Sunday, April 30, 2017

Julia Brown's Firing Was Foreseeable, but Abrupt

We're seeing officials jump into high positions and take immediate and drastic actions based not on observations made in their new posts, but on ego or ideology, or what they've heard (or covertly promised) before taking office.

In Washington, that could destroy the fabric of our civil society – or worse. 

In our county, we'll survive the sacking of County Manager Julia Brown. 

I've criticized Brown. I've praised her. So has at least one commissioner who voted to fire her. 

Last fall, I criticized the old commission for extending her contract by three years. The next commission might fire her, as Sheriff Vigil was urging. One year seemed more prudent. But the extension didn't put us on the hook for the whole three years. There's a six-month severance package. Brown was an at-will employee. Terminable for no reason. So long as her civil rights weren't violated, which a lawsuit may explore, we'd owe six months' salary not years'. The commission also sought to raise her salary over three years to be comparable to salaries of similar county managers in New Mexico. 

A critic of that decision could argue that tripling her severance package from two months to six, while perhaps fair, was “very disrespectful to the incoming commissioners – and the voters.”
I've criticized Vigil for threatening to get rid of Brown. But I'm not sure her firing was entirely his doing. I'd heard some complaints about Brown unrelated to Vigil. So had commissioners. Also, Vigil has repeatedly urged the commission to drop its appeal of a court decision upholding a union arbitration. (I think I agree with him. Deputies deserve raises. Soon!) The case has been on the agenda for several closed sessions. If Vigil completely controlled three commissioners, maybe the commission would have done his bidding on that by now.

Firing Brown was abrupt and ill-considered, but no great surprise. The three new commissioners almost fired Brown in February. Apparently the new commissioners had decided on that before taking office, but Vasquez changed his mind. Therefore the commission told Brown it would evaluate her. Brown responded by proposing some items she thought reasonable to include in a performance review. The commission never even responded – except by firing her. (Only Billy Garrett dissented Tuesday.) 

It's wrong to fire someone without an evaluation, barring some very serious misconduct. Ms. Brown committed none. Running our county is complex, particularly coming in, as she did, when some extremely bad management had created distrust and torpedoed employee morale. Commissioners say Brown was stellar at much of what she did, but could have improved on some points. That calls for evaluation and clear direction – not an abrupt firing.

Several – including a couple of courageous DASO employees – spoke up for Ms. Brown Tuesday. No employee criticized her. A DASO employee called the firing “political corruption at its finest,” and Deputy County Clerk Lynn Ellins called it “insanity.” Sadly, the three new commissioners made no explanation, then fled like frightened rabbits from reporters. Had they nothing to say in their defense? At least Ben Rawson faced questions. And (despite his vote) thanked Ms. Brown for all she's done.
We'll be paying for this in many ways, including a probable retaliation claim. We may not get such a skilled replacement.

Afterward, Brown lunched at Mariachi's. Returning, she was startled by an atrium full of county employees greeting her by cheering loudly and clapping, as she received a big bouquet flowers. (See Patrick Hayes's video.) The sight of employees publicly cheering the person their bosses had just fired speaks eloquently: she will be missed.

[The column above appeared in the Las Cruces Sun-News this morning, 30 April 2017, as well as on the newspaper's website the newspaper's website and KRWG's website, and a spoken version will air Wednesday on KRWG Radio.]

[I note in the column that I've both praised and criticized Ms. Brown.  Less than two years ago, I tended at one time to think she should either be terminated or be given an evaluation including some strong comments on certain points.  However, I have come to understand why commissioners value her professionalismBut I also know that some folks see Brown's ouster as the first shot in a civil war within county management.]

[People often ask me whether Ms. Brown is likely to win if she files suit.  I answer that I'm not her lawyer, and that there's a lot I don't know.  Speculating as an outsider?  As an at-will employee, she'd have little basis for a simple employment claim, unless they violated a required step in reaching their decision.  With other county employees, I'm pretty sure such a summary action, without first evaluating the employee and giving her an opportunity to improve, would violate the personnel manual, which is taken by courts as a term of employment.  (I should note that Ms. Brown was evaluated twice prior to the seating of the three new commissioners; and that I'm hearing from various sources that although she was orally advised of the commissioners' views, she was given no written evaluation.)  You follow procedure.  I doubt there's any such thing in her contract.  She can be fired at will, just as Trump can fire Flynn.  Or the Sheriff can fire his undersheriff.  And that's true for a reason: it's a political office, and the elected officials can choose whom they want to manage the city or the Defense Department.   The wisdom of a particular firing is a political issue, assuming all required procedural steps were taken and no contractual promise broken.

However, just because you can fire someone for no reason doesn't mean you can fire someone for an illegal reason.

One example is the Whistleblower Act.  I've worked on a few such cases.  Even if someone is an at-will, or even a temporary employee hired to teach or clean for a year, with no legal right to being re-hired the next year, you can't fire (or decline to re-hire) that employee because he reported to the police or your board or the newspapers that you'd embezzled $100,000 or ordered employees to pour mercury in the river.   (Ironically, a suit on those grounds has been filed against the County by some Sheriff's Department employees Ms. Brown disciplined or terminated.  They have counsel who are very experienced at pursuing employment claims against the County.)  

Similarly, even if you could fire someone for no reason, you can't fire someone because s/he's of a certain ethnicity or in retaliation for making claims on her own or others' behalf of ethnic or sexual discrimination.  

But to appraise anyone's possible claim, a lawyer needs to ask a lot of probing questions and then often do some legal research.  I won't speculate just now on whether Ms. Brown will sue or how that lawsuit might go. She's a lawyer herself, and I'm sure she's been consulting some lawyer who specializes in employment claims -- other than Daniela and Bret, who will be saying bad things about her as part of their work for other clients.   If she files a complaint, I'll look at that before opining.  For now, I'll merely hope that the commissioners ultimately select an able and experienced county manager.  And that Ms. Brown enjoys her retirement. ]  

Sunday, April 23, 2017

VOTE for change on the Dona Ana Soil & Water Conservation District Board!

VOTE TUESDAY, MAY 2 in the Doña Ana Soil & Water Conservation District election. 
SWCDs were founded in 1935 as a response to the dust bowl. On April 2, 1935, scientist Hugh Bennett was asking the Senate Public Lands Committee for more money, and getting some opposition – until a huge dust storm swept over the Capitol. 
State and federal laws give SWCDs the power to do real good. Noting that “the land, waters, and other natural resources are the basic physical assets of New Mexico, and their preservation and development are necessary to protect and promote the health and general welfare of the people of this state,” our Legislature charged SWCDs with fighting soil erosion and flood damage, furthering water conservation, promoting use of water for fish and wildlife (as well as human) needs, and conserving and developing the state's natural resources.

Unfortunately, the DASWCD board opposes true conservation measures. They haphazardly try to protect ranchers from any inconvenience, but do little toward the other goals. They opposed the new monument. And wolf reintroduction. One year they spent a portion of their small annual budget to hire someone to oppose a BLM planning document – although they hadn't identified any specific objection to it: as longtime DASWCD Chair Joe Delk said, “There's no telling what's hidden in the nooks and crannies of the words therein.” They even passed a resolution on Agenda 21, a well-meaning and idealistic wish-list put out by a U.N. Agency, favoring sustainability and better economic opportunity for all. It's nothing mandatory, but gets used to create fears that local governments will swear fealty to UNESCO or something. 
The DASWCD also uses an unconstitutionally unequal voting scheme to keep the board from fairly representing us.

By contrast, in Belen we wanted to watch birds. Before dawn, we snuck into a great wildlife refuge on the outskirts of town. Later we realized Valencia County's SWCD was responsible for not only the refuge but a visitor center and education programs! There too, the chairman is an old rancher; but he understads the importance of conservation, to everyone. Our SWCD could have that kind of meaningful impact too.

The May 2 election involves two board seats. 
Zone 4 (City of Las Cruces) contains most of the district's population. Environmentalist Craig Fenske opposes land-developer Kent Thurston, whom the current board would like to see elected. As a county extension agent in Washington, Fenske worked closely with SWCDs on education. He says he first learned of SWCDs “as a child from my grandfather, an Iowa farmer and an early adopter of conservation practices.” Thurston has a record of pushing the County's Extra-Territorial Zoning Authority to allow higher-density residences on his land, not one of pushing conservation.

Zone 3 includes Talavera, Las Alturas, and points South (East of Highway 478). Kevin Bixby is challenging Chairman Delk. Bixby, founder and CEO of Southwest Environmental Center, has a long and thoughtful history of caring about our environment and acting to protect it. Delk has written that that “environmental cartels” seek “to elevate a secular spiritualism while suppressing and diminishing the presence and importance of Christian men and women.” He envisions SWCDs as “a bastion of conservative leaders” to oppose those “environmental cartels.” 
Delk says he's “a child of an all-powerful God,” but ignores the Biblical idea that in giving us this marvelous world God directed us to be faithful stewards of it.

Bixby advocates “simple, cost-effective things like rainwater harvesting and tree-planting” to help people and the environment. 
Please take time to vote for a more balanced and conservationist board that truly represents us.

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 23 April 2017, as well as on the newspaper's website [] and on KRWG's website; and recorded (and modified) versions of these columns air on KRWG Radio on Wednesdays at 7:45 a.m. and 4:45 p.m.]


Anthony Municipal Complex, 820 Highway 478
Chaparral: Betty McKnight Community Center, 190 S. County Line
Las Cruces: Dona Ana County Government Center, 845 N. Motel Blvd.
Las Cruces: Good Samaritan Village Social Center, 3011 Buena Vida Circle
Las Cruces: Sage Cafe Community Center, 6121 Reynolds Drive
Mesquite: Vado/Del Cerro Community Center,  180 La Fe Ave.

OPEN 7 a.m. to 7 p.m.

Note: Only Zones 3 and Zone 4 board-members are up for election this year: 

ZONE 3 is the area south of Highway 70- between Highway 478 (west) and the county line (east)
ZONE 4 is the City of Las Cruces.

There's no question about the responsibilities the DASWCD is intended to take on:

New Mexico Statute 73-20-26, "Legislative determination; purpose of act.", provides:

A.   Considered and resolved by legislative determination, it is declared that:   

(1)   the land, waters and other natural resources are the basic physical assets of New Mexico, and their preservation and development are necessary to protect and promote the health and general welfare of the people of the state;   

(2)   the improper use of land and related natural resources, soil erosion and water loss result in economic waste in New Mexico through the deterioration of the state's natural resources; and   

(3)   appropriate corrective and conservation practices and programs must be encouraged and executed in New Mexico to conserve and develop beneficially the soil, water and other natural resources of the state.   

B.   It is declared to be the policy of the legislature and the purpose of the Soil and Water Conservation District Act [73-20-25 through 73-20-48 NMSA 1978] to:   

(1)   control and prevent soil erosion;   

(2)   prevent floodwater and sediment damage;   

(3)   further the conservation, development, beneficial application and proper disposal of water;   

(4)   promote the use of impounded water for recreation, propagation of fish and wildlife, irrigation and for urban and industrial needs; and   

(5)   by the application of these measures, conserve and develop the natural resources of the state, provide for flood control, preserve wildlife, protect the tax base and promote the health, safety and general welfare of the people of New Mexico.   
Nowhere does the foregoing limit the group's charge to "supporting rancher's, whether or not the ranchers' activities promote conservation."  Nowhere did the Legislature invite the group to oppose most or all legitimate conservation proposals.

[Below, I'm reprinting Mr. Fenske's emailed announcement of his candidacy.  It's gratifying that he has actual experience working with soil and water conservation districts to help them fulfill their real functions:
[Fenske Campaign Announcement:]
Dear Friends and Neighbors,
I am delighted to announce I am a candidate for the Dona Ana Soil and Water Conservation District.  After the last election I committed to get involved and take action at the grassroots.  “Think globally, act locally” runs through my head and I decided this is a great way for me to “act locally”. 
I first learned about Conservation Districts as a child from my grandfather, an Iowa farmer and an early adopter of conservation practices.  As a county extension agent in Washington State I partnered with the local conservation district on education projects.  As the coordinator for Keep Las Cruces Beautiful for the City of Las Cruces I started the Tree Steward program, lead recycling education programs in Las Cruces schools and partnered with the community to organize cleanups and neighborhood beautification projects.  I am eager to apply my experience with our local conservation district to improve our quality of life in the Mesilla Valley.
In other parts of the country and even New Mexico, conservation districts are doing great things: 
  • La Ciudad SWCD in Bernalillo County, for example, has programs to promote backyard tree planting, stream restoration, master naturalist training, and rainwater harvesting.
  • In the Valencia SWCD the Whitfield Wildlife Conservation Area has been put into a permanent conservation easement with the USDA Natural Resources Conservation Services Wetlands Reserve Program for restoration and protection of the area. The VSWCD views the area as an excellent opportunity for conservation education for Valencia youth as well as drawing on ecotourism to bring an added economy to Valencia County.
But not here. Our conservation district has taken a different approach, choosing to squander its limited resources passing meaningless resolutions against things like the Organ Mountains-Desert Peaks National Monument, wilderness and Mexican wolves, while doing absolutely nothing to help people in our community care for our land and water. 

The election is Tuesday, May 2.  I've attached a flyer with details about where and when to vote, and a map showing the district boundaries.

I am asking for your support: 
  • If you live anywhere within the Las Cruces city limits (Zone 4), you can vote for me.
  • If you live in Zone 3 which includes Talavera, Las Alturas, south Main Street, and Chaparral, you can vote for Kevin Bixby, a great conservation candidate. 
  • Please tell your friends! Alert your networks! Spread the word on social media! Email the attached flyer! 
  • Check out our website:

I mention Joe Delk in the column. An earlier column discusses his apparent violation of the Open Meetings Act in his haste to oppose a government agency, and provides a link to  his comments about "environmental cartels, which can be found  here .
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Sunday, April 16, 2017

Rio Grande Theatre Is a Valuable Community Resource

I'm glad I'm not a city councillor deciding who should run the Rio Grande Theatre.

Instinct tells me that it should not be Philip San Filippo; so do others' observations; but I'd want to ask some hard questions of Kathleen Albers, too.

San Filippo deserves a separate column. He's about to take on an important economic development job for which his past experience doesn't seem to qualify him. He's an experienced salesman, a tourist-development guy, but he's no economist and may not have done economic development. He recently said we'll be real busy because of the Spaceport. I hope he's right. I hereby offer to bet him $100 he ain't. (Two years ago, calling Spaceport America “the Kitty Hawk of the Future,” he predicted we'd see the next space flight here within two years. I hope his proposals for what he'd do with the RGT have more solid foundations.)

I don't think this battle started as a power grab by Mr. San Filippo. I believe that when City Manager Stuard Ed first met with the Doña Ana Arts Council, DAAC complained a little too much about its situation with the theatre. Ed walked away thinking DAAC wanted out. Then Ed invited San Filippo to submit a plan. DAAC folks say Ed heard what he wanted to hear. Maybe. I think DAAC (whose supporters say it adds significant funds to the $120,000 it gets from the city each year to run the theatre) hoped to improve its deal with the city. But I wasn't in the room.

Also, some third-parties unrelated to the city administration have significant complaints about DAAC. Folks I know and trust but can't identify here.

Economic development isn't the main purpose of a community theatre. Being a widely-used community resource that helps us be the best we can be is. Like the plaza, the theatre need not make a profit; but neither should we waste our money.

History should matter in this decision. DAAC saved the RGT, which might have disappeared like St. Genevieve's Church. DAAC did a lot of fund-raising. The community stepped up. Former DAAC Board Chair Keith Whelpley speaks of the beautiful community spirit he and others experienced. DAAC spent a lot more energy, imagination, and money than the City did making sure there's a Rio Grande Theatre to argue about today.

But the City has every right to ask DAAC to live up to a contract. If both parties agree on something, both should respect that agreement. I don't know how businesslike things were before. It wouldn't be fair suddenly to demand letter-perfect performance of a contract where that hasn't been demanded before. Unless there's been fraud, the City Council probably should extend DAAC's contract for a year, but instruct Ed to negotiate fairly with DAAC and specify expectations. “Fairly” means with respect for both taxpayers' economic interest and DAAC's important contribution to this community resource. (Let's also note the probability that imminent road construction downtown will sabotage RGT attendance.) Further, if San Filippo or anyone else has good ideas, share 'em! We all want the best for our community – and especially for the arts.

The City should also, without undermining DAAC, create a way for critics of RGT management to voice their concerns without fear of negative consequences. I'd also suggest a diverse contingency-planning committee to consider all aspects of the theatre's future. I'm not saying DAAC will fail. Nor that San Filippo definitely couldn't step in successfully in 2018 or 2019. I'm saying that if DAAC doesn't pan out and the CVB alternative doesn't look promising, we can't just punt.
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 16 April 2017, as well as on the newspaper's website and KRWG's website KRWG's website; and KRWG Radio will air a spoken (and slightly condensed) version twice on Wednesday.]

[A friend I spoke with about this stuff said, "I'm glad you're writing a column about this."  I quickly replied, "I'm not."  Too many people I like and trust are on different sides of this fight, with strong views.  Unfortunately I don't always mince words, either.  So I'll probably be losing a bunch of friends over this one.  City officials frustrated by dealings with DAAC, and other critics of how the arts group is run, will feel disrespected; folks in the DAAC camp will be annoyed that I haven't hewed to anyone's line, but just tried to articulate my imperfect view of the facts.  That view starts with certainty that the highest and best use of the theater is as a community institution, not as a part of some economic-development scheme -- although the theater should be able to assist in that efforts as well.  At the same time, the City has the right and obligation to try to make sure the Theater is well run.]

[NOTE [17April2017]: It was saddening to attend the City Council meeting mentioned in the column.  A few hours before the meeting, DAAC sent the Council a letter withdrawing from consideration for a contract extension.  Several councillors were quite troubled, while others were not.  It was not clear whether, if the council had urged DAAC to reconsider and continue its management of the Rio Grande Theatre, perhaps with a slightly larger financial contribution from the City, DAAC would have considered that.  It was not clear to me.   It was not clear to Mayor Ken Miyagashima, who expressed disappointment at this turn of events and asked DAAC's board chair the question I was wondering about.  She said she was just one board-member and didn't know.  (Later, a source pointed out that given the way certain city employees and conducted themselves toward DAAC, it would have been insane to go forward working with city officials.  Some from the arts community booed Mr. San Filippo as if he were Kevin Durant returning to Oklahoma City as a Golden State Warrior.)  
So a somewhat disappointed city council, including some who stated they'd have voted to extend the DAAC contract another year but seek the kind of clear communications advocated above, voted to accept DAAC's withdrawal.   CVB will run the RGT, at least for a year.  Councillors may well consider the kind of planning committee (or citizens' board) suggested above, which could provide some oversight as well as doing the sort of contingency-planning I recommended.  It was clear that some of them, while not inclined to beg DAAC to reconsider, were uneasy about CVB as the new manager, at least without clear instruction from the City Council -- for which purpose there likely will be a work-session at an early date.
Anyway, it seemed sad.  To me and others, including several councillors, some of whom spoke of necessary "healing."  We all owe DAAC our thanks.  We may miss DAAC.  Above all I was left with the certainty that all parties, including this columnist, could have done better in this situation.]

Sunday, April 9, 2017

D.A. Writes the Cops a Blistering Letter

Why can't local law-enforcement agencies work more closely together?

The Sun-News recently reported that Detective Irma Palos has sued the City. She's the case agent who investigated Tai Chan, accused of murdering a fellow Santa Fe sheriff's deputy. (His first trial ended in a hung jury last May.) Palos alleges male police retaliated against her for helping bring to justice Detective Michael Garcia, the sex-crimes investigator jailed for sex crimes, and for telling a lawyer about sexual banter male cops allegedly subjected women to. The alleged retaliation includes denying her resources necessary to investigate the murder case.

Those events raise many questions, but one is: why didn't someone tell District Attorney Mark D'Antonio, who's prosecuting Chan, that his star witness was saying her investigation was compromised?

Tuesday D'Antonio wrote LCPD Chief Jaime Montoya that neither LCPD nor Palos “informed the D.A.'s office of the detective's legal action.” He called that “deplorable and devoid of any rational thinking.” He added that Palos's lawsuit suggests “possible police corruption, obstruction of justice, and the mishandling of a major case involving the alleged cold-blooded assassination of a police officer.” D'Antonio says the Sun-News story March 28 was his first notice of Palos's allegations. (A confidential source says the D.A.'s Office learned of the problem earlier in March.)

If you're Palos, another detective working on the Chan case, or the police chief or city attorney, how in the *#*# does it not occur to you that, gee, maybe you might want to tell the D.A. there's this ugly stuff out there the defense lawyers might try to use against him? 

I asked. No answer. Montoya said, “I'm not going to get into that,” he said, adding that he'd just received the DA's letter and would be discussing it with the DA and with his detectives. 

You might ask if this was a confidential personnel matter; but the October filing made it public. You might point out that Palos's allegations are merely allegations. Why bother the D.A.? But these allegations, whether valid or not, could seriously harm the case. They undermine police credibility. Used well in cross-examination, they hurt Palos as a witness. “Didn't you testify under oath that you did a great investigation?” “Haven't you now alleged under oath that your investigation was compromised?” “How can the jury trust you?” Indeed, Chan's lawyers are asking the court to let them use the material.

I also asked Montoya about the alleged retaliation. He said little, citing the lawsuit; but the City has denied Palos's charges and is fighting the lawsuit. Montoya said, “Cultural issues and sexism are something we address every day, not only in our training but in managing and mentoring employees. A hostile work environment is completely contradictory to our values as a department.” Garcia's conduct occurred before Montoya became chief. 

We shouldn't prejudge Palos's lawsuit. We should hear the evidence. D'Antonio notes in his letter that without further information he neither credits nor discredits Palos's allegations. 

But I see no reasonable explanation for not informing the prosecutor. Among other problems, if the alleged obstruction kept exculpatory information (even minor facts) from being given to defense attorneys, that alone could jeopardize the case. 

Further, obstruction of justice is a crime! Whether I hide stolen silverware from the cops or the police are screwing around because they don't like a detective, it's potentially criminal conduct. Who's investigating that? If no one has, the D.A. will. But October 2014, or even October 2016, would have been a better time to investigate possible malfeasance than April 2016. Chan's retrial is set for May 8.

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 9 April 2016, as well as on the newspaper's website and KRWG's website; and KRWG Radio will run a recorded and shortened version twice on Wednesday.]

[One thing I lacked space to add was that this occurred in a context of inadequate communications and cooperation between or among law-enforcement agencies here.  For one thing, last I heard the Doña Ana Sheriff's Office still hadn't agreed to cross-commissioning, although LCPD and the State Police have asked for it and I think the D.A. favors it.  In addition, prosecutors would like to be informed more quickly and fully when a murder occurs, and even visit the scene.  Further, some DASO deputies and LCPD detectives reportedly feel their job is over when they've delivered the case to the DA -- and aren't easily found for follow-up investigation and interviews. 

One issue is the same one we all saw fairly often on "Law and Order": cops and lawyers are seeking the same result, but with different roles and different rules.  Both want the bad guys put away; and, at least theoretically, both want the not guilty not jailed; but whereas cops have to locate and arrest the subject, the lawyers have to complete a very complex obstacle course called a trial.  Trials have complicated and sometimes arcane rules of evidence, the prejudices and sympathies of judges and jurors, the unpredictability of jurors, and detailed procedural rules designed to keep the playing field somewhat fair.
The cop, at one extreme, gets the bad guy in jail and goes out for a drink, satisfied.  Law says s/he's supposed to help with the prosecution, but some cops think that's the lawyers' job.  What the hell did they go to law school for, and there are too many additional bad guys out there to waste time talking to additional witnesses or going back to verify some loony idea an assistant prosecutor dreams up.  And some of them loathe and evade the laws about searches, confessions, and what-not.  Plenty of popular movies establish that most of us would be tempted to do the same as the cops.
But the lawyer knows .  S/he has very clever and well-educated people called defense lawyers waiting to pounce on any error, to thwart the prosecution; and as we all know, that prosecution has to convince a dozen strangers it's righteous, beyond a shadow of a doubt.]

D'Antonio's letter (sent Tuesday) was blistering.  After advocating "unity and mutual respect between law enforcement entities" as essential elements in protecting the public," he noted a "strained relationship between our two offices" which "leads to unproductive and ineffective law enforcement. This prevailing attitude has culminated in the failure of LCPD to notify my office and I of crucial information in the prosecution involving a murdered police officer."
He added:
The current police culture of shifting the blame for poorly-investigated cases, compounded by disgruntled police officers, has led to inadequate investigation and sloppy police work.  It must come to an end.
. . . 
The recent situation involving the Tai Chan Murder case, in which you intentionally refused to share critical information in a pending and active prosecution with my office, is outrageous and an affront to justice in our community.  We have attempted to work closely with  the case agent, Detective Palos, and have done everything in our power to present the best case possible.  The fact that neither Detective Palos, nor any representative from LCPD, informed the DA's office of the detective's legal action, filed in October 2015, is deplorable and devoid of any rational thinking.  The facts of the suit suggest possible police corruption, obstruction of justice, and the mishandling of a major case involving the alleged cold-blooded assassination of a police officer.  I will not credit or discredit Detective Palos' allegations without more information.  I need to immediately review the results of a thorough internal investigation.  Although I was never informed that such an investigation took place, I must assume that such an inquiry was conducted since the allegations were filed in October of last year.  What makes matters worse is, as of today's date, April 4, 2016 m at 11:00 a.m., despite the news coverage, I have not been notified of the incident by your or by any official.  Please explain that to the public.
No matter what the evidence reveals, the facts are important to the prosecution of the Chan case. . . . Your department's failure to disclose any information in this matter in a timely manner has made our prosecution more difficult.  In addition, you have provided defense counsel alternative methods to attack the State's evidence.
. . . [T]he defense team representing Mr. Chan has filed newly-conceived motions attacking the evidence and testimony in the upcoming trial.  Since, to date, you have yet to notify me of any investigation regarding the allegation of misconduct and the denial of investigative resources, I am unequipped to properly and intelligently respond to any defense motions filed based on Detective Palos' allegations.  If I do not receive a full and complete debriefing and report on the investigation and its results, I will conduct my own investigation into the matter.  

Friday, well after I sent in the above column to the Sun-News, City Manager Stuart Ed responded, acknowledging receipt of the letter to Montoya and adding: 

In my capacity as Las Cruces City Manager, I have direct oversight of the Chief of Police and Las Cruces Police Department. This is the first I have heard of these issues. While I am grateful you have made me aware of them, I confess it is disappointing such issues were not vetted and resolved at the lowest levels possible with my involvement through open discussion and the courtesy of a frank and honest face-to-face dialogue sooner.
You have my assurance I will do everything in my power to bridge the apparent communication gap between your office and the Police Department. To that end, I propose facilitating process improvement meetings between you and Police Chief Montoya to insure all lines of communication, professional courtesy, and service to the community remain steadfast and responsive and that our Police Department
works in close partnership with your office at all times.
I believe we have a well-led Police Department and have complete faith and confidence in Chief Montoya and his leadership. I know both he and I are eager to vet and correct any operational issues between our two organizations. I am confident we can successfully address any and all concerns and come to a resolution that insures our community continues receiving responsive case investigation and
prosecution services from both the Police Department and the District Attorney's Office. Let us begin with open and honest dialogue at the top between you, myself,and the Chief of Police. You have my assurance I will shepherd this important partnership in my capacity as City Manager.

Ed's letter is calm and constructive, neither apologizing profusely nor fanning the flames by undue defensiveness; but it doesn't answer D'Antonio's questions.  It does say the City will reach out to the D.A.; and obviously we should all, with the possible exception of Chan's defense counsel, hope that happens soon and leads to a full and frank exchange of information about Palos's allegations -- as well as improved cooperation on future cases.

Monday, April 3, 2017

In the Garden - 2April 2017

Wandering around collecting a few flower images, I was quite taken with this composition nature had given me.  D had planted desert marigolds beside the rock rose in a spot where both seem quite content, and the wind and light had played with them a bit.  At any rate, it's the sort of goofy composition that'll sometimes capture my attention for longer than it should.  I can't resist experimenting with which treatment(s) it likes best.
Sometimes there's a single treatment that's obviously right for an image.  Others -- including this one -- seem to me to work quite well in a variety of media.

For example, this works as a pencil sketch . . .

. . . or as a painting . . .
. . . or even this slightly electric version . . .

. . . or as modified here.

Who else greeted me this morning?

The gazania, peering at the morning sun from its tiny spot between big rocks.
This little guy, who D says is known as Indian Feather.
The rock rose, who looks more like this than as pictured with the desert marigolds above.  The rock rose boasts an abundance of blossoms, and likes the sun where it is, but finds the wind challenging.

This tiny guy, apparently a damianita daisy.

And this familiar little wildflower, who appears around now to decorate the path down to the old goat-pen.

The damianita daisy looked good this way.

The gazania worked as a painting . . .

. . . but also in a more impressionist mode.

For the moment, went abstract-impressionist w Indian Feather

The rock rose seemed to like this treatment.

Elsewhere in the garden, recently, the birds are hanging around, as usual, and these were a couple of my favorites among recent images they gave me:

Sunday, April 2, 2017

Did County Commission Do El Paso Electric a Favor?

El Paso Electric made an interesting announcement recently: its plan to request a rate hike in 2018 in southern New Mexico will be delayed.

It's going ahead as planned in El Paso; but not here.

We owe gratitude to Merrie Lee Soules, Positive Energy Solar, Allen Downs, Rocky Bacchus of One Hour Air-Conditioning, and Steve Fischmann; but also to the City of Las Cruces and the County of Doña Ana. All those folks filed as intervenors in EPE's most recent cases; they questioned and rebutted EPE's “facts” with a clarity the PRC wouldn't have managed without them; and EPE apparently doesn't want to see them again real soon.

So when you pay your electric bill each month, thank these folks that it isn't higher.

Sadly, the County Commission moved to make it a little harder for the County to intervene next time around – and there's always a next time with EPE. A publically-traded corporation exists to make a profit. The current system means EPE gets paid off for capital expenditures. So EPE will do its damndest to built new power plants on very flimsy excuses.

Tuesday the Commission passed a resolution under which each time there's a new rate case, it'll require a vote by the commission to intervene. That sounds innocuous enough, and maybe it won't be a problem; but it's odd. These are 4,000-page cases. I'm doubting the commissioners will wade through that.

The general interpretation of Tuesday's action was that it was meant to pull County Manager Julia Brown's chain. The effect is that if EPE's timing is tricky or it can influence a couple of commissioners, our county commission will fall silent when the utility tries to rip us off.

Commissioner Billy Garrett said the intervenors saved county residents $7.5 million recently. He and Brown pointed out that in complex rate cases things change rapidly, and that Tuesday's change could cause the County to miss important deadlines. I completely agree.

Interestingly, when Garrett proposed an amendment, under which the Commission would have been informed in detail every two weeks and could instruct Brown accordingly, Commissioner John Vasquez (who had proposed the resolution) saw the wisdom in that. Three others didn't. Commissioner Ben Rawson then moved Vasquez's original version, which passed 4-1.

The three new commissioners want to send Brown a message – but their chosen method could end up costing us money. One observer said Rawson might be trying to use the anti-Brown sentiment to help tilt the playing field to ease the utility's course. But Rawson, who voted for the 2015 resolution delegating the matter to Brown, said that when he asked about one matter there was confusion among county management about whether or not the County had intervened. Thus he felt the commission should tighten up control.

It seems sad, coming just days after folks at a Progressive Voters Alliance meeting had congratulated some of the intervenors, including the City and County. I hope the commissioners weren't acting in concert with the utility. I wonder if EPE will spend considerable sums to influence the results of local elections here. Electing commissioners and councillors who'd back off this intervention business could be real profitable.

Meanwhile, the Commission also looks poised to let Bowlin's sell fireworks. I hope Vasquez and Isabelle Solis recuse themselves from that vote. They might mean well, but collecting $2,500 in campaign money from Bowlin's, then voting for a dumb measure that would benefit Bowlin's, wouldn't look real good. 

During a local election in a rural county, $2500 is a lot of money. I hope EPE won't be asking what it buys.

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 2 April, 2017, and also on the newspaper's website and KRWG's website.  KRWG also broadcasts a slightly shortened spoken version twice on Wednesday.]

[With regard to EPE's situation and rate-hike requests, see also Steve Fischmann's recent column
published in the Sun-News several days ago.  Some of the intervenors prepared a summary of issues with El Paso Electric.   This is the summary from February.  As that summary notes,
"EPE is a sophisticated, publicly traded corporation valued at nearly two billion dollars.  It has enormous resources at its disposal and a shareholder expectation that corporate managers will maximize profits. This is what EPE is doing, relentlessly and without shame, in every position it takes throughout the regulatory process."

Maximizing profits is, of course, exactly what a corporation's job is.  So EPE's highly-paid lawyers and press people are doing their job, full-time, to spin stories their way and camouflage or ignore facts that don't fit their version of events.  That's what they are supposed to do.   Meanwhile the PRC is not necessarily a group that will investigate fully and discover the well-hidden holes in EPE's reasoning.  The PRC does have staff; but it's important than when a $2 billion corporation is spending time and resources to make things look one way, we ought to have at least someone to examine the corporation's version of events and point out errors that could save customers money.  We'd sure like the County to continue participating in that effort.]

[With regard to Commissioners Soils and Vasquez and the fireworks issue, I do not mean to cast aspersions.  I'm not accusing them of anything.  I do not contend that they are legally required to recuse themselves.  On the other hand, it doesn't seem unreasonable to ask public servants to go above and beyond the minimum legal requirements with regard to ethics.  I understand we'll never consistently get that level of ethical conduct from folks running for higher office; but we could try to ask it of local office-holders.]

[NOTE: Allen Downs has pointed out that while my column "focuses on County intervention in rate cases, but the point we interveners tried to make at the County Commission meeting is that it is important for the County to be involved in the cases that precede a rate case. It is during these other cases (renewable energy, Energy efficiency, IRP, CCN) where the decisions to spend money are made.  By the time a rate case rolls around most of the spending decisions have been made and the issue being decided is which expenses can be charged to rate payers and which rate group will pay what share of the increase (in the last rate case it was also determined that rate payers should NOT pay some of the expenses EPE was asking for, thus reducing the overall increase amount)."  In other words, the issue is much wider than merely rate cases; and (in my view) the fact that there are a variety of other varieties of cases, some of which may superficially appear insignificant, heightens the importance of allowing for the more flexible procedure in which the County can intervene without a formal commission vote.  County manager must report at each meeting of any intervention-related developments.  Commission retains control, of course.  If the commission disagrees with an intervention, it can vote to withdraw the intervention, limit it to particular aspects of the case, or simply not to file any substantive papers after the notice of intervention.  Much safer.]

Saturday, April 1, 2017

Out Back 1Q 2017 A

The Discussion
Black-throated sparrow
This post assembles images shot out back of the house during the first quarter of 2017.  The opening image, shot the morning of 1 March, sure seems to symbolize how we talk to each other these days.  The pyrrhuloxia is thoroughly sure of something -- but the smaller bird seems distinctly unconvinced.  Or maybe I've been paying too much attention to politics of late.

We've lived in this little house six years.  Part of what we've loved about it is that it's right
Curved-bill thrasher
in the middle of desert life.  The birds are a key part of that.  On too few mornings I take the time just to sit outside, drinking coffee, watching and listening avidly, wondering if a poem will happen, and/or trying to catch images like these of the birds going about their mornings.

The birds vary in their shyness.  Black-throated sparrows and some other sparrows are the boldest.  They'll venture pretty close to us.  After some disruption, they're the first to
return.  Curved-bill thrashers are pretty bold, too.  Then the house finches.  

House finches are the most frequent sources of bright color this season, except when the pyrrhuloxia particularly the male) deigns to join the party.   The male house finch is the redder.
Photographs from these mornings . . .

. . . usually end up other sorts of images somehow

The house finches are often together, like an old married couple chatting over their plans or memories, or whether or not last year's offspring will visit in the spring. 

Pyrrhuloxia - or Desert Cardinal

Note someone flying toward him at lower right

This guy seems to be skipping down the branch

Pyrrhuloxia on Ocotillo 927

The hummingbird deserves . . .

. . . special photographic treatment

The Sinister Stranger
It got suddenly silent.  There were no birds.  They'd already scattered once, when I came out to this wooden bench a half hour or so ago, but then they'd wandered back in and largely ignored me, though the pyrrhuloxia hadn't come in. So why?  Then I spotted an eye shining in the shadows of a creosote bush.  Larea.  A hawk? I couldn't see much of the bird, but I stared at his eye and slowly brought the camera up to get a better look at him through the 600 mm. lens.

Yeah.  Hawk.  Smallish, but a hawk.  Made sense.  As I watched, we were both motionless, silent, alert.  Each in our way hunting.  Each a frightening apparition to the small birds, though I meant them no harm, but was just big and ungainly.

Something in the mood reminded me of a film noir in which a stranger in a black hat has just appeared on the street across from the protagonist's window.  Or the heroine's.  We haven't seen him arrive, he's just suddenly there, silent and sinister.  Seemed there oughtta be a poem somewhere in there, in the moment and how it felt, but I had only a camera, no pen.  As I watched longer, he did move to a slightly more exposed spot.  After awhile he landed in the clearing between his post and mine, but before I could shoot a closer image of him he flew up and around the house.

He could have been a young Cooper's Hawk.  They're here all year round, so we see a lot of 'em.
He also could be a Sharp-shinned Hawk.  They're only here in winter, but winter it is.  They're also a bit smaller than Cooper's.  Both have yellow claws and eyes, and the brown lines on the belly and chest; but on the Cooper's those lines are longer and thinner, while the lines are browner and thicker on the sharp-shinned.  Given that when I first saw him I wasn't even sure he was large enough to be a hawk, and that the Cooper's are very slender, I leaned toward the idea he was a sharp-shinned; and the lines aren't so long and thin.  Too, Sibley said the sharp-shinned "often hunts around houses and birdfeeders; hunts from concealed perch or low, patrolling flight; captures small birds by surprise."  He'd been well-concealed with ten meters of some bird-feeders.