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.

                                                               -30-

[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 professionalism.  But 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. ]  

Valentines Day at the County Commission

Tuesday's county commission meeting felt like a scene in a reality TV series: tangled plot and subplots, threats and harsh words, naked human emotions on public display.

The obvious tensions between Chairwoman Isabella Solis and County Manager Julia Brown,

and between County Sheriff Kiki Vigil and Commissioner Billy Garrett, reminded me of family quarrels. I recalled my father saying sternly to us, “I don't care who started it, but I'm finishing it.”

Citizens and a few county employees spoke up to defend Ms. Brown from what seemed an effort to fire her, for reasons that seemed vague. Many were angry. Some threatened lawsuits or organized electoral opposition. 

Perhaps it's my advancing age, but I suspect most folks, though influenced by some large or small amount of selfishness and greed, would like to be good and tend to believe they are. When they behave badly, or in a fashion that you or I might abhor, they are usually not trying to be evil. Rather, we all have constructed quite complex and varied prisms through which we view the world. Through these, each of us sees our own conduct as perfectly rational and right.

Watching Tuesday's meeting reminded me of what seems a universal difficulty: being so much ourselves, seeing through our own eyes and emotional filters, we can never quite get a fix on how others perceive us.

I learned that lesson as a young lawyer. A poet, former civil rights worker, and underdog-lover, I couldn't figure out why my secretary was crying after I pointed out a mistake, until I realized (or someone explained) that she saw not the nice kid I felt like but her new, powerful boss. Potential tyrant. My words had caused fear or pain I hadn't intended or imagined.

I should have learned it earlier, when the headmaster, as he expelled me from school, said I lacked compassion. How could that be, I wondered? I was kind and friendly to the workers, though I rebelled against the autocratic masters [teachers] who seemed to misuse their power. I hadn't conceived that, as a mere student, my mischievous words might actually wound adults, who seemed all-powerful. 

Julia Brown seems (and sees herself as) a good person. She believes in justice and fairness, and has worked against discrimination. But she is also the Boss. When she wonders how employees can be afraid to bring some complaint to her, the “her” she's thinking of is the inner Julia, generally trying to do right, while the “her” the employee perceives may seem powerful, sharp-tongued, and closer to supervisors than to the supervised. The employee has heard tales – true, false, or exaggerated – of her treatment of others. The employee may also see her as part of the elite: the folks with advanced degrees, flowing English, and a certain self-assurance that can come across as a sense of entitlement.

Isabella Solis likely feels nervous, being suddenly in a position with unfamiliar rules and procedures but having to act quickly and confidently under a bright spotlight. But most citizens and employees see none of that, only the chairwoman's power. She too wants to do right, I believe.

Billy and Kiki not only can't agree, but can't even conceive of each other as sincere.

During the closed session, my wife and I take refuge in Nessa's. Sitting together in the small café (at Picacho and 2^nd), talking in between bites of Nessa's imaginative and tasty food, and gabbing with James about Valentine's Day and his delight that he and Nessa are to be parents . . . heals us.

                                              -30-

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 19 February 2017, and also on the newspaper's website (under the perhaps unfortunate title, Empathy for Others Lacking in County Drama) and KRWG-TV's website.

[The Sun-News headline should not be read to say I'm singling out the County.  Lack of understanding or empathy marks most of us in too many situations, personal, and professional; I called it a "universal difficulty"; and it's one of those problems like alcoholism, which we would do well never to claim we've eradicated in ourselves.  In fact, if we all looked in the mirror each morning and said, "I'm a biased person who doesn't try hard enough to understand others and see how they formed their points of view," the world would be a better place -- although as phrased it's too unwieldy a sentence to bother with each morning.  Also sounds too damned preachy for my taste.]

[But while I don't mean at all to single out the County, plenty of people came up to me afterward and said some version of, "Wasn't that disgraceful?"  To some degree they blamed different figures, depending on their own views and allegiances; but I met no one who was pleased by the tone or content of the meeting.  The Sun-News's editorial stance is at "County board should be more deliberate."]      

Our Sheriff Should Concentrate on the Sheriff's Office

My intense study of DASO, including interviews with most everyone I could talk to, leaves me with further questions. 

One is whether Sheriff Enrique Vigil is violating NMSA Section 29-7-6.1 requiring new sheriffs without “a certificate attesting to completion of a basic law enforcement training program” to “complete an administrative law enforcement training program” within twelve months. Vigil apparently looked into taking a course, but there's no record he completed an appropriate law-enforcement course. He may now be contending that his training as a U.S. Marshal many years ago exempts him. Is he right? Or breaking the law? I've asked the appropriate state agency for its interpretation of the statute. No answer yet.

Are the people unhappy with Vigil and Undersheriff Ken Roberts a small group of malcontents, as management suggests, or a departmental majority, as the “malcontents” assert? I can't say, but I've had exactly one person contact me to speak up for management, and quite a few on the other side. There are a lot of complaints by a lot of good current or former employees. Still, being numerous doesn't make them right.

In any case, the existence of large numbers of angry people, inside DASO, ex-DASO, or dealing with DASO, isn't a good sign. Vigil and Roberts have rightly fought for higher pay for deputies. (I applaud them for this.) It seems significant that, despite that advocacy, they are not nearly so popular as Vigil appeared to be less than a year ago seems significant.

Should Vigil (as some friends have advised him) jettison Roberts as undersheriff? Could he then turn his remaining two years as sheriff into a success? We'll see. One knowledgeable source told me recently, “the complaints I'm hearing now are mostly concerning the Undersheriff.”

Most all the top law-enforcement people are gone and/or unhappy. Vigil-Roberts has stripped DASO of experienced command staff, exposing the county to potential lawsuits and citizens to less certain protection. (See my columns January 29 and February 5 (SWAT incident), Sheriff Vigil's on February 5, and my comment on his column.)

Meanwhile, Sheriff Vigil is said to have aspirations to run more than DASO.

Vigil said that in January 2017, with a new county commission, County Manager Julia Brown would be gone quickly. (Brown says that shortly after a conversation with Vigil, she received an unsigned note warning her she'd be gone soon.)

Vigil then did a lot of politicking. He contributed to the defeats of former commissioners Wayne Hancock and Dr. David Garcia. People tell me he was of major assistance in new Commissioner Ramon Gonzalez's victory over Garcia. Vigil clearly campaigned against Hancock, whom Isabella Solis beat in the Democratic Primary. John Vasquez ran successfully for the seat vacated by Commissioner Letitia Benavidez. I don't know Solis, but she doesn't strike me as a pawn of Sheriff Vigil. Vasquez certainly strikes me as an independent person, a war veteran and a political progressive who has a strict sense of right-and-wrong and is likely to act on it. 

The holdovers are Billy Garrett (another bete noir of Vigil's) and Ben Rawson. They don't agree with each other much; but I believe they both know that the County ought to be run by the commissioners.

I've criticized Ms. Brown sometimes. More often, I've been quite impressed with her. She should stand or fall on her merits, not because Sheriff Vigil finds her presence inconvenient. (Note Vigil's winless record in lawsuits against the County.) The Commissioners should take the necessary time to figure this out themselves.

As for Sheriff Vigil, he'd do well to concentrate on the job to which we elected him.

                                                       -30-

[The above column appeared this morning in the Las Cruces Sun-News this morning, Sunday, 12 February, as well as on the newspaper's website and the KRWG-TV website.  I've since learned that at Tuesday' County Commission meeting Ms. Brown's contract will be reviewed.]

[After writing the column, I learned something further that had me shaking my head again.  I'd omitted statements that Vigil and Roberts planned to fill the higher positions within DASO with cronies from elsewhere.  It was a prediction that could prove inaccurate.  

Then a couple of days ago, someone from DASO called me.  A memo had been circulated saying that, by the way, openings for promotion to captain and major had been posted -- about ten days earlier, the previous Monday -- and would close in about ten days -- the following Friday.  They were also advertised externally.  It'll be interesting to see how that goes.]

[Undersheriff Roberts responded in today's (Sunday's) newspaper to my column last week on the SWAT incident.  (I haven't found his column on-line yet, or I'd include a link to it.)  It's well-written, and sounds good, and I wish he'd deigned to respond to me in person.  However, there are points in it I don't understand.  Several sources said eight people were on the scene.  Roberts says there were "23 available DASO staff members on the shift."  That's different.  He proclaims: "It is always easy to be a Monday morning quarterback, but those who are at the scene aren't afforded the same clarity when making critical decisions that are matters of life and death."  

I agree; but it's precisely the folks on-scene, in their written reports, who criticized Roberts (who was not on the scene).  Other current or former DASO personnel and a national expert seconded those criticisms.  I'm just sharing them with the community, after checking everything out as best I could.

Interestingly, too, the official story seemed to change a little after my first of these three DASO-related columns appeared. 

I remain, as Mr. Roberts suggests, "an ardent advocate for civil rights protections, [and] against excessive use of force or a militarized police force."  However, I am also for reasonable protection of the public and the police themselves.  A lot of people who know more than I about this subject felt that DASO didn't provide that as well as it should have on this occasion.]

[On  purely trivial note: In their responses, both Kiki and Ken start with my full name, "Peter Powers Goodman," as if they find it significant in some way, or amusing.  Which is fine.  It does sound a little funny.  My mother chose my middle name to honor one of her twin brothers, Perrin and Powers.  Powie was the more mischievous and adventurous of the two.  Soon after their service in Europe during World War II, Powie died in a car accident.  I arrived a year or two later, or maybe just a few months.  Powers himself was so named because a dozen generations earlier, 14-year-old Walter Powers had come to this country from Scotland.  In 1648, I think.  Generations with the last name Powers followed, mostly farming but also teaching, and serving in wars, down to my great-grandfather Clarence Powers, in Fort Fairfield, Maine.  Powers was my maternal grandmother's maiden name.  If any of that amuses the Sheriff and the Undersheriff, or seems relevant in rebutting my columns, they're welcome to use it as they like.  It's public information.  As to me, I don't often think about that stuff, but if I do think about it, I wear that name proudly.]

Let's Listen to Each Other!

Too many people treat politics and government like a football game.

My team is my team no matter what. So what if the tight end attacked a 90-year-old man? They're the 'Niners, man.

Politics oughtta be different. Local politics above all. We're neighbors. But some people see everything in black and white. Or red and blue. 

Someone on Facebook called Julia Brown “the worst county manager ever.” I disagreed. I've criticized her in columns, but she's smart, and I suspect she's hard-working. (I lack enough first-hand information to decide how I'd vote on extending her contract; but with the imminent change of commissioners, a three-year extension doesn't seem wise. An outgoing school board did that with Stan Rounds, which upped the cost to the public when the next board told Rounds to take a hike.)

When I replied that Brown definitely wasn't “the worst county manager ever,” someone said I was in favor of her because we both went to PVA meetings (I usually do. She was there once or twice to announce something.), and that I believed everything Billy Garrett told me.

I like and respect Billy Garrett. He's a smart guy, knows a lot about local government, and works incredibly hard as county commissioner. But I've disagreed with him strongly and publicly. 

Commissioner Ben Rawson's political views differ strongly from mine. I didn't vote for him. I'm appalled by some of what he says, and how he says it, but he appears to listen to his constituents. 

Barack Obama seems a smart and caring fellow with an astonishingly good temperament for the Presidency; but I've disagreed strongly with him on many issues, notably the Trans-Pacific Partnership, and thought he relied too much on Wall Street types for advice on repairing our economy. I like that he's tried to avoid the pitfall of prejudging every foreign-policy situation based on ideology or a personal agenda; but recognize that such an approach can slip into uncertainty and lack of direction.

We're all imperfect. We're human. I try to listen to everyone with an open mind and make up my mind based on evidence. I still get things wrong sometimes.

Of course, some politicians make this hard. Reading Steve Pearce's recent op-ed about Rick Riscoria acting heroically in the World Trade Center fifteen years ago, I thought “I actually agree with Pearce about something!” Unfortunately, he segued into a partisan and misleading rant claiming that Obama created ISIS. Does he really not remember that the Bush administration lied about Iraq to start a war – and Congresspeople on both sides of the aisle, who should have known better, went along happily? I was disappointed, but not surprised, that instead of mourning our dead, Pearce turned a solemn subject into a dishonest bit of self-promotion.

And the temper of the times disfavors thoughtfulness. If you advocate better understanding between police and the communities they serve, you're labeled a cop-hater – even if you have friends in law enforcement and work with law enforcement officers every week. (Count me as one who thought it stupid and tasteless for Hillary to say that Donald's supporters were “deplorables.” Preferring Clinton to Trump doesn't require me to agree with all she says.)

I wish the paper could print this column without my name. Maybe we should read all newspaper columns without knowing who wrote them until we've finished reading. If we read the words, and assess the words, rather than spotting someone's name and going into attack mode, maybe we'd find some middle ground.

Think of it as working together to keep the stadium from falling down on both teams.

                                                          -30-

[The column above appeared in the Las Cruces Sun-News and possibly other newspapers this morning, Sunday, 18 September, and on the newspaper's website (where someone has already advised me that I am a pathetic columnist who is destroying the county) as well as KRWG-TV's website.]

[None of the above means I don't plan to vote for Hillary Clinton, don't think Donald Trump poses a unique threat to our democracy, or don't hold to values that tend to emphasize social concerns over pure capitalism, freedom over conformity or repression, as well as candor, openness in government, and the like.  I just get uncomfortable dismissing whole groups of people, or ignoring them.  I actually believe in free speech as central to our democracy, and in free, fair, and open discussion of ideas as a way to get to truths which may not be quite what anyone thought they were before the discussion.] 

[Locally, we cannot afford to let differing political opinions become feuds.  Doesn't mean we shouldn't each fight for what we believe is right.  I sure do.  But why should someone's unappetizing beliefs blind me to the good that person does or the laughs we have in the midst of disagreeing -- or the fact that I may learn something from him or her?  That's why I found the duplicitous municipal recall effort so unfortunate.  It crossed some line between disagreeing on facts and courses and used flat-out lies and vicious tactics.  I feel the same about "attack ads" that try to win election by last-minute false and scurrilous newspaper ads.  But I still can't afford not to take my best shot at civil discourse with the people responsible for those.
I've seen a couple of recent examples of folks from different places on the political spectrum working together: after an employee in the County Clerk's Office committed crimes, Deputy City Clerk Scott Krahling reached out to Russell Allen and other Republicans to participate in a committee to look at procedures in the office and see whether additional safeguards might be usefully implemented; and a similar bipartisan committee has worked on getting out the vote.  Some of my Democratic friends understandably criticized that, but it was probably a sensible move.  In advocating a Detention Center Citizens Advisory Committee, I found that it was championed on the Commission by Billy Garrett, but Allen and other conservatives, who are generally skeptical of governments and in favor of citizens getting a look at things, also favored the creation of the committee.]




 

Further Thoughts on the County's Settlement with Chris Barela

The recent op-ed defending the County's $201,000 settlement with Detention Center Director Chris Barela was sincere and made some valid points. The County Commission genuinely feels it dodged an expensive bullet by settling with Barela. 

But questions remain.

In late 2013, it appeared that Barela had committed breaches of duty that might constitute crimes. Some were reported to authorities by a commissioner and others. Some had been reported to county management earlier, in detailed writings.

A state police investigation ensued. Too much time passed. Some say that the state police sat on it. At least one state police source suggested it was the District Attorney's fault. Eventually DASO investigated. 

Sheriff Kiki Vigil probably should have recused himself. He was already at odds with the County Manager and Commission. Two of his most generous campaign contributors ran private prisons, we later learned. (See March 2016 column.) I've learned since that Vigil articulated (and may still hold) an intention to take over the Detention Center. 

Vigil was not the ideal person to investigate Barela; and the showy arrest, and transportation of Barela to a distant county were unnecessary. 

Still, that investigation by two DASO deputies was thorough. While some of the apparently criminal conduct was time-barred and couldn't be prosecuted now, the investigation uncovered evidence of other possible violations. 

Barela is legally innocent of crimes; but we can still question his conduct and that of other public officials. 

Commissioner Billy Garrett's op-ed takes too much comfort from the grand jury's failure to indict Barela. If prosecutors felt some charges wouldn't sufficiently impress a criminal trial jury, that doesn't mean the alleged actions weren't taken. Statutes of limitations prevent criminal charges, but not administrative discipline. Further, as neither commissioners nor I sat on that grand jury, we don't know why it made certain choices, or even whether it heard all the witnesses it should have heard.

I can't make a reasoned decision on Mr. Barela's guilt unless and until I read the entire investigatory file. I won't rely on others' varying accounts of the facts.

A seasoned magistrate, who has a law degree and is not known (at least by me) to be aligned with any party in county government's civil war, signed the warrants. A seasoned and hard-working prosecutor believed this was a good case. These facts would have weakened Barela's false-arrest claim.

I know too much and too little. I know that Vigil had extraneous reasons to want Barela arrested and convicted, but did those reasons motivate the Sheriff's (mis)conduct? I know that other officials might wish to rub Vigil's nose in this mess by settling generously with Barela; but did those wishes help bring about the settlement? 

I watched the County fight tooth and nail against other employees. It offered no viable settlements to Jorge Granados or Kim Stewart. When two juries gave them ringing endorsements, the County appealed, on dubious grounds. (New Mexico Association of Counties was apparently making decisions in those cases, not the County. NMAC invoked a contractual exclusion to refuse coverage against Barela's claim, leaving the County on its own. Thus it's probably not fair to conclude that the County dealt more generously with Barela because he was one of the gang or knew where the bodies were buried.)

Did an overzealous Vigil screw this up? Did political considerations lessen prosecutorial vigor? Was embarrassing Vigil a motive for the settlement or just a happy by-product for some county officials?

I don't know. I do know that Barela is neither as evil as some detractors charge nor as guiltless as some supporters say. Most of us aren't.

                                                     -30-

[The above column appeared in the Las Cruces Sun-News and other newspapers this morning, Sunday, 11 September.  It's also up on the newspaper's website (supposed to be, anyway) and will soon be up on KRWG-TV's website.]

[September 11!  It snuck up on me this year, that this was the 15th anniversary of that terrible morning.  I was actually in the Library of Congress that morning, researching.  An underground passage away from Congress.  They told us we had to leave -- but not why.  But people knew.  As I motorcycled away from the Capitol, toward where I stayed, there was a humongous traffic jam, of course.  I was grateful for the motorcycle's small size and maneuverability.  At supper that night, we could see the smoke from the Pentagon, still.  For days, people tended to stay in their houses, and numerous military helicopters swarmed overhead.]
[The next morning I motorcycled downtown.  Almost no one was out, except police and military folks.  I had to park further from the Lincoln Memorial than usual.  Security.  But I could walk to it. It was dawn.  None of the usual tourists and joggers.  Just me and the cops and soldiers -- and this one guy, doing his job.  While everyone else was trembling at home, in fear of going down to where the bad guys might strike again, he was just doing his job:]

[I should have written about September 11th in this morning's column.  And a glance at the morning paper, in which Steve Pearce misuses the heroism of everyday people by suggesting it shows that everything is Barack Obama's fault, tells me I'll remedy that omission next Sunday.]

Another Fired County Employee Gets a Good Pay Day

We should hear soon that yet another employment case against the County has been resolved: Veronica Apodaca v. County of Dona Ana is being settled, I believe for a payment to her of $450,000.

That's a lot less than the County paid after adverse jury verdicts in Granados v DAC and Stewart v. DAC.  It clearly reflects that the county's lawyers -- or more likely the insurer, New Mexico Association of Counties, or both -- learned from those verdicts.  In the Kim Stewart case, as here, the County tried to argue that Ms. Stewart was not being retaliated against, but had screwed up in ways that hurt the County.  Jurors roundly rejected that argument.  Earlier this month, Judge Marci Beyer denied the County's motion for a new trial or reduction of the $1.5 million verdict.  The County had argued that the award of $1 million in "emotional distress" damages was "excessive, shocks the conscience, [and] without support in the record."

Losing lawyer Randy Bartell also said the award reflected "passion and prejudice" against the County.   Maybe it was, but that argument always amuses me in these cases.  The jurors were, necessarily, citizens of the County.  Voir dire was an opportunity for each side's lawyers to eliminate biased jurors -- say, someone who hated the County.  To the extent that the damage award is paid by the County, the jurors themselves will pay a little toward it.  So if there was "passion and prejudice" it arose solely from what the jurors heard in that courtroom; and it must have been strong, given their [admittedly small] pecuniary interest in a low damage award.  (In Granados, I spoke to jurors afterward, and they were incensed at the County's conduct and grateful to Jorge for making things public; and I've heard one juror embraced Ms. Stewart after that verdict.  The County, I think, tried to argue that that showed strong anti-County feelings; but if it did, those weren't a pre-trial bias, but rather a natural human reaction to news of very bad conduct by county officials.  (And perhaps irritation at, as jurors felt, being lied to.)

The same two lawyers, Daniela Labinoti and Brett Duke, represented Mr. Granados and Ms. Stewart. 

One important observation about this case is that, unlike the others, it arose solely on Julia Brown's watch.  There's no argument that this one reflected the shortcomings of any previous county manager.  This one too reflected badly on the County's HR Department, in that Plaintiff initially complained she was being discriminated against by HR, and sought a transfer to DASO.  Ms. Brown, according to allegations in the lawsuit, initially purported to be helping her, but quickly fired her.  So this one arose on Ms. Brown's watch; and if Ms. Apodaca's allegations were accurate, Ms. Brown was the major actor -- the single person most responsible for the fact that Ms. Apodaca no longer works for the County but is getting paid a bunch of money.

Interestingly, in what I thought was a truly discourteous and unwise talk to county employees, Mr. Brown responded to the Stewart verdict by speaking of employees who -- when their performance was inadequate or they'd made serious mistakes -- ginned up complaints of discrimination and harassment and retaliation to make it difficult for the County to take warranted action against them.  She could have been thinking of Ms. Apodaca's case, in the sense that the County seems to have made pretty much that argument in this lawsuit. 

That $450,000 payment doesn't prove conclusively that Ms. Brown acted improperly; it may be, as the County will say it is, a product of watching two other (in the County's view) unwarranted employee retaliation cases end badly for the County.  In the that view, jurors make mistakes and a jury in this case would have likely made a similar mistake. 

But if I were a commissioner, this would be a serious demerit for Ms. Brown.  Other employee lawsuits against her and the County are almost certainly imminent.  That doesn't mean the employees should win those, and we (and potential jurors) should keep our minds open.  

Most or all of the commissioners, to varying degrees, have been dissatisfied with Ms. Brown.  They'll undoubtedly factor this new event into their thinking.

I'll revise this post (or publish a column) once I've had a chance to reread the Complaint and Answer in this matter, and once the settlement becomes final.  I'll also keep an eye and ear open for the details of the County's appeal of the Stewart verdict. 
                                                           -30-

[Note: I sat through almost the entire Granados trial, posting nightly reports, and part of the Stewart trial, and searching those names on this blog should yield access to those if someone needs to consult them.]

Sheriffs Hire Interesting Top Assistants

I've voiced strong (and warranted) criticism of the county's Human Resources Department; but there are reasons to have HR. 

The previous sheriff hired someone with an interesting record but no law enforcement experience. Sheriff Garrison admired him. Many deputies didn't. They complained. I wrote several columns. Eventually he left, though on his way out he sued everyone in sight, including me. (A year later the nonsensical lawsuit was dismissed.)

Sheriff Vigil hired a suspended lawyer as his right-hand man. The NM Supreme Court decision upholding his suspension makes one wonder how a competent HR specialist would view the hire. (Practicing law is not among his duties.) 

The court wrote of “a deeply troubling mosaic of ethical misconduct” that included “repeatedly violat[ing] his duty of candor to the court,” “dishonesty to the Court [and] lack of candor to others” including “a false statement” to a life insurance company, and “frivolous claims.” The lawyer, Dennis Montoya, stipulated to the facts.

In one case, a man died when a tire failed. He was survived by his girlfriend, who apparently had substance-abuse problems; their son, three years old; and her daughter. Montoya allegedly ignored the son's legal rights. He told courts that the girlfriend was the decedent's widow, which wasn't true. (There was a possible argument that she might have been the man's common-law wife in Utah.) Montoya allegedly told courts that the decedent was the father of the girlfriend's daughter. A great deal of money that should have gone to the son went to the troubled mother, inappropriately. 

Meanwhile, “several federal judges in separate proceedings publicly reprimanded Montoya for numerous, well-documented ethical lapses. . . . While it is rare for even one federal judge to single out and publicly admonish an attorney, several federal judges found it necessary to reprimand” him. The violations included filing a motion as “unopposed” when he knew it was opposed; filing an Age Discrimination suit alleging his client was 40+ and refusing to dismiss the case when he learned she was just 35; “he altered deposition testimony to favor his client”; and “he brought many frivolous claims and filed many frivolous motions in the federal courts.” (I'll try to include a link to the opinion in my blog post today.)

Mr. Montoya, who was running for the Court of Appeals at the time, says the Supreme Court was politically motivated. He was running against a Richardson appointee, and nearly won. At the start of the campaign, there was one complaint, from the judge he was running against. Then many more charges came in, timed to maximize harm to his campaign. He says the charges from federal cases went back as far as six years; and he adds that while federal judges have an obligation to report ethical misconduct that should be disciplined, the judges had not previously reported these incidents.

He says he “never claimed I never made mistakes” but that the Court's action, in vetoing a settlement agreement (in which his reinstatement was automatic, rather than subject to difficult conditions) and writing such a strongly-worded opinion, was political revenge. (I've found Montoya smart, forthcoming, and cooperative.)

I'm not on either side in the civil war between the sheriff and county manager. I see right and wrong on both sides. 

I do know some excellent deputies. They should have the tools and time they need. I hope the county manager and sheriff won't lose sight of the ball because they're concentrating on squabbling, or on avenging perceived slights; and Sheriff Vigil shouldn't undermine his own credibility as an advocate for his men by creating unnecessary rancor.

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[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 6 March, and will appear shortly on KRWG-TV's website.  I invite comments -- here, on the newspaper's website, or on the KRWG site.]

[There's also a 10th Circuit U.S. Court of Appeals opinion in "an unfortunate case of poor lawyering by Mr. Montoya.  Seventy-five year old John Smith sued the City of Las Cruces.  Smith heard noises, went outside, saw a lot going on, and asked an officer if something was wrong.  No answer.  He was told instead to go back inside.  The old man mumbled, "Well that just beats me, a man is not able to find out what happens in his front yard.  (In fact, there was a suicidal man with knives on the sidewalk.) The cops battered the old man, took him to jail, , after which he went to a medical center with two sprained wrists, contusions, and a back strain.  He sued.  City officers moved for summary judgment, saying they had qualified immunity against a suit.  The opinion says Smith's lawyer, Montoya, didn't really respond, so the court granted defendants summary judgment -- "though, as the court says, that doesn't mean Smith lacked "a meritorious case.   It is to say only we will never know, because clients like Mr. Smith are usually bound by their lawyers' actions -- or, as here, inactions.  Sometimes that means good cases are lost by bad lawyers, a lamentable cost of our legal system."]

[I should stress that I'm not equating Mr. Montoya with Mr. Seeberger.  I'm a bystander, with a healthy curiosity about what will turn out to be the reason(s) Mr. Montoya was placed on Administrative Leave a while back, apparently without a clear account of why.  That seems to be the new style of the County Manager -- as if county business were military or industrial secrets such that anyone suspected of anything had to be hustled out of the building instantly and not spoken to by anyone.  I'd also question having the "investigation" done by a lawyer who represents the county in litigation.  Nothing illegal about that, so far as I know; but it'd probably not seem fair to me if I were the target of the investigation.   Too, when Ms. Brown puts people on Administrative Leave for a lengthy period, you and I pay those people's salary for the period, while getting no useful work from those people.  When she hires a law firm to investigate, we might be paying $100 or $200 per hour -- essentially, I fear, for someone to find adequate support for an action she's already decided on.  Well, it's only money.  Ours.]

[Meanwhile, is it true she's also engaged an "expert" to prove the county sheriff's office is overstaffed?  I keep meaning to send in an IPRA Request on that subject, and maybe will add one regarding the contract with the investigating lawyer, to find out how much he's being paid?  I'll also call her and try to ask her, but she doesn't always answer or call me back.]

[Meanwhile, the county's expenditure of more bad lawyer-money (I mean the money's badly spent, not that the lawyers are bad; it'd be unfair to conclude that just because they lose) trying to get the judge in the Kim Stewart case to overrule the jury's award of damages?  Unsuccessful.  Judge Marci Beyer said no last week, in a six-page opinion.  I'd characterize it as saying not only "no" but "hell, no", albeit in courtesy and appropriate legal language.  One big selling point the county's lawyers pushed was that one of the jurors had hugged Plaintiff Kim Stewart afterward.  Unfortunately, what that says to me isn't that they were pals or the juror came to the case with prejudice, but rather that the appalling conduct of county officials created a certain sympathy in jurors for someone who they felt stood up against that conduct.  I sat through almost the whole trial in the Jorge Granados case a couple of years ago, and interviewed jurors on the way out, and they were saying things that sounded a lot like the hug in this case.  They told me to thank him for standing up.  
To lead with that as a major argument why the jury award should be reduced is understandable legally but kind of amusing in a human sense.  Or just plain sad.  
I'll analyze the case in more detail in an upcoming column, and add a link to the opinion; but the three or four arguments offered by the county's outside counsel didn't look like winners when filed and don't look like winners now.  But the county -- or, more likely, the New Mexico Association of Counties -- will likely pay these or another set of lawyers to dress up those arguments for the Court of Appeals.]
 

Crazy Week in County Government Raises More Questions Than It Answers

*Should Doña Ana County jailer Chris Barela have been arrested?

Yes. I don't say Barela should be convicted. I haven't seen all the evidence; and conviction requires proof “beyond a reasonable doubt.” I have seen enough to believe he should be charged. I'd seen enough years ago. (So had county officials and the state police. Someone's inaction let the statute of limitations pass on some of Barela's alleged crimes.) 

*Will Others Be Charged? Investigators note “the investigation is ongoing,” but they also note that charging documents mentioned some other names. We know that folks including John Caldwell and eventually Julia Brown received reports on Barela's alleged misconduct and didn't have him prosecuted or, apparently, discipline him. (Did they stop some alleged misconduct?) Does that mean they've “obstructed justice” or become “accessories”? I'm not a criminal lawyer and haven't investigated fully.

*Did the Sheriff Act Prudently and Lawfully in taking over the jail? Tougher question than either side will concede.

Sheriff says yes, as a conservator of the peace under Section 4-41-2. Two supporting arguments: (1) that prisoners might riot upon hearing that their jailer was accused of misusing their money, and Barela hadn't implemented contingency planning for his absence, so that action was required for safety; and (2) jail was a crime scene, with others (perhaps including Barela's superiors) possibly involved in wrongdoing, so that not to act would be turning the jail over to suspects.

County Attorney Nelson Goodin says, “We didn't believe he had the authority” and that if Vigil felt he had to take this action he could have applied to the court, as for control of any crime scene. County also says contingency planning was in place and adequate; but a DASO source says interviews with jail personnel proved otherwise. DASO also notes the Sheriff's “team” included experienced corrections personnel, current and retired, approved by the State Director of Corrections.

*Didn't the Judge Find the Sheriff Acted Illegally? Yes and No. The County applied for an Order ex parte (with the Sheriff not represented). Judge Arrieta watered down the order, signed it, and set a December 18 hearing on whether to continue the order. Technically, he found that the County was “likely to prevail” – but without hearing the Sheriff's side. Probably no one will bother to argue December 18 because the issue will be “moot”: whether the Sheriff was right or wrong in taking over the jail temporarily will be academic. 

 

*Should County Commissioners have delayed renewing County Manager's contract after being forewarned that Barela would be arrested soon and that other arrests were possible? The vote was 4-1. 

*Did the Commissioners violate the open meetings law? Depends: was this an “emergency meeting?” Legally, an emergency requires “unforeseen circumstances that if not addressed immediately will likely result in injury or damages to persons or property or substantial financial loss to the public body.”

Certainly the situation was unforeseen. Did having DASO in charge of the jail for 48-72 hours threaten to do the requisite damage?

Goodin said “we looked at it fairly extensively” and that he was “pretty confident” they'd reached the right answer. (One commissioner was insufficiently reassured by Goodin's expression of confidence and refused to participate.) Goodin added that law requires a report to the AG within ten days, and the County will do that. 

*Why can't reasonably intelligent public officials, presumably of good will and with our interests in mind, cooperate a great deal more effectively than this? Beats me. Everyone on both sides makes very strong arguments why s/he's right; but county government still threatens to become a sideshow.

                                                                 -30-

[The above column appeared this morning, Sunday, December 13 (which would have been my mother's 95th birthday, and I wish she were hear to read the column]) in the Las Cruces Sun-News, and will appear later today on the KRWG-TV website's "Local Viewpoints" section.]

It's odd to feel, moments after sending off a column, that although everything I've written is accurate, to the best of my knowledge, the column seems decidedly more sympathetic to one side in the controversy than I feel. But that's how I felt with this one.

Why? First of all, because while I discussed a lot of issues and legal points and what-not, and faithfully reflected what some people said on each side, I didn't voice some gut feelings. One of those is that Billy Garrett and Wayne Hancock are damned good public servants. Whether I agree with them on every issue or not, they're dedicated, hard-working, open-minded, and caring – and neither is in it for the money or for his political future. Neither deserves the shit that gets hurled at him.  (In fact, both Hancock and I initially reported to law enforcement certain allegations of criminal conduct by Mr. Barela.)  I would hate to see the conflict with the Sheriff distract from their work.
Secondly, although I support DASO and agree with some of the Sheriff's complaints, and have great personal trust in some of the officers working with him, there's just an extra level of truculence in the discussions we've heard lately. Usually that kind of extra truculence means something more is going on than simply a debate about policy. One side (or both) has some hidden agenda or motive. Could be as simple as long-suppressed anger by deputies that they aren't as well paid as they feel they should be, or that they're stretched too thin in a rather vast county. Could be something more. I don't claim to know. I just smell something. Don't know what it is yet.

Third, in interviewing both sides I should have explored with Sheriff Vigil whether or not he should now recuse himself from the investigation, or should have done so. Investigating Mr. Barela is one thing. I'm unaware of any bad history between the two. The State Police didn't seem to have gotten much done, for reasons I haven't yet identified. Someone needed to carry the investigation forward. 

Maybe the same is true as to Ms. Brown and others; but there, at least arguably, Vigil shouldn't be supervising the investigation. There's been a very public history of Vigil's quarrels with Debra Weir (Human Resources), and with Ms. Brown when she jumped in on Weir's side. Now it isn't as if Sheriff Vigil were the judge in this matter, where he would obviously have no choice but to step aside. He's investigating. Maybe it's okay, because the ultimate decision on any charges would be made by D.A. Mark D'Antonio, not Sheriff Vigil. 
But although I've disagreed with Ms. Brown often enough, and my mind is surely not closed to the possibility she could have acted illegally, I'd feel more comfortable if someone were investigating her who had neither been sitting in her lap nor poisoning her coffee last week. Nothing in the foregoing should be taken as reflecting doubt on Vigil's integrity. He just ought to remove himself from having that integrity unnecessarily tested. It would look better.

At the same time, certain aspects of the Sheriff's side of this needed expression. One was that although they may be wrong, his investigators honestly and probably reasonably see other county officials as persons of interest. Another was that although I don't know whether or not whether the statute cited by the Sheriff authorized his action in taking over the jail, it was unfair to let unknowing readers assume that Judge Arrieta had acted after hearing each side make its best arguments. Rather, as Mr. Goodin readily acknowledges and most trial lawyers would know, the order was issued after only one side's story got told, and was intended as a temporary order pending a fairer and fuller examination of the facts and the law. 

Too, I'm put off by some of county management's tactics -- such as removing information officer Kelly Jamison, whom all sides agree is a great asset, from DASO temporarily -- ostensibly to prevent her from experiencing a conflict-of-interest but obviously to punish the Sheriff in a petty way.  Remind him who's boss, legally, over DASO employees.  Fortunately she's been returned to DASO.

Another observation worth making is that just as wars drown out a lot of subtle differences in people's pre-war positions on whether or not there should be a war, folks who get drawn into battles (like this current one in county government) quickly find themselves pushed toward the extremes, not only less and less able to accept opposing arguments but less and less able even to listen meaningfully to anyone “on the other side.” Inevitably that saddens us non-combatants. Not only because unnecessary friction is not conducive to a harmonious and peaceful life but because truth also tends to be an early casualty, and each side's inability even to realize the possible sincerity of opponents makes productive discussion awfully difficult.

I'm not on either side, although I have friends and people I trust on both sides. 

Detention Center Investigation Heats Up -- Years Later than it Should Have?

Internal reports suggest that Detention Center Director Chris Barela may be guilty of misuse of public funds, and perhaps of crimes.

I don't pre-judge him. I do ask why it's taken so long for us to reach this point in the investigation, In late 2013, I wrote about these matters and discussed them with law enforcement. At least one Doña Ana County Commissioner also contacted the DA. The State Police began an investigation.

In two different subpoenae, the state police sought internal reports on Barela. Then-County Counsel John Caldwell objected that the reports were protected by attorney-client privilege. By early 2014 some judge should have decided whether or not the privilege protected the documents from the subpoenae – and perhaps whether invoking that privilege was proper when we are arguably the County Counsel's real client.

Lawyers and law professors have written extensively about the question of who is a city or county attorney's client. The mayor or manager? The council or commission? The public? Some combination, depending on circumstances? These can be complex questions. The public nature of the job raises considerations and requires choices that Exxon's in-house counsel doesn't confront.

To me and to many County employees, the County administration seemed dominated by a clique of high-level administrators who watched each other's backs and valued loyalty to the clique above loyalty to the public good. It was widely believed that people the “bosses” trusted could get away with anything, while people they didn't could get fired for trivial or trumped-up reasons. Trials, including Granados (2013) and Stewart (2015), explored the situation. Two different juries heard from both sides and reached very similar conclusions: they were appalled and angered by the portrait of County administration that emerged. (The Slevin jury had something to say about Mr. Barela's management of the detention center.)

Caldwell was central to the alleged clique. Many people said, “Caldwell really runs the County.” Employees and even Commissioners complained that he intimidated them or tried to.

County Manager Julia Brown and County Counsel Nelson Goodin arrived after the events the trials concerned. But they've continued to refuse to hand over certain documents on Barela, despite grand jury subpoenae. (They've also provided some documents, including a CD with a year's worth of purchase orders.) They apparently will provide former auditor Milton Duran's report on Barela by the subpoena deadline for that.

Whoever wins the attorney-client privilege conflict, I'm wondering why we're messing around with these issues at least two years after law enforcement started investigating. Duran's audit was in 2009! (I'm told there was also an even earlier report.) County Commissioners are appalled by the delay – and by the apparent lack of oversight of the Inmate Welfare Fund. Some of these issues were finally aired in a work session Tuesday.

Barela may have committed crimes. If he did, will the statute of limitations run out because the County was stiffing the State Police and/or D.A.'s Office and no one pushed back hard enough? The report I've seen certainly points toward questionable conduct.

The State Police got two subpoenae served seeking the internal reports, but no motion to enforce those was filed. The D.A. says he referred the matter to the State Police, understood there were some problems, indicated that lawyers in his office were available to deal with those problems, then didn't hear further for quite awhile. He and DASO are definitely pushing it now. (There's certainly some intra-governmental tension: some on the investigating side call the attorney-client claim nonsense and one labeled Brown a liar.) I suspect a motion will get filed this week.

Meanwhile the State Auditor reportedly will start investigating in a few months.
                                                         -30-
[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 20 September.]


[ I wrote about part of the problem in a December 2013 column and have mentioned it elsewhere.  Issues include alleged use of Aramark employees for non-county work while they were being paid by the County, possible misuse of the inmate welfare fund, and other complaints.]

County Manager Criticizes Jury Verdict

Last week's column discussed the message sent the County Commission by the jury in Stewart v Dona Aña County. Rejecting testimony from HR Director Debra Weir and former county officials Sue Padilla and John Caldwell, the jury awarded $1.45 million to Stewart, whom Weir fired from her County position. Jurors were so appalled by the county officials' conduct that some hugged Stewart after the trial and thanked her for fighting. Stewart's lawyer stated in closing that Weir had to go.

County Manager Julia Brown's response has been somewhat graceless: she disagrees with the verdict, as she has a right to do, and has accused county-related witnesses whose testimony she didn't like of perjuring themselves. That's strong. Perjury is a crime. I tend to disagree with her. She's declined to answer questions concerning the specific evidentiary support for her contention.

I like Brown, and I'm mystified by the strength of her support for Weir, whose alleged misconduct caused or contributed to two large jury verdicts and some settlements of suits by former employees. (It's also strange that pay for folks working at HR has improved since 2011, while pay for road-workers, detention center employees, and deputy sheriffs generally hasn't.)

Meanwhile, there's an interesting battle brewing between County Sheriff Kiki Vigil, on the one hand, and Weir.

Vigil feels pretty strongly that Weir has hampered his efforts to hire deputies. He says he's short 45-48 deputies from what should be 164 (or 210, according to the most recent census).
He says several criminal justice graduates were eliminated by HR because they didn't have work experience and left that line blank on applications, and that other minor defects in applications had elicited rejections; that at a recent meeting judges asked the County Manager why hundreds of applications for jobs at the jail had been rejected; that more than 125 credible applicants for deputy sheriff positions have been turned away; and that it took a month to get job notices posted. (A judge confirmed the meeting, and had serious questions about the County Human Resources Department.)
“HR is broken,” the Sheriff told me recently. He added that HR has also sought detailed justifications from Vigil, an elected official, for personnel hires, though no ordinance or rule required such justifications.

Addressing employees regarding Stewart, Brown said witnesses had perjured themselves. Employees understood her to mean witnesses who had worked for the County or still did – and possibly a County Commissioner. She emphasized that these were her conclusions as a lawyer.

Brown, who generally speaks well, appeared to be trying to reassure employees they could come to her with discrimination/retaliation complaints. But is it reassuring to defend former high-up County officials (and Weir), who many employees (and two juries) say were guilty of discrimination/retaliation?

Brown explained that problematic employees sometimes try to avoid discipline by filing preemptive complaints of discrimination, which make it hard for managers to fire them. She spoke of such employees (Stewart?) trying to reap big pay-days by suing for discrimination/retaliation. When two juries find discrimination/retaliation, is it reassuring to label as perjurers people who testify to having seen or experienced retaliation? When others see Stewart as a straight-shooter, is it reassuring to use her case as a platform to discuss under-performing employees seeking big pay-days in court?

Clearly Brown has disappointed the County Commission. You don't spend hours discussing someone's evaluation, then call another closed meeting to continue the discussion if everything's peachy. Commissioners' veiled public comments suggest that there are many reasons for the disappointment, and that all Commissioners share it to some degree.

Presumably if they terminate her employment she won't turn to litigation.
                                       -30-
[This column appeared in the Las Cruces Sun-News this morning, Sunday, 2 August, and will appear shortly on the KRWG-TV website.]
[The County Commission met Friday in closed session.  I'm pretty sure they discussed (1) possible post-trial settlement of the Stewart matter [see below] and (2) the sources of their dissatisfaction with the County Manager and how she might improve on her performance as they perceive it.  I'd be shocked if she were fired any time soon; but I'd be even more surprised if that possibility weren't in the minds of some Commissioners, perhaps all of them.]

[Several sources complained to me about Brown's briefings concerning the Stewart verdict.  Therefore I requested copies of the tapes of the two briefings, an watched them.  Brown certainly sounds as if she really does want to reassure employees and is truly committed to rooting out discrimination and retaliation by County officials.   Unfortunately, she didn't listen to her own talk, in her mind before giving it, from the employees' perspective.  People I've talked to consider Kim Stewart a straight-shooter, and many employees have complained to me about actual or alleged misconduct by Padilla, Caldwell, Weir, and their pals.  While some of the complaints seem exaggerated, many seem to check out.  Too many.  In that context, Ms. Brown could assume a large percentage of her audience sympathizes with the verdict and with the county-related witnesses who dared speak up about discrimination or retaliation they felt they'd experienced.   If so, adding the unnecessary complaints about bad employees making up frivolous lawsuits, or about perjury, or about calculating employees seeking a big pay-day in court is bound not to play too well, and to add to employees' uncertainty about where the County Manager stands on this stuff.  
By the way, in requesting the tapes I also asked for documents supporting her statements about perjury.  (Someone had told me Brown said during her briefing that she'd seen documents proving perjury.   I didn't hear that.  She did strongly imply it, by coupling the allegations of lying witnesses with a statement that she'd seen evidence that the jury didn't get to see; but she didn't state that any specific document proved any particular witness perjured himself or herself.)  In any case, the County objected to production of any documents, on the ground of attorney-client privilege.]

[Above, I mentioned possible settlement.  Lawyers in civil cases are always open to discussions of settlement.  It's not unusual that a case will settle after judgment.  The winning side expects an appellate court to uphold the victory, but knows there's no certainty.  The losing side hopes to overturn the judgment and walk away scot-free, or at least get the appellate courts to find a sufficiently serious problem to remand the case to the local court for a new trial.   As with settlement discussions before trial, the parties bargain/bluff/negotiate.  The difference is that the winning side -- Stewart here -- has a much stronger bargaining position.  How much stronger depends on both sides' appraisal of the loser's chances on appeal, of course.
Here the County stands to pay more than $1.9 million as things stand.  That's $154,840 in lost wages, $80,163 in lost benefits, $1 million in emotional distress damages, another $154,840 because under New Mexico's Whistleblower Protection Act the lost wages get doubled, plus $123,872 to $309,680 in interest on the doubled lost wages, depending on which of two statutes is applied.  In addition, Stewart's lawyers will seek more than $400,000 in attorney fees/costs, and would be likely to get that or something close to it.  
But Stewart doesn't have the money in hand, and wouldn't get it until after a lengthy appeal process, perhaps two years -- and, theoretically, perhaps even a second trial.  Depending on the legal issues, she might even have to factor in a very slight possibility of getting nothing.
What should the County do?  I won't say, but here are some of the factors the decision-makers should consider:
1. It's more likely than not that an appeal would fail, and that the judgment would stand.
2. If the County pursued a fruitless appeal, it would pay, in addition to the $1.9 million, (a) interest on that $1.9; (b) outside appellate attorneys, who don't come cheap; and (c) Stewart's equally expensive set of appellate attorneys, along with a some further hours worked by her trial attorneys helping the appellate specialists.  In addition, the matter would get dragged out (not desirable, when it's as divisive as Ms. Brown's "briefing" demonstrates it is) and there'd be additional headlines.  Thus the County could pay hundreds of thousands of additional dollars -- and more if there were a second trial and it came out similarly.
3. If the County appealed, it would pay highly-priced appellate lawyers, expend some energy, extend the bad publicity, and perhaps end up getting the judgment amount reduced or even an appellate order throwing the case out or, much more likely, remanding it for a new and equally costly trial.  I lack sufficient information to quote odds on some form of "partial success", but getting the case tossed out is extremely unlikely.]

[One further note with regard to Ms. Brown's suggestion that there existed documentary evidence, perhaps not allowed into evidence by the trial judge, that either showed people had perjured themselves or would have changed the result at trial.  (From what I saw, it's hard to imagine a document that would have changed the result with the jury.)  When I called Brett Duke, one of Stewart's attorneys, for comment, he said that in the evidence the County had tried to get in, there was "nothing that would even come close" to doing that.   "There was nothing they did not present that would fall into that category."  He said there were other discrimination/retaliation claims he and co-councsel Daniela Labinoti might have introduced at trial; that the County's lawyers had responded by planning to introduce the EEOC response to those; and that those witnesses were never called by Plaintiffs -- but that even in the documents rebutting those additional claims there was nothing that would have shown perjury. ]

[Finally, the conflict over DASO hiring is something I want to look into further.  It troubles me because I see some basically good elected officials in conflict with each other, and wish someone could mediate.  In concept, HR is supposed to hire almost all the DASO deputies and civilian employees.  That makes sense, since DASO doesn't have an HR Department, the County HR Department theoretically has important expertise in that area, and creating a whole new HR Department at DASO would be wasteful.  But the different departments obviously need to work together better.]

County Must Face the Music Juries Hear

Two years ago I sat through a week-long trial involving Doña Ana County.

Witness after witness testified to discrimination, retaliation for reporting discrimination, or just plain meanness and bad management. Permeating the employees' testimony was an extreme and unhealthy fear that key officials could and would do whatever they wanted, without regard to fairness or legality. Other witnesses privately told me that the evidence at trial was just the tip of the iceberg.

The jury awarded $250,000 to Jorge Granados. Plus attorney fees. The jurors I interviewed were passionate that they were sending the County a message they wanted heard.

This month I sat through portions of a week-long trial involving Doña Ana County. Again witnesses testified to discrimination, retaliation for reporting discrimination, and just plain meanness. The case had been pending for four years and could have been settled years ago for $100,000 or so.

This jury awarded $1.45 million (plus attorney fees) to Kim Stewart. Afterward, jurors hugged her and thanked her. Twelve everyday people, given a sudden glimpse into how the County operated, were disgusted. They didn't believe the present and former county officials who testified. Awarding $1 million for “emotional distress” (beyond back-pay, doubled under the Whistleblower Act) sends a strong message.

Curtis Childress drew caricatures of ethnic minorities in a meeting with minority employees who complained.

Kim Stewart investigated Childress, pulling no punches, and was clearly willing to investigate other bad conduct by County officials. She was fired by HR Director Debra Weir. Earlier, then-County Attorney John Caldwell, who'd given her excellent evaluations in July, gave her quite bad ones in December, after she reported on Childress. Maybe her report on Childress was a coincidence, as the County alleged; I don't know; but twelve jurors didn't buy that argument.

Weir apparently ran HR in a way that sparked these two lawsuits and others. Chris Barela ran the jail that mistreated a prisoner so bad that another jury ordered the County to pay $20 million; and according to internal reports, he was guilty of other questionable conduct. Both are still there.

According to witnesses in the two trials, Caldwell and Weir and others did some pretty questionable things. In closing, Stewart's attorney pointed right at Weir and said she needed to go. The jury agreed.
County Commissioners did respond to the Granados verdict. There was an investigation; it became clear that the interim county manager was unlikely to be hired as the permanent manager; and they brought in County Manager Julia Brown. Caldwell left. HSSD Director Silvia Sierra left.

But someone at the County was too arrogant to settle the Stewart case when it could have been settled fairly cheaply. Someone supposed that the failed strategy from Granados – earnest testimony by high county officials and efforts to convince the judge to take parts of the case away from the jury on technicalities – would somehow prevail this time.

But Jorge Granados was not my enemy, or yours. Kim Stewart was not my enemy, or yours. Kim seems to be only the enemy of folks who would provide us a lousy county government. Our agents mistreated both of them. When they sued, maybe we could have gotten off on legal technicalities; but I wish we'd reached reasonable settlements, rather than paying outside counsel a bunch of money to fight them, then paying big judgments (and plaintiffs' attorney fees) anyway.

It's troubling to hear Julia Brown respond that witnesses perjured themselves and Stewart was just a vindictive malcontent. She wasn't around when these things happened. Maybe she should look a little deeper. Two juries and a former investigator shouldn't be dismissed lightly.
                                              -30-
 [The column above appeared in the Las Cruces Sun-News this morning, Sunday, 27 July, and will appear on the KRWG-TV website shortly.]

[Please feel free to review my initial post on the jury verdict in Kim Stewart's case, the Sun-News report on the Stewart verdict,  and/or my several posts reporting daily on the Granados trial  -- or search this blog for "John Caldwell" or "Debra Weir" for additional information.  Searching Jorge Granados yields all the columns/blogs regarding his trial, but they're not in order.]

[To the column as written I'd add a couple of points: (1) that I've met Kim Stewart and judge her to be pretty much of a straight,shooter, as people go; (2) that I have a bit of a bias in favor of juries; and (3) that  legal scholars and lawyers have recognized that a city counsel or county attorney may have a slightly more complex ethical position, and slightly different duties, compared with someone representing an individual or a private company.
That is, (1) to the extent that I've talked to Kim, (a) when I've asked her a question that could be answered in one way that helps her point-of-view on something or in another that's more truthful but less helpful to herself, I've seen her pick the more truthful answer; and (b) where there's independent evidence, it has tended to support what she says.
(2) Despite widespread criticism of the system, I believe juries tend to stumble into a correct result much more often than not.  (Disclaimer: the fact that when I practiced law in San Franscisco we handled quite a few big jury trials without losing one might have created this bias in me.)  I understand objections that the jurors don't see ALL the evidence because of the rules of evidence, that they can be swayed by the personalities of lawyers, and that in complex business litigation, particularly involving science and technology, they can't possibly understand all the issues.  Nevertheless, they seem to find what I might call the human truth.   Here, that means that whichever side should have won on certain legal issues in Granados or Stewart, Jorge and Kim probably did get screwed in a way they ought to be compensated by and the actors within the County ought to be punished for.  (By expressing doubt I do not mean to agree with the County lawyers that Judge Arrieta or Judge Beyer made errors, but only to say that even if that were technically true, the two juries seem to have come to the right results.  From what I saw, Judge Beyers did a fine and fair job.) Of course, what I may think or Julia Brown may think doesn't matter: the juries found what they found.
(3) Ethics are easy when you represent someone who got bitten by a dog or hit by a car, or a criminal defendant, or a company litigating an alleged breach-of-contract: you do the best you can for your client, within certain constraints such as not lying to the court or destroying harmful documents or helping your client commit a crime.  In theory, the clash of two such advocates on opposite sides produces a wonderful opportunity for the judge or the jury to see the actual truth, which may differ from either side's position.
But when your client is a county?  Do you represent the county?  The County Manager?  The Commissioners?  The insurer?  The people of the county? The in-house county attorney?  Or all of them?    What if a County Manager or County Counsel is so clearly implicated in the alleged wrongdoing that s/he may lack an objective view of the case or choose to ignore what's right for the county that employs him or her?  Do you still follow the Manager's or Counsel's instructions?  
These can be difficult questions to answer satisfactorily, theoretically or in practice.  Their relevance is that in closely observing a couple of county cases, and reviewing some others more casually, I'm seeing some questionable decisions get made.  By whom I can't say for sure.]