [Vigil] in that exercise [of First Amendment free-speech rights].”  It adds that: “46. The degree and type of actions taken by Defendants and by others at Defendants behest against Plaintiff Sheriff Vigil have been sufficient to chill a person of ordinary firmness in the continued exercise of his or her First Amendment rights.”

I asked the Sheriff's lawyer whether the Sheriff was alleging he'd been chilled in expressing his views.  Mr. Chavez stated to me that the Sheriff had been faced with a very difficult situation, with the County “whittling down the department's budget” over time, and had spoken up because it was duty to his constituents, and that the response he'd gotten was consistent with the “culture of bullying” County management had exhibited. Asked point-blank whether the pressure had in fact dissuaded Vigil, he said that Vigil “won't be dissuaded, because he has the good of his constituency in mind.  Attempts to intimidate him will have the opposite affect.”

I also asked him about the three-month suspension (October 2012 to January 2013) from practice before the Workman's Comp board. Initially he said, “I have no comment on that,” adding that it was “something that happened in 2012” and that he'd been practicing successfully, without such problems, ever since. Eventually he added that he had learned a lot, that the Supreme Court might have been not only upholding his suspension but sending a more general message to other lawyers, adding that “since that time I have not only double-checked but triple-checked every letter and every pleading to make sure that it is not only accurate but ethical. I've been down that road, and don't want to go there again. I think I'm more cautious and careful than some lawyers who haven't had that experience.”

The Supreme Court opinion denying his appeal states that the WCA alleged against Chavez "seventeen separate violations of the Workers' Compensation Act [including] that Chavez willfully refused to participate in the mediation process in three (3) different instances; that Chavez willfully disregarded the rights of the parties in eight (8) different instances; that Chavez advocated meritless claims in four (4) separate instances; and that Chavez behaved in a non-courteous and disrespectful manner in two (2) separate instances."  He was penalized $17,000 and suspended for three months.  However, he states that his record has been clean since then, and I believe him.

Chavez pretty much declined comment on the McDonald's case, except to say he remembered it vividly but wondered why I considered it relevant.  Fair question.  I had questions about this lawsuit, just from reading it.  A few minutes' research disclosed his 2012 problems with the Workman's Compensation Board (including alleged false statements to a tribunal) and news stories on the McDonald's case.  That raised the question of whether there was a pattern here.   Lawyers get paid to argue cases, which involves presenting the facts in the best light for their own clients.  There can be a fine line between an aggressive, imaginative argument and one that strays into falsity or unethical conduct.  Most lawyers never go through what Mr. Chavez did.

He's right that this additional information about Vigil's lawyer wouldn't be admissible in a trial of Vigil's case; but where that case is brought by an elected official against two other elected officials, he information seems of public interest.

His comments to me were reassuring.  That whatever may have been true earlier in his career, the Workman's Comp situation had taught him something, he said.  I take him at his word.  I'm in no way alleging that bringing this case is in any way unethical.  I just doubt it will ever end in a judgment for Vigil; and I certainly doubt whether upping the ante this way is going to help fix the County's problems rather than exacerbate them.

On the other hand, some of the discovery in the case could be interesting.]

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