Belated Justice - Jury Finds against County Treasurer

Justice appears to have been done. Finally.

As most readers know, David Gutierrez has been our County Treasurer for nearly eight years. In 2014, he requested to ride along with a female employee (whom he'd sexually harassed before, I've heard) to the bank, then had her drive back by an odd route and ultimately offered her money for a couple of hours in a motel room. He then tried to convince his deputy to delay reporting this misconduct so that he could “smooth things over” with the victim.

Make no mistake: this was not sex, but a use of his power as her employer to embarrass her. In many states, what he did would not only be sexual harassment but a crime, solicitation of prostitution. Unfortunately, New Mexico's statute doesn't cover his precise conduct.

I'll disclose I have a history with this case: I worked with the County Democratic Party to help it throw him off the central committee and censure him. We also encouraged him to resign. I felt strongly that the Democratic Party should lead the effort to recall him. I also looked into the recall procedure and discussed the criminal statute with an Assistant D.A. 

I felt strongly about it because people shouldn't abuse power, particularly to harm those under their control. (As a lawyer in a big law firm, I thought that how others treated secretaries and other employees beneath them in the system was a major indication of their character.) That's particularly so with a “public servant.” It's particularly so when the employee is under some further disadvantage, such as being female or a member of a minority ethnic group.

I also thought Gutierrez was arrogant in refusing to resign when he had admitted such misconduct. It rankled that we were paying him.

There was also further information the jurors didn't hear. Once I wrote about this incident, I got several calls from people who wanted to tell me more about Gutierrez. They drew a portrait of an office in which the boss's undue interest in pretty women was systemic and unpleasant. 

It's right that the jury didn't hear such further accounts. Those were not under oath. The jurors' task was to decide just this case, on its own facts. 

I did not attend the trial. I have not researched the details of this public corruption / gross immorality provision, and offer no opinion on how an appeal would come out. (The prosecution may appeal the dismissal of a companion criminal charge.)

But the quotes I read from the defense seemed childish. His story that his proposition wasn't serious, but was meant to compliment her and cheer her up? Cow manure. His testimony is inherently weak – and doubly unconvincing because he apparently didn't say that when his deputy questioned him.

His attorney's “Donald Trump did it” argument in closing? Inappropriate. Also probably a more promising argument in Georgia than in Doña Ana County, where candidate Trump didn't do so well. Even most Trump supporters had to hold their noses over that aspect of his character – or deny it to themselves, or conclude that Trump's character flaws were part of God's plan.

Kudos to D.A. Mark D'Antonio and the trial attorneys for prosecuting Gutierrez and winning. I wondered why things took so long. There were reasons: the need for an actual request from the county, uncertainty about the victim's full cooperation, local judges recusing themselves, and the eventual judge's busy schedule. 

 

I'd rather have seen this many moons ago; but the wheels of justice turn at their own pace, not mine.

                                                                 -30-

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 4 December, and on the newspaper's website, and will appear presently on the KRWG-TV website.] 

[The length of time Mr. Gutierrez sat in office after admitting this misconduct not only shows something about him but indicts community leaders, including this columnist, for at least laziness in not facing the significant time-challenge of recalling him from office.  Some folks didn't care.  Some folks, including me, pushed it for awhile, but couldn't generate enough enthusiasm and went back to doing other things.  We're all busy, and pressed for time, and recalling him would have been a significant chore requiring many participants.  But we ought to have done it, rather than paying him a salary for an unnecessary year or two and letting him suppose his conduct was all right.]

[As to why he wasn't tried and convicted on the crime of soliciting prostitution:  New Mexico doesn't have a criminal offense named specifically "Solicitation of Prostitution"; but there's a statute on "Promotion of Prostitution":

30-9-4. Promoting prostitution.  

Promoting prostitution consists of any person, acting other than as a prostitute or patron of a prostitute:   

A.   knowingly establishing, owning, maintaining or managing a house of prostitution or a place where prostitution is practiced, encouraged or allowed, or participating in the establishment, ownership, maintenance or management thereof;   

B.   knowingly entering into any lease or rental agreement for any premises which a person partially or wholly owns or controls, knowing that such premises are intended for use as a house of prostitution or as a place where prostitution is practiced, encouraged or allowed;   

C.   knowingly procuring a prostitute for a house of prostitution or for a place where prostitution is practiced, encouraged or allowed;   

D.   knowingly inducing another to become a prostitute;   

E.   knowingly soliciting a patron for a prostitute or for a house of prostitution or for any place where prostitution is practiced, encouraged or allowed;   

F.   knowingly procuring a prostitute for a patron and receiving compensation therefor;   

G.   knowingly procuring transportation for, paying for the transportation of or transporting a person within the state with the intention of promoting that person's engaging in prostitution;   

H.   knowingly procuring through promises, threats, duress or fraud any person to come into the state or causing a person to leave the state for the purpose of prostitution; or   

I.   under pretense of marriage, knowingly detaining a person or taking a person into the state or causing a person to leave the state for the purpose of prostitution.   

Whoever commits promoting prostitution is guilty of a fourth degree felony.

The only subsection remotely applicable would be 30-9-4(D): "knowingly inducing another to become a prostitute."  At least arguable, had the victim consented to prostitute herself for Mr. Gutierrez, he'd be guilty of this; but she didn't.  Could he have been indicted for "Attempted Promotion of Prostitution"?]

 

My Takes on the 2016 Races for County Clerk and County Treasurer

The Doña Ana County Clerk and Treasurer races each present an obvious choice – the Democrat and the Republican, respectively. 

Deputy County Clerk Scott Krahling faces Maria Rodriguez. Deputy County Treasurer Eric Rodriguez faces former treasurer's office employee Jill Johnson. 

In each race the deputy's history is adequate grounds for decision. 

Mr. Krahling is a competent and enthusiastic deputy to Clerk Lynn Ellins. He's worked to ensure honest and relatively smooth elections. He also personally initiated a non-partisan task force to audit office procedures and make recommendations to the NM Secretary of State to enhance protection of personal data in the state system. Then he initiated a non-partisan “get out the vote” committee, headed by a noted Republican who had run against Ellins four years ago.

Eric Rodriguez was appointed deputy in January, after Treasurer David Gutierrez fired Deputy Clerk Rene Barba for refusing to promise that, if elected, he would appoint Gutierrez his deputy. That cost the County $$ to settle Barba's lawsuit. Barba had also refused to cover up Gutierrez's sexual misconduct: Gutierrez sexually harassed an employee, and the County shelled out, again, to settle her lawsuit.

Gutierrez's conduct would be a crime in most states. His refusal to resign insults all of us. Appointing Rodriguez suggests maybe Rodriguez made the promise Barba refused to make. No way you and I should keep paying Gutierrez. Rodriguez has not denied with sufficient certainty that he'd hire Gutierrez. That removes him from consideration. Absolutely.

Jill Johnson brings highly pertinent experience to the race for treasurer. She was an internal auditor with the County and worked in the treasurer's office. (Her whistleblower lawsuit was a third settlement Gutierrez cost us!)

Johnson spent 25 years with Caterpillar, in accounting and audit-related positions. At Caterpillar and at the County, she has consistently pushed for common-sense innovations. She improved the efficiency of the Treasurer's Office by working closely with IT to coordinate reports. She also made it possible for citizens to use debit or credit cards to pay. If elected, she'd work to enable monthly payments.

Eric Rodriguez is a charming young man. He was a bank teller and loan officer. If he had sworn never even to consider Gutierrez as a possible deputy, this race might be a tougher call, although Johnson would still have the edge in experience; but he didn't. He and Gutierrez were photographed putting up signs together during the primary. How much more might Gutierrez cost us in attorney fees, settlements, and abused female employees? 

A long-time paralegal, Maria Rodriguez has been appointed magistrate and administrative law judge. She seems a good person. A friend speaks highly of her paralegal work.

But her lack of experience in the clerk's office is troubling. She knows more than most citizens, but lacked real answers to several questions. She said New Mexico has a law requiring everyone to carry ID. I couldn't find it. She seems to favor requiring voters to have picture IDs, even though it might disenfranchise some people and voter fraud is as rare as unicorns. Her main campaign point is that an employee misused the state voter records system to copy personal information to commit a crime. That happened – facilitated by state records containing full social security numbers. I've seen no evidence the Clerk was careless. Krahling's response has been exemplary.

The next clerk takes office January 1, with a school board election February 7. Why trade Krahling's extensive experience and good ideas for someone who'd have to learn on the job?

Krahling sets a high standard that Ms. Rodriguez can't meet. Rodriguez (with Gutierrez looming behind him) sets a low bar Johnson clears easily.

                                                   -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 25 September 2016, as well as on the newspaper's website and on the KRWG-TV website.]

[Couple of further notes from right after I sent the column in to the newspaper.  First, at Thursday's PVA session Eric Rodriguez said he will not appoint David Gutierrez to any position in the County Clerk's Office.  Second, I took a look at the recent John Birch Society event here, which is worth a column of its own, and found that Maria Rodriguez and her husband were listed among the generous supporters.]  

[Eric Rodriguez didn't mention Gutierrez's sexual misconduct or the three settlements Gutierrez cost us; Gutierrez is, after all, Rodriguez's mentor; but Rodriguez did assert unambiguously that if he became County Treasurer he'd not hire Gutierrez.  He seems a good kid.  I wish him well.  But for this race this year, Johnson -- though I disagree with her on a lot of political issues, vigorously -- still seems the better bet for the office, based on the breadth of her experience.] 

[The John Birch event was billed as "Support your Local Police" but was a front for the old right-wing hate group.  (Forty years ago, JBS opposed equal rights for blacks, and integration.)

The event had nothing to do with supporting police officers in any meaningful sense.  Rather, it concerned the JBS's paranoid fantasy that the feds are trying to do away with local and state police and have a federal police force.  (JBS asserts that a current program to fund further training of police is a sly step toward absolute federal control.)  The group also said Communists were behind the Occupy Wall Street demonstrations -- just as the group used to say the civil rights movement, aimed at integration and voting rights in the U.S. in the '60's, was Communist.   I was in that one.  It was a mostly bunch of good-hearted young people appropriately pissed off at racism and segregation and hoping to change things.  Communism was irrelevant.  It's even more irrelevant now, when it's been pretty much discredited everywhere.  But this hate group still wants to put everyone who disagrees with it in the "Communist" box so as to avoid actually confronting sometimes difficult questions.

Invitations to the event here a couple of weeks ago listed "sponsors" and "supporters" of whom some had no clue the thing was a JBS event.  (My friend and former client Earl Nissen says he has contacted several of these folks, and that so far two of the six "sponsors have said they had no intention of supporting JBS.  So have several "generous supporters."]  

[Naturally I asked Maria Rodriguez about her support of JBS.  She responded that she had no idea who John Birch was.  I told her, and told her a little about the group.  She said she just sought to get her name out there, since she's running for office.  I urged her to take a look at the JBS and let me know whether it's a group she supports or would disclaim any interest in.  She called back, still not knowing much about JBS, and said she hadn't intended to endorse any group.  Apparently JBS suckered her, as it did the others. I believe she had no intention of supporting JBS.  

[More generally, I'm curious who among the "sponsors" really supports the group and who doesn't.   I'm betting most of our local businesses and individuals are more decent than that, and were gulled into helping JBS because they felt, as most of just do, that police officers need support right now.  Personally, I think it's possible to support police officers, and try to help them, without being racist -- as it is to support better treatment of blacks without buying the idea that all police officers are racist.  They are not.]

[Ms. Rodriguez also elaborated on her view that people should vote for her because of the identity theft committed by employees in the clerk's office.  It did indeed happen while Mr. Ellins and Mr. Krahling were running the office.  However, the vulnerability and temptation were created by a statewide way of handling such information; no one has pointed me to any evidence of particular laxness by Mr. Krahling, let alone any involvement; and Ellins and Krahling acted definitely and appropriately in responding to the problem.] 

More Reflections and another Convention

More reflections on events near and far . . . 

A finance website ranks Las Cruces 12^th “best-run” among 150 cities on factors including financial stability, education, health, public safety, economy, and infrastructure/pollution. Although the city council doesn't control all those areas, the ranking suggests our local government ain't the disaster some critics claim it is.

Meanwhile our local political embarrassment, County Treasurer David Gutierrez, is threatening to sue the county. I doubt he's that dumb. Frivolous lawsuits can boomerang. Judges can order plaintiffs to pay for legal fees their bogus claims cost defendants. If he sues, and the county wants some volunteer legal help, I'm in. You harass an employee by offering a $1,000 for sex, refuse to resign, fire your chief clerk, and cost us healthy settlement payouts to both your victims, then complain when the county wonders if you should pay something? 

We're two nights into the Democratic National Convention. Someone reading my last column, which touched on the Republican Convention, urged me to write on this one, too.

Is Hillary Clinton my favorite politician? No. I disagree with many of her stands, including her initial support of the TPP. I also dislike the way party machinery apparently took sides in the primaries.

But I have to respect her for surviving not only Bill's very public infidelities but literally decades of expensive efforts to prove she killed Vince Foster or called off forces that could have saved lives in Benghazi, or committed various other crimes. (Enemies' repeated allegations, despite failures to prove their truth, have damaged her reputation. Closest call? Aware that the state department server was a poor security risk, she used a private email server, much like what previous secretaries of state did. Against regulations. She shouldn't have done it. But if I'd been advising her, I might have advised her to do it.

Even before Bill's reminder Tuesday night, I thought back to how she began: a young woman trying to make things better. Briefly she thought Barry Goldwater was the way. Then she became a Democrat, fighting poverty and protesting a stupid war. Trying to improve people's lives. While Donald Trump was getting a $7 million head start from his father. Fred also co-signed loans essential to Donald's first big project, then bailed him out a couple of times with more millions, before Donals put six companies through bankruptcy and bragged to the world about what a great businessman he was. Come again?

Do I think Hillary lost her way somewhat? Yes. Big bucks for speeches at big banks the government needs to rein in? Not good.

For a moment Monday night during Elizabeth Warren's speech, did I wish she were the candidate? You betcha. Clearer, cleaner, purer. (I also think Trump, who says whatever comes into his head, poses a unique debating challenge that Warren's style would crush.) 

But which of us hasn't lost our way somewhat? I was a civil rights worker and antiwar leader, but got distracted for decades frittering away my abilities representing corporations against each other in huge lawsuits. Fun; intellectually challenging; comfortable; but not the best contribution I could have made to the world. So I won't judge Hillary too strongly.

This election pits a party of inclusiveness, tolerance, even love, against one running on hate and fear-mongering. Oversimplification? Sure; but with a fair quantity of truth.

Trump's a pathological narcissist with no ideas beyond self-aggrandizement and no program beyond divisiveness. Hillary's a well-intentioned lady, experienced and imperfect, who has dedicated much of her life to improving our country. I see a major difference.

                                                -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 31 July 2016, and on the newspaper's website, and will presently appear on KRWG-TV's website under News --> Local Viewpoints.]

[The column was written after the first two nights of the four-night convention that ended Thursday night.

First, aside from which party one sympathizes with, the Democrats put on a much tighter and professional show.  That's partly a difference in skill or dedication or funds, but also reflects what each party had to deal with.   

Notably, each party had to deal with a level of internal dissension unusual in recent presidential conventions, although it used to be quite the norm. 

Among Republicans, you saw a lot of delegates who passionately loved Trump's candidacy, but also many who sat on their hands; Ohio Governor Kasich refused to attend the Convention, though he was in Cleveland; Ted Cruz said what he said; all the Presidential and would-be Presidential Bushes stayed away.  In Philadelphia, much of the first night belonged to Bernie Sanders; some of his delegates were clearly angry about HRC's nomination, as they had every right to be; but Sanders gave a strong endorsement speech and most of his supporters responded strongly to Hillary. 

Folks could reasonably argue about why there was such a difference.  Cruz is the most hated U.S. Senator among other Senators and is a strange fellow, while Bernie has been in Congress for decades working with all sorts of people he doesn't always agree with.  One could argue that Cruz's hurt feelings were anomalous in politics -- or that Trump's vicious personal attacks were the anomaly.  Trump called Cruz "Lyin' Ted," talked about Cruz's wife, and followed the National Enquirer's lead in suggesting Curz's beloved father was in cahoots with Lee Harvey Oswald; and he said unusually vicious and personal things to several other candidates, some of whom brushed them off.  My own view, of course, is that Trump represents a unique danger among U.S. Presidential nominees and that anyone with good sense (including every man who's sat in the Oval Office and most Republicans who've been nominated for the office) would have declined to endorse Trump.  Thus you can't necessarily fault the folks running the Convention.  It's easier when your party's current former presidents are solidly behind your nominee and the two whose health allows them to attend are also great speakers; by contrast, Republican convention organizers weren't going to convince Romney or McCain or either President Bush to show up -- just Dole, who looked kind of lost, but grateful to be remembered.)  (I do think Trump's Republican competitors should have declined to take the "Pledge" to support any eventual nominee.  Early on, they were so desperate to keep Trump from running as a third party candidate that they all pledged their support -- despite the obvious fact that Trump's word would mean nothing and that  he himself, if not the nominee, would keep or break his word based on what he felt like doing at the time.)

One should also note that the Democratic organizers had a handicap: they had to deal with all the justified anger about the released emails and Ms. Wasserman-Schultz. 

Beyond those division, the Republican convention seemed disorganized, kind of sad, and bereft of real stars, while the Democratic convention was a powerful, unifying event.  Will the difference be as big in get-out-the-vote efforts?] 


 

County Treasurer Davd Gutierrez Must Resign

Although I was tempted to write this week about the Las Cruces City Council's strange conduct Monday, it's also important to discuss the situation of our elected County Treasurer, David Gutierrez.

The facts seem simple: Gutierrez has admitted he solicited sex from a female employee while they were in a car traveling on county business. He admitted he'd said what he'd said and that he'd meant it. (That's to his credit – unless the lady was wearing a wire.)

There's also significant evidence that this was no one-time error in judgment. His alleged harassment of the same victim was reported in January to HR Director Deborah Weir and County Counsel John Caldwell. I didn't see the evidence, don't know what investigating they did, and can't judge them. One employee said, “she wouldn't have had to go through this if they'd done their jobs.” (On the other hand, maybe they did, somewhat slowly, and this was the result.)

Gutierrez must resign. He's an embarrassment to the County and himself, and to his party, community, and family.

We must force him to resign. While he may wish to keep receiving a handsome salary from us, remaining in his position could cost him heavily in fees fighting a possible recall effort and perhaps criminal charges.

A crime? I'm no criminal law specialist, but solicitation of sex-for-money is a crime in most states. Where he's already admitted it, the facts should be easy to prove, but a quick look at New Mexico statutes leaves me doubtful that those facts fall within the specific language of relevant statutes. (For example, “criminal solicitation” must be solicitation of a felony; and one sub-paragraph of the law on “promoting prostitution” looks as if it would apply only if she'd taken his suggestion.)

Democrats should get off our tails and actively encourage him to retire, even if the sitting governor gets to appoint his replacement. This transcends politics. (Although his conduct had nothing to do with his party affiliation, he happens to be a Democrat.)

I attended the annual Labor Day Breakfast about honoring labor, and heard all folks said there about honoring labor, as Democrats have traditionally done. Here, a man abused his power at the expense of workers he supervised.

I called to invite Mr. Gutierrez to tell me of any extenuating circumstances. I received a long email saying the public accounts were “not contextually thorough” and asked that people forgo quick judgments and extend “compassion and forgiveness.” He didn't offer to fill me in on the context, but said the incident wouldn't affect his job performance.

Gutierrez, as an elected county official, is automatically on the Democratic Central Committee. I believe County Democrats should formally consider (1) terminating his Central Committee membership and (2) censuring him and urging him to resign. Democratic County Chairwoman Christy French has convened the Judicial Council to discuss these issues soon. Gutierrez will have the opportunity to explain his side of things.

New Mexico's Constitution directs that 200 valid signatures on a petition can get a grand jury called to look into an alleged crime or official misconduct. (So can a judge, if s/he deems it necessary.) If no officials plan to act, perhaps citizens should. (Recall is cumbersome, and costly to the public.) Somewhere along the way Mr. Gutierrez will likely realize that the longer he fights, the less he retains citizens' respect or affection.

He needs to resign. I suspect he also needs to seek treatment from a qualified professional sooner rather than later, and (unless he plans to leave the County) begin the painstaking task of rebuilding some hint of community trust and respect for him.
                                         -30-

The above column appeared in the Las Cruces Sun-News today, Sunday, 14 September, 2014

Recall:
The column mentions recall.
Under New Mexico law, to recall him takes signatures equal to 1/3 the number of votes cast in November 2012, when he was re-elected. Unfortunately, that was a Presidential Election year, with a larger turnout than most years.  The people could surely do so, but at significant effort, and the resulting special election could prove costly.  Thus it should be undertaken only as a last resort.

County Democratic Party:
On 10 September, Ms. French wrote to the Judicial Council, the appropriate body to hear the case, petitioning it to meet soon concerning Mr. Gutierrez.  In part, she wrote:
Understand that I do not bring this petition lightly, but under the circumstances, I feel it is the right thing to do and it is necessary for the Democratic Party of Dona Ana County to show the voting public that we do not condone this type of behavior.  In addition to removing Mr. Gutierrez as an officer from the County Central Committee, I am asking the Judicial Council to formally censure Mr. Gutierrez and ask that he resign his office.

Did County Officials Hear about the Problem Earlier?
I've been told "Yes, definitely", first-hand, by someone who says it was discussed at a meeting within the County's HR Department -- and that HR Director Deb Weir voiced an intention to discuss the matter with County Attorney John Caldwell.
The County says "No, definitely."  It took me a while to get a comment, but the comment (after deadline for the column) was a definite "No", that no one reported to HR back in January that there was a problem with  Mr. Gutierrez's conduct toward women, or toward this particular woman.  
A couple of people had criticized Weir and Caldwell for inaction.  I wondered if maybe they'd taken some action, or at least investigated, but apparently not.

Seeking Comment from Mr. Gutierrez:
The column mentions my invitation to Mr. Gutierrez to comment.  I phoned and left him a message.  He responded by email, from which the column quotes.  It seems fair and appropriate to publish the full email, though it wouldn't have fit in the column.   Below are the email I received and my reply.  So far, I've heard nothing further.
(Of course, Mr. Gutierrez will also be invited to tell his story to the county Democratic Party -- and presumably could do so to the Las Cruces Sun-News or to KRWG-TV.)

David Gutierrez <>	Sep 8 (2 days ago)
to me

Mr. Goodman, I did receive your voicemail message, and I appreciate that you are reaching out to me for my side of the story. As you can well imagine this is a difficult and painful time for me and my family. After 18 years of dedicated public service in various roles for both Mesilla and Dona Ana County, my reputation has suddenly been pinned on a conversation that lasted less than two minutes. The picture painted by the official investigative report and discussed publicly on Aug. 29 is not contextually thorough, and I believe it unfairly portrays me, my words and the aftermath of the original conversation. What happened is regrettable, but it does not affect my ability to act in the best interests of either my office, my fine staff or the taxpaying residents of Dona Ana County. I am hopeful that all those who would judge me based on that two minute window of time would show some compassion and forgiveness during this difficult time, realizing that none of us is perfect and those of us who live in the fish bowl of public service are scrutinized in ways most people cannot imagine. There is always more than meets the eye, which is very much true in this case. Thank you again for the opportunity to state my side of the issue.

David Gutierrez

Dona Ana County Treasurer

845 N. Motel Blvd.

Las Cruces, NM 88007

(575) 647-7433

Peter Goodman <>	Sep 9 (1 day ago)
to David

Mr. Gutierrez -

Thanks for your reply, but it left me unclear: do you want to talk about your side of this, or extenuating circumstances, or leave the record where it lies?   If what we've heard may be inaccurate, I'd like to hear your view on that before I write a column or otherwise act.

I do wish to hear your side; but your email doesn't tell me your side, but just says you have one, which I'd figured was likely.  I do recognize that you've provided valuable service to the community; but public / political positions are what they are, and there are good reasons folks may not extend the kind of forgiveness/patience/compassion and avoidance of judgment that they/we would do with a private person acting as an individual.

Certainly my initial view of this, to be frank, is that you should resign, but that you deserve every kind of consideration, compassion, and assistance as an individual and one who's served the community for some time.   That's my initial view, based on what I know now..  I'm open to argument, or to learning new facts.

Please feel free to email or call me -- 521-0424 or (510) 282-6690.