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. ]  

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