Basketball in Las Vegas -- on Doña Ana County's Nickel

In late July, some Doña Ana County Sheriff's Deputies played in a basketball tournament in Las Vegas, which you and I helped pay for.

 

Some other deputies weren't too thrilled. Nevada seemed too far away for the event to help improve cop-community relations. They also found it odd that, although the players who'd been scheduled to work initially put in for vacation time, approved by their supervisors, their time records were later changed to reflect regular work. (Union President Sergeant Ben Casillas changed all the time records except his own, and Undersheriff Ken Roberts changed Casillas's.) Other deputies had actually worked 10-hour shifts for their money. 

 

Some felt it was unfair and illegal: that if the trip was a departmental activity, it should have been more widely advertised within the department; and that if it wasn't, why did the public end up paying for it? Further, it's well known that Roberts and Casillas are close. Adding to the confusion, around that time Casillas sustained a leg injury that reportedly required changes in his duties for awhile.

I got curious, of course. I asked for and received documents, including Kronos records that confirmed the belated change from vacation to regular time. ( I also received emails I haven't been able to open yet.)

Casillas confirmed some of the information and denied some. He admitted there was no department-wide advertising of the tournament, just “word-of-mouth.” He said that participating in the Police and Firemen's Games was a positive thing for the department, and that he'd spoken to Sheriff Enrique Vigil (not to Roberts) about that. Vigil authorized the change to regular time.

He also denied that he was injured in the tournament. He said he was injured playing basketball, but not during the Vegas tournament, which he didn't play in because he was sick. (He declined to say whether he'd put in for workman's comp, but his statement that he hadn't been injured while working seemed to suggest strongly that he hadn't.)

I asked him how the trip benefited the department. He said that “law enforcement agencies participate in a lot of other things that do not involve your typical work duties.” He cited local events, including Law Enforcement Night Out and participation in the Law Enforcement Torch Run, plus representing the department at funerals.

I said I could see calling, say, a neighborhood versus DASO softball game as a community activity. But Las Vegas, Nevada?

He said that there was a benefit to the department. That playing enabled deputies to mingle with other law-enforcement entities, and build relationships with some of those entities, some of which were from neighboring Arizona. He said these Games were “like the law-enforcement Olympics” and that participating “put the department on the map” with others, including big-city agencies. (It was a highly-competitive tournament.)

He also pointed out: that although men scheduled to work who'd taken vacation time ended up getting paid, no one who hadn't been scheduled to work those days was paid anything for going; that having the agency pay for players to participate was common, according to what he heard from players from other cities; and that while DASO's players paid for their own travel and got only their regular pay if they'd been scheduled, some larger-city departments paid for the trip and gave their players per diem as well.

Talking to Casillas, I got the sense that there's some dissension in the union. I'd heard long ago that some members weren't keen on his closeness to management, and thought he'd gotten special treatment from management. (Roberts preceded him as local union president.)

                                               -30-

[The above column appeared this morning, Sunday, 15 October 2017, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website.  A spoken version will air during the week on KRWG and KTAL-LP.]

[Certainly some at DASO were displeased with the way this trip went down, and the belated change to the way people's time was characterized.   On the other hand, Casillas says it was reasonable and that the change wasn't intended to be belated.  Not my job to decide, just to shine some light on these events.]

[I got the sense from Casillas that he viewed the complaints as related to a possible challenge to his presidency of the local union.  If there is such a challenge, it may prove interesting to see how that comes out.  There's an unusual history: Sheriff Vigil fired his previous undersheriff and appointed then-union-head Ken Roberts undersheriff.  Roberts and Casillas are reportedly pretty close.  (Certainly some have complained about cronyism.)  Whether that level of closeness between management and the union is healthy or unhealthy isn't for me to decide, although it would seem a bit unusual.  Since many have complained about Roberts's management, the results might suggest something about how widespread the negative feelings are.  I forget whether or not it's a secret ballot, although I think it is.]

[For those keeping score, it was a very competitive tournament, with teams from Los Angeles, Chicago, and other big cities.  DASO's team stood little chance against some very tall teams that had played together in such tournaments a lot over the course of several years.]

Problems Again at Dona Ana County's Sheriff's Office

Is Doña Ana County Sheriff's Office a disaster waiting to be exposed as such? [Three columns will explore that question.] 

Sheriff Enrique Vigil lacks relevant experience. He was a long-time U.S. Marshal; but he hasn't dealt with state laws or the variety of situations a cop faces. He's not a state-certified law-enforcement officer. 

Vigil wisely compensated for that inexperience by naming Eddie Lerma as Undersheriff. Lerma had served two other sheriffs as undersheriff, had many years of experience with DASO, and seems generally respected. 

But Vigil soon replaced Lerma with Ken Roberts, a far less experienced DASO officer who reportedly told five deputies he had “axes to grind” with formerly superior officers, though Roberts has denied that. (Vigil, who's free to choose his undersheriff, announced he had accepted Lerma's resignation; when others called to congratulate Lerma, he was startled to hear he'd resigned.)

Roberts makes a great first impression but has limited qualifications. Before getting demoted, he was  a police sergeant in Shawnee, Oklahoma, many years ago. He served in the military police. He failed to complete the Border Patrol training program.  In 2008, he applied to DASO as an uncertified cadet. Folks in and outside DASO don't give him high marks as a detective.

Good officers are fleeing DASO. “Hundreds of years of experience have been lost,” a current DASO officer said recently. 

“They'll say they're cleaning house,” said a former officer. “That we don't fit in with their philosophy. We don't. We don't fit in with a philosophy of favoritism, cronyism, head-hunting, and lying.” LCPD Chief Jaime Montoya confirms that in asking DASO refugees why they wanted to make a change, he's hearing complaints of “targeting of officers.” I've heard the same from several, have read it in formal complaints, and wouldn't be surprised by a new flurry of lawsuits.

Current and former officers paint a consistent picture: senior officers who speak up or ask questions get punished; officers are threatened, or receive written reprimands for minor offenses that go unpunished in others. 

There are allegations of Whistleblower Act violations, bullying, and harassment. There are allegations that people who should be terminated are not, and that hirings and promotions are made easier for friends and allies. That sort of office politics is annoying anywhere; but with people who take guns into difficult situations, it could prove dangerous. (Some also say Roberts's relative inexperience with SWAT teams negatively affected a SWAT call-out earlier this month.)

Many officers believe (or hope!) that Vigil often doesn't know of questionable decisions by Roberts. They say they can't talk to Vigil, that Roberts always says “I've spoken to the Sheriff, and he agrees with my view on this,” but that in a couple of cases where an officer who heard that ran into Vigil later, Vigil said he knew nothing about it and would fix it. I hope they're right. I believe people close to Vigil have warned him that Roberts could bring him down.

Deputies who talk with me fear retribution. County officials say that Vigil and Roberts seem a lot more interested in identifying the complainant than in the merits of the complaints. Vigil asked Montoya which DASO officers had applied to LCPD. Montoya declined to answer. DASO set an event for the day LCPD had scheduled tests for applicants. 

Vindictiveness may play a role in what's happening. (One senior officer's complaint claims Roberts said he'd retaliate against the officer.) But I'd note that neither Vigil nor Roberts knows much about running DASO. When you're out of your depth, it's tempting to eliminate anyone who might recognize your mistakes or speak up about them. 

                                                  -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 29 January 2016, went up on the newspaper's website the newspaper's website Saturday evening, and on KRWG-TV's website KRWG-TV's website this morning.  I invite comments, here or on those sites, positive or negative or adding information.]

[The whole DASO situation is unfortunate.  A couple of years ago, when an earlier sheriff made a bad hire and couldn't be convinced it was bad, I saw some folks who seemed like good people and good officers suffering in the workplace.  That sheriff never did see the light.  His friend sued me and many others, but lost badly.  Some at DASO have said this situation is worse.  I hope it will resolve itself in a positive way somehow.  As in the earlier situation, the views I'm hearing are widely shared.]

[I've made repeated efforts to obtain comment from the Sheriff and Undersheriff.  I still hope they'll articulate their views -- and, if they feel I have any facts wrong, point those oout.  I have, as an expert I consulted recently on one aspect of this said recently, no dog in this fight. I voted for Mr. Vigil.  I liked Mr. Roberts when I first met him; and, personally, I've had only pleasant encounters with him.  However, I'm troubled by what I see, and am just trying to see and share the truth.]

[I've asked the County and DASO for documents, pursuant to IPRA.  I've received some, and expect others soon.  I prefer not to rely solely on what I'm told.]

[Readers will notice I haven't quoted present and former DASO officers and deputies by name.  For obvious reasons, that's the way it is.  Some have talked to me, others have not.  I can only say that in such a situation I'm particularly careful.  Thus I've spent a lot of hours researching this situation and will continue to do so.]

[Note: I realized I shortchanged former Undersheriff Edward Lerma in describing his experience.  He actually had served three previous sheriffs, not two: Jan Cary, Jim Robles, and Todd Garrison.  I know Garrison was a Republican and Vigil is a Democrat, too.]

 

Louisiana Cares about Dona Ana County!

NMSU hosted a panel discussion Wednesday on outside money spent to influence local elections. Is this a small example?

In 2014 two gentlemen from Louisiana (Glenn Hebert and Steve Afeman) contributed $2300 each to a candidate for Doña Ana County Sheriff. 

Louisiana's a good way off. Apparently, neither man had previously contributed to candidates in other states. Mr. Afeman is the CEO of Emerald Companies, a private prison outfit. Mr. Hebert is Emerald's founder and board chairman. Each gave $5,000 to Louisiana Governor Bobby Jindal in 2007. Governor Jindal has pushed hard for more private prisons. 

Disclosure: I find private prisons unappealing; and the scandal where private managers of a prison for young offenders were found to have bribed Pennsylvania judges to give youthful offenders longer sentences was just what I've always feared from these outfits.

Why would Mr. Hebert and Mr. Afeman (who do run a private prison in Lincoln, New Mexico) take an interest in who's sheriff in our little corner of the world. 

In Doña Ana County, the sheriff doesn't run the jail. 

On the other hand, Sheriff Enrique Vigil, the beneficiary of their largesse, not only has been quite diligent in investigating allegations against the jailer, Chris Barela, but briefly took over the jail this year. Allegations against Barela did deserve a vigorous but fair investigation. County officials differ over whether the jail incident was legal or illegal. And over DASO's motives. (I'm convinced that the actual DASO deputies involved in locking down the jail for awhile had no idea that Emerald had supplied $4,600 – upwards of 20% – of the total $21,274 donated to Vigil's campaign during the general election.) 

Coincidence? Maybe. 

Emerald has run (or tried to get built) a lot of prisons, mostly in Texas and Louisiana.

Some local communities have been very unhappy with Emerald. There's at least a suggestion that Emerald wasn't fully candid with local citizens.

In one town, many citizens strongly opposed Emerald's plans, but community political leaders kept on pushing those plans. 

In Lake Providence, Emerald cut a deal with the lame-duck sheriff, and the incoming sheriff sued to get rid of Emerald. In mid-2012 authorities made a surprise search, found a great deal of contraband, and removed 350 prisoners – more than a third of the population there, apparently. Mr. Afeman reportedly said the search was a ploy by the sheriff to pressure Emerald, and shrugged, “You're always going to find contraband in a prison.” Emerald is no longer running the prison there. “There's not a lot of people here that like them,” one person told me.

One newspaper said Emerald “hustled” small towns: “Like the Music Man, they'd go into small, isolated, and impoverished counties and persuade local officials that an economic boom was just a detention center away. Local officials had only to pay to build the facility and pay them to operate it. Emerald . . . leaves behind . . . some business success but some bad feelings.” In La Salle County, commissioners reached an agreement with Emerald without much public involvement; but when the public realized the bonds “paid an outrageous 12-percent interest, underwriter fees were six percent, [and] Emerald would get a flat amount for operating the prison no matter how small the inmate population, . . . the public was not amused. Lawsuits ensued. It was too late to stop the bond fiasco.” [Links to sources on my blog.] Emerald left. The local government couldn't.

Our concern is Kiki. Was his conduct tied to these donations? Don't know. He hasn't returned my several phone calls. 

                                              -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 27 March, 2016, although I haven't found it yet this morning on the Sun-News website, and should presently appear also on the KRWG-TV website.  I invite comments and criticism, here or at either or both of those sites.]

[Let me be real clear: I can't state that any of Sheriff Vigil's conduct resulted from these campaign contributions.  I regret that he didn't accept my invitation to comment, so that I could include his views.  He got the messages.  He knew I was writing a column he probably wouldn't like, and that I wanted to talk with him, so as to include his views and make the column as fair and accurate as possible.]

[I understand that he (and they) may say that these two guys who head Emerald Correctional Management met him in the course of his work with the U.S. Marshal's Office and were deeply impressed, and that they had no mercenary motives in contributing to his campaign.  I also understand that there are arguments on both sides of the dispute over why the sheriff took temporary control of the Dona Ana jail -- and whether that was justified, legally or factually.  I've taken no position on that, and take none now.]

[If you want to read more about Emerald, here, in no particular order, are: a December 2015 piece in something called "Prison Bidness" , a November 2015 piece on a town moving ahead with Emerald despite a warning , an April 2009 article in "Prison Bidness" , material from the "Private Prison Working Group" , Emerald's website , a blog post from an organization critical of Emerald ]

[I should add that the panel discussion mentioned at the start of the column went well.  It was the annual Sunshine Week panel at Zuhl Library.  Always a topic related to freedom of the press, openness in government, public access to public documents, etc.  This time it concerned contributions, often anonymous and often from outside the local area, to political campaigns, and the Citizens United decision.  It generated a lively discussion among some prominent folks with very divergent views, and kept a relatively large audience interested throughout.  A lot of people were left with things they wanted to say (or ask) and I'm told that there may be a "Great Conversation" on the subject as a follow-up.  (If there is, I'll likely be there.)  Looking back at the Citizens United decision I realize it was even worse than I'd recalled -- not so much in its ugly consequences as in the way the majority ignored basic law and principles, not only on the merits but even more blatantly with regard to basic judicial principles the Supreme Court follows.]

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.

                                                -30-

[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.]