2018 Primary -- VOTE TUESDAY!!

I voted Friday. 

In the county sheriff primary, I wish incumbent Kiki Vigil had only one challenger. Having talked to deputies and watched the department deteriorate, I hope Kiki – for whom I voted in 2014 – loses. With name recognition and four challengers, he probably won't; but Eddie Lerma and Kim Stewart, two very different candidates, offer the best chances. Lerma has extensive local law-enforcement experience, and law-enforcement endorsements, while Stewart offers new ideas and extensive law-enforcement experience elsewhere. 

Last-minute information strengthened my preference for Steve Fischmann in the PRC race, despite annoying ads from both sides. We have a clear choice between a public-interest candidate (Fischmann) who'll fight for a fair shake from the utilities and for faster progress toward renewables at fair prices, and current PRC Chair Sandy Jones. Jones seems too close to regulated utilities. He complains that environmental groups concerned about climate change are backing Fischmann; but Jones is getting huge backing from companies that benefit from his decisions. PNM, a major utility he regulates, dropped $440,000 this month on a PAC that's been inundating us with misleading mailers against Fischmann. Officially, Jones has no connection with “New Mexicans for Progress.” But a PRC source has described seeing top PNM officials visiting with Jones in his office before meetings. Judging from Jones's mailer attacking Merrie Lee Soules the Saturday before the 2014 primary, expect a similarly misleading attack on Fischmann.

I voted for Xochitl Torres-Small for Congress – with great delight. I'll strongly support either Democrat against any of the Republicans; but I know and trust Xochitl. Years ago I thought she'd be a great candidate for this seat. 

Nothing against Mad Hildebrandt. However, recently, she seems to be on the attack over Democratic Congressional Campaign Committee (DCCC) interest in Xochitl.  Instead of attacking Xochi because the DCCC sees in her what a lot of us see, Mad should focus on issues and how Dems take back this seat. DCCC apparently has not contributed money during the primary.  Almost all of the "Top Donors" to Mad's campaign, as listed on the Secretary of State's website, are out-of-staters, mostly in tech. [Note: this paragraph was changed as a result of my further review of it, sparked by a complaint from Mad.  The paragraph apparently overstated the amount of her out-of-state support, for which I apologize.]

Land Commissioner is a far more important job than folks realize. Garrett VeneKlasen and Stephanie Garcia Richard are viable candidates, the former the favorite of environmental groups. George Muñoz, who voted against banning coyote-killing contests, doesn't deserve our votes. He's raging at conservation groups now, calling them “special-interest groups” because their concern about our environment makes them leery of him. 

I voted for Bill McCamley, a dream candidate for state auditor. I voted for Billy Garrett for Lieutenant-Governor because he's the real deal. Deputy County Assessor Paul Ponce has learned the job in eight years as deputy, and deserves our votes. I voted for Micaela Lara Cadeña for State Rep. I recommend Karen Trujillo, who seems likely to be a thoughtful, responsive, and responsible commissioner for District 5. (Delighted so many capable young women running!) 

Many great folks have worked hard. Please vote – thoughtfully.

                                                -30-

[The column above appeared this morning, Sunday, 3 June 2018, in  the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website.  A spoken version will be aired on KRWG and on KTAL-LP, 101.5 FM during the week.]

[Do want to emphasize appreciation for all local candidates, who ran good races.  A lot of votes were tough decisions between or among good candidates.  And from what I saw, a lot of the races were run in a positive way, with each candidate mostly promoting himself or herself, and her or his ideas and positions, rather than attacking each other.  (The PRC race was an unseemly exception.)]

[With regard to the PRC: as I mentioned in the column, Mr. Jones is not legally permitted to coordinate activities with the PNM PAC, and we should presume he's not breaking the law.  However, the very size, nature, and timing of the donations are extremely telling.  For PNM to contribute $440,000 in two weeks' time is unusual -- unprecedented, so far as I can tell -- which means PNM really cares about this one.  (The money is also going to support another PRC incumbent up north against challenger Janine Yazzi.)  PNM would stand to make millions of dollars more in the next few years under a Jones-led PRC than a PRC with Fischmann on it.  
I discuss the PNM funding of New Mexicans for Progress, and include some PNM documents, in a post from yesterday, Saturday.  [To reach that material, either page down or click here. ]

[Should note that just as PNM jumped on the scales in the PRC race, two big oil-and-gas companies jumped into the Land Commissioner race to support Muñoz.  There too, conservationists have been supporting Garrett VeneKlasen or Stephanie Garcia-Richard.  It'll be interesting to see how the industries' huge media show will affect the voting.   (Thanks again, Citizens United!)]

A Glimpse into Sheriff Vigil's Response to Sexual Harassment Allegations

Last October 25, a woman told three DASO Deputies that then-Undersheriff Ken Roberts wouldn't leave her alone: he constantly texted her, even on weekends, often very personal messages. At work he acted possessive. He steered her into meetings with his hand on the small of her back and became angry if she chatted with someone else. 

“Crying and shaking,” she said she feared not responding to his weekend texts because he'd load her up with extra work on Monday morning.

Later another victim told them Roberts entered her office, closed her door, spun her chair around, and sat on her lap, uninvited. “Grinding his butt into her.” (That's a crime, battery. Maybe also false imprisonment.)

As required, the deputies reported these complaints to HR.

The three also spoke to Sheriff Enrique “Kiki” Vigil – and recorded that discussion. 

They explain that they couldn't talk to him immediately because he was away, then, when he returned, Roberts was there, and they were “afraid” to talk to him. So they arranged to meet far off-site. 

Vigil initially cross-examines the men about how they happened to go into the woman's office. Just past five, there was something they wanted to see in the parking lot, so they stepped across the hall to her office to look out the window. She then told them her story, upset that others in the office thought she and Roberts were having an affair. “Why did it take three of you?” Vigil asks. “I think that's strange.”

He scoffs at the complaints. “C'mon, bullshit! You get angry, you right away take action.” The woman had immediately told her lieutenant, who told her to document things. Later, Vigil repeats, “These are serious allegations” and says the victim should take a lie-detector test and explain why she didn't complain immediately.

Vigil's skepticism is telling: he ain't heard nothin' women have been saying about sexual harassment this year. Roberts is her boss; the whole county knows Vigil thinks Roberts can do no wrong. Roberts is a white male, with a gun. He embarrasses her in the office and loads her down with extra work when she doesn't respond adequately to his off-duty texts. “You get angry, you right away take action,” Mr. Vigil proclaims. Sometimes folks can't. Or feel they can't, because of an unreceptive or vindictive boss. 

Eventually Vigil says that there's an investigation in progress, by an outside investigator hired through the legal department. He also says, “I'll tell you what. These are serious allegations. If they're unfounded, these folks are going to pay for it.” He says twice that he's “not afraid to axe [the women].”

In Vigil's defense, false and malicious allegations would warrant punishment; but he already knows enough to put a reasonable man on notice that there's a reasonable likelihood there's some truth to them. 

Vigil's reaction tends to explain why the unidentified deputies felt the need to meet offsite and tape their conversation with him. 

Vigil says of Roberts's alleged conduct, “That's criminal.” I agree; but if he recognized that, then why, once the investigation sustained charges, did Vigil give Roberts a light slap on the wrist? Isn't criminal conduct against a county employee on county property a firing offense? A storm of outrage reminded Mr. Vigil that it was.

The deputies' fears, Vigil's resistance, and his willingness to tolerate Roberts's misconduct – all symptomize an ailing department that needs new leadership.

                                                    -30-

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 6 May 2018, and also on the newspaper's website and on KRWG's website; and a spoken version will air during the week on KRWG and on KTAL-LP 101.5 FM (or stream at www.lccommunityradio.org.)]

 [Whoever the deputies were who recorded the sheriff, and whatever their reasons, the County did the right thing by providing the recording.  It's of public interest and potentially useful for members of the public in evaluating their public officials.  It's the kind of document IPRA requires produced, even if it might be a bit embarrassing.  Today I'll provide copies to media that have asked for them.]

[I should note for the record that I tried repeatedly to reach Sheriff Vigil in recent weeks, but was unable to get him to respond in any fashion -- let alone tell his story.  However, county citizens should be aware that this coming Tuesday (8 May) the Dona Ana County Commission will (a) hear a presentation by Vigil concerning Stonegarden  and the extent to which DASO deputies enforce federal immigration laws against people who've broken no state laws and pose no apparent public danger and (b) consider a motion to terminate the Stonegarden grant because DASO appears to have repeatedly violated county policy.  As I understand it, the presentation will occur fairly close to consideration of the motion, so that although there's normally no public comment allowed on presentations, members of the public will be able to comment on the issues, and on Vigil's remarks, when the action item comes up a few minutes later.]

[I'd intended to insert a couple of clips from the audiotape, but haven't yet managed to.  Listening again to it, I realize the conversation must have occurred in early- to mid-November, because one of the deputies at one point refers to the October 25 conversation as "a couple of weeks ago."  I also noted that one of the other deputies inserts, "I would almost say scared" when the first deputy is describing the victim's manner when she initiated that conversation.  What also stands out is that although Sheriff Vigil (who already knows there's an independent investigation in progress) is most intent on questioning the three deputies about why all three of them happened to be hearing the story from the first victim.  He sounds angry at the victims, though he does mention that if the allegations are sustained Roberts will be dealt with.]     

[I should also note, regarding  last week's column on DASO's participation in enforcing federal immigration laws, despite county policy against such participation, (a) the County Commission has scheduled discussion of a resolution to terminate the Stonegarden grant contract that facilitated that conduct, (b) also on the agenda shortly ahead of that discussion is a "Presentation" by Sheriff Vigil on the subject, and (c) Ben -- I mean, Sheriff Vigil has written a commentary ("arrest reports are misleading") on that column, which appears in the Sun-News today.  Here's a link to the County Commission's agenda.  
For various reasons, including redactions, those "After Action Reports" aren't thoroughly clear.  I'll agree with Sheriff Vigil on that -- and it's why I repeatedly urged him to talk with me on the subject.  But a couple of things are clear: that DASO had involvement, as I said, in a lot of enforcement of federal immigration laws; that in most of those reports it isn't perfectly clear what DASO's exact role was; that in a few, drugs are mentioned, but that there's no mention of drugs or reasonable suspicion of drugs (or guns) in the vast majority; and that in a few, where the accounts are more detailed, it's clear that DASO did turn people over to the feds merely for being here, with no indication drugs were found or suspected.  Further, others sources within DASO say that DASO does turn people over to the feds.
So, Tuesday morning's County Commission meeting should be interesting.]

 

Does DASO Enforce U.S. Immigration Laws?

I like Sheriff Kiki Vigil's talk. I wish he walked that talk.

US AG Jeff Sessions (l) and a proud DAC Sheriff Kiki Vigil (r)

He recently wrote, “It is the federal government’s responsibility to enforce the immigration laws and not the duty or responsibility of the local governmental agencies. . . I don’t want undocumented immigrants to be victims of crime and unscrupulous exploitation. If local law enforcement becomes immigration agents, it will discourage this community from reporting crime, and they will in fact be targeted and preyed upon, as I have seen this happen in the past.”

Well said. Consistent with what many savvy law enforcement officials say: becoming a tool of Border Patrol scares off crime victims from reporting rapes or other violent crimes.

But not well done! Department records indicate that during Vigil's time in office DASO has turned over to the Feds, or otherwise helped the Feds incarcerate, perhaps a thousand people who committed no state crime.

One DASO report lists 518 “CBP referrals” during the October 2016 to September 2017 period. “After Action Reports” from that period show that there were more than 600 people whom DASO reported to Border Patrol, helped Border Patrol apprehend, or otherwise assisted the Feds to arrest and incarcerate. For the 600, reports mention no state crimes. I didn't count the handful of others who were reportedly bringing in drugs or smuggling undocumented humans. In the six months since, there were another 195 “CBP referrals” – with only six arrests. The vast majority were not carrying drugs for sale. 

Border Patrol is doing its job. Whether one agrees or disagrees with its job description. 

Some would argue DASO should do that job too. But Sheriff Vigil doesn't. He articulates why he shouldn't enforce federal immigration laws – even while he apparently does that repeatedly. Six hundred people last year – many in little groups of two or three, crossing the border, without drugs or firearms or any apparent intent to break New Mexico's laws.

Roberts and Vigil (Sun-News)

Unless there's some mistake, some of his recent statements seem so inconsistent with the facts that they sound like lies. I've tried to get Sheriff Vigil to state his view of these facts, or correct mine. But, as for awhile now, he hasn't responded to me. So far, at least.

Last September, to obtain county commission approval of Stonegarden grants, Undersheriff Roberts and another officer promised the county commission that those grants would not require DASO to enforce immigration laws, but would be used for drugs and gunrunning. When I called Commissioner Garrett, he noted that Vigil's recent column tracked county policy. I asked whether Stonegarden meant enforcing Federal law. Garrett said, “They were not supposed to be using Stonegarden for enforcement of immigration laws, and I've asked every time it came up.” 

Video of that county commission meeting seems to show Roberts flatly misleading the Commission to get the grant approved. Commissioner John Vasquez asks what happens if a deputy, who's working overtime on Stonegarden money and has intel that someone is running drugs up in Hatch, stops the car and determines there are no drugs but the driver is here illegally. Roberts reassures him that if there were no state crimes, “We'd have to go back to our policy, that we don't enforce the immigration laws. . . They would be released.” How's that square with hunting down hundreds of families without papers for Border Patrol?

I hope Sheriff Vigil answers to someone about all this.

                                                          -30-

[The column above appeared this morning, Sunday, 29 April 2018, in the Las Cruces Sun-News, as well as on the newspaper's website and on KRWG's website.  A spoken version will air on KRWG and KTAL (101.5 FM) during the week.]

[Although I'd heard the facts discussed above, I was actually startled by the starkness of the contrast between what Mr. Vigil says and what DASO under his direction actually does.  I kept looking for some mistake.  And of course sought an explanation from the Department.  None was forthcoming, although I asked by phone-messages and email.  And knowledgeable sources confirmed, "Yeah, it's as self-contradictory as it looks."  By the way, the language I quoted at the start of the column came from Kiki's recent op-ed in the Sun-News trying to explain away Jeff Sessions's visit.]


[My memories of the September 26 Commission meeting were dim, but watching the video (starting about three hours in, at about noon that day) substantiated that Undersheriff Roberts and Sgt. Ben Casillas had stated pretty strongly, several times, that if the Commission approved the Stonegarden grant, despite concerns voiced that under the current political administration the Border Patrol would push DASO to enforce immigration laws, DASO would stick to County policy.  
Having just reviewed scores of "After Action Reports" and looked at the totals, with such extremely minimal reference in those reports to drugs, guns, or other crimes, it was really kind of sad to listen to DASO's reassurances to the County Commission.  Commissioners expressed concern that the current political climate might lead Border Patrol to ask DASO to help enforce immigration laws, despite the county policy; DASO representatives repeatedly said not only that they'd not do that but that the Border Patrol wouldn't ask them to!  Frankly, watching the video and reading the documents, one right after the other, was pretty appalling.
Stonegarden was No. 13 on the Agenda: "13. Accept and Approve Stonegarden 2016 Grant Award (EMW-2016-SS-00105) from the New Mexico Department on Homeland Security and Emergency Management Sub-Grant Agreement No. EMW-2016-SS-00105", and it's easy to watch the discussion.  (To watch video of any County meeting, go to this spot on the county's website, then press the link for commission meetings, which will take you to a page where you need to press "View Meeting" for September 26, 2017.   Then move to about 12 noon, about three hours into the meeting.]
 
[Thursday evening at a Union meeting Sheriff Vigil repeated that the only participation DASO has in Stonegarden is to stop drug traffickers and provide humanitarian aid to people stranded by coyotes!
That same evening I was reading the "After Action Reports," including one in which, during the annual Good Friday pilgrimage at Mount Cristo Rey, where there were about 3,000 pilgrims, "two individuals were seen entering the US and walking across the desert area.  The two individuals walked straight up to the exact location where we were at.  Seeing how they were extremely tired and had no water on them at all, the were provided with cold water.  The individuals were escorted down to the base of the mountain and Border Patrol Agents took custody of them."   Friday morning one of the men involved in all this confirmed that if deputies stop a car, and the people inside aren't violating law or dangerous, that's supposed to be the end of things, without any call to Border Patrol or holding the people until a Border Patrol agent can get there to take custody of them; but at DASO, the standard procedure is to call Border Patrol and turn the people over to Border Patrol.  Ain't what Kiki said.]



[With a potentially controversial column like this, I feel uncomfortable not getting the subject to confirm or deny the facts, or offer some explanation.  So my mind tries to work out ways I could be wrong here.
Q:  Were all these "After Action Reports" really about hunting down people suspected of gun-running or drug-smuggling, even if there ultimately turned out to be no guns or drugs?
A: Highly unlikely.  Since a few reports, which I didn't include in my count, mention such "intel" or mention confiscation of drugs, it seems unlikely the others would omit such information if it were there -- and, among many examples, a man and small child traveling alone (captured   ) would seem unlikely to be running guns.
Q:Well, maybe they only meant to promise not to participate in massive raids in communities.
A: That's not what they said, and not what the County policy says.  They told the County Commission, "We will not enforce immigration laws, and the Border Patrol won't ask us to violate county policy, although if there's a large group of people traveling together, some carrying a back-pack full of drugs, others who had no drugs and were only paperless might get swept up in that." 
Q: Well, not all the Reports are specific concerning DASO's role in arresting people without papers, so maybe they could argue that they only pointed people out, or rounded them up without "arresting" them or asking their citizenship, and just turned them over to Border Patrol.
A: The flat promise, repeatedly, was not to enforce immigration laws against people who'd committed no state crimes but were here illegally.  Whatever role DASO played in specific apprehensions -- and in at least some "we" [meaning DASO] took someone into custody -- it was deeply involved in helping to enforce immigration laws.]

[Also, as I mention in the column, people can and do take the position that DASO should enforce Federal Immigration laws.  I disagree.  Vigil himself articulates some of the reasons many good law-enforcement leaders in the Southwest feel local law-enforcement should generally stick to local laws.  And that's obviously county policy here. I understand that terrorists or gun-runners could be out there (though a year's "After Action Reports" don't seem to feature them), and having DASO supplement Border Patrol might make sense, if DASO stuck to dealing with those problems and drug-trafficking.  My particular concern is the vast gulf between what Mr. Vigil keeps saying and what his department does.  That's not good with any public official.]
 
[I sought these records through the Inspection of Public Records Act process.  Tthe system worked, and the documents, which were not subject to any IPRA exception, were produced -- with redaction of some information, such as precise locations patrolled.  (There was another interesting document I haven't yet received, but will discuss with County Counsel next week.)  Apologies to county staff who had to spend time on the redactions -- I know what a pain that can be -- and kudos to the county who followed the law, which public agencies do not always do.]

[6 May Note: 

[I should also note: (a) the County Commission has scheduled discussion of a resolution to terminate the Stonegarden grant contract that facilitated that conduct, (b) also on the agenda shortly ahead of that discussion is a "Presentation" by Sheriff Vigil on the subject, and (c) Ben -- I mean, Sheriff Vigil has written a commentary ("arrest reports are misleading") on that column, which appears in the Sun-News today.  Here's a link to the County Commission's agenda.  
For various reasons, including redactions, those "After Action Reports" aren't thoroughly clear.  I'll agree with Sheriff Vigil on that -- and it's why I repeatedly urged him to talk with me on the subject.  But a couple of things are clear: that DASO had involvement, as I said, in a lot of enforcement of federal immigration laws; that in most of those reports it isn't perfectly clear what DASO's exact role was; that in a few, drugs are mentioned, but that there's no mention of drugs or  reasonable suspicion of drugs (or guns) in the vast majority; and that in a few, where the accounts are more detailed, it's clear that DASO did turn people over to the feds merely for being here, with no indication drugs were found or suspected.  Further, others sources within DASO say that DASO does turn people over to the feds.
So, Tuesday morning's County Commission meeting should be interesting.]

-- 

peter goodman

575-521-0424 / 510-282-6690

Views from Soledad Canyon (blog)

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.]

Dona Ana County SWAT Team Undermined by Unusual Ground Rules

Internal reports and other sources charge that Undersheriff Ken Roberts endangered lives by limiting a SWAT team's tactics January 18^th. “That undersheriff is going to get someone killed,” one said.” Several said SWAT team members were “furious.”

A dangerous armed fugitive, Sergio Ayala, wanted for aggravated assault with a deadly weapon, was inside a house in Vado. A judge issued a search warrant. Deputies suggested calling out the SWAT Team.

Roberts limited the team to eight deputies and limited tactics. Internal reports criticize these decisions. “We as a team failed to serve the public and place their safety above that of a wanted violent felon,” concludes one.

An “After Action Report” by the SWAT Team commander, dated after criticism surfaced, alleges deputies were uncertain Ayala was in the house; but according to supplemental reports and a sworn statement to a Judge, who “COMMANDED” them to search the place and seize Ayala if they could, they were certain.

The commander's initial “Incident Supplement” had noted that a female witness who'd confirmed Ayala was inside “changed her story” and said that “Mr. Ayala ran outside through the front door” at a time when deputies “had containment on the residence and nobody ran out of the front door.”

I'm no expert. Because local officers can't talk on the record, or might be biased, I consulted a top national expert, NM court-recognized Don Whitson. Normally, DASO follows National Tactical Officers Association guidelines. [See the NTOA website]

Whitson said that generally, sending just eight people when more are available is “outrageous and patently unsafe,” as is ignoring “life-saving tools they are trained on.” Except in very limited circumstances, twenty is standard. SWAT situations involve too many different roles, tasks, and contingencies.

Roberts let the team toss in a “throw-phone” to facilitate negotiations. Ayala didn't pick it up and ignored orders to come out. The team spent seven hours there. “The community was held in virtual lockdown.” Roberts stuck by his limitations. He reportedly gave “specific orders not to cause any property damage and restricted the team of what tools could or could not be used.” Eventually the team left, unhappy to leave Ayala at large.

Using progressive tactics saves lives – of officers, neighbors, and even suspects. If the suspect ignores throw-phones and verbal commands, robots can be sent in, locating the suspect without endangering officers. Police can explode a “flash-bang diversionary device,” creating a humongous noise and a blinding light. They can create a “tactical dilemma” by exploding the FBDD out front while breaching a door in the back. That confuses the suspect and says, “we have what we need to bring you out, preferably without injuring you.” Tear-gas can be tossed in. Windows can be broken, helping locate the suspect without unnecessary risk. Eventually, a force can enter the house and find the suspect.

Whitson said that in all his years of litigation consulting, he's “never heard a reasonable explanation” for ignoring standard steps. He added that had someone been injured under these circumstances, he'd have no hesitation saying that the commander would be fully liable.

I tried to ask Roberts why. So far, no response.

A State Police SWAT team captured Ayala in Anthony a week later. A team member said, “Just as we were making our approach he went mobile in a vehicle. There was a short pursuit, and then a very short foot pursuit, and he was taken into custody without incident.”

I asked how many men they'd taken. He answered 22. I noted that the DASO Undersheriff had authorized only eight. “It's hard to do the job with only eight people,” he replied.

In that week, Ayala allegedly committed additional crimes, including forcible imprisonment. He didn't shoot or kill anyone, so far as we know; but he could have.

                                                                -30-

        

[This column appeared in the Las Cruces Sun-News this morning, Sunday, 5 February 2017, as well as on the newspaper's website and KRWG-TV's.  I invite comments and criticism -- and contacts from others at DASO who agree or disagree with anything I've written in this column or the initial column in the series, Problems Again at Dona Ana County's Sheriff's Department.  I'm interested in hearing from everyone with knowledge and from folks with a wide variety of opinions.] 

[Sadly, Sheriff Enrique Vigil and Undersheriff Ken Roberts have declined to answer any of my questions on these matters.  Vigil has, however, penned a rebuttal to last week's column, and it appears near my column in today's Sun-News.  I urge interested citizens to read it.  I'll respond in a blog post within the next couple of days, but not in a Sun-News column. For now, I'll just note that it isn't Sheriff Vigil against me:  I agree with the Sheriff on many things, including better pay for DASO law-enforcement folks, some de-emphasis of traffic citations, and certainly getting rid of quotas; but if what I'm hearing about his cronyism and favoritism has any merit, as it appears to, we differ on that.  

Really, it's Sheriff Vigil and Undersheriff Vigil against some number of present and former DASO law-enforcement personnel.  It seems to be fairly widespread, but Vigil and Roberts would say it's a few malcontents or people who weren't performing well. Many of those complain mostly of Roberts, and believe that if they could talk to the Sheriff he'd do the right thing; "I'm hearing complaints mostly about the Undersheriff now, not the Sheriff," said one source; and there's a believe that Vigil could still save his tenure by jettisoning Roberts; but some things preceded Roberts and/or could not have been ordered by him.]

[Apparently Roberts was briefly on the SWAT Team a while back. He reportedly couldn't meet physical standards. Leader Armando Gonzales warned then removed Roberts. That's common sense. If the physical standards require someone to get over four six-foot fences in 20 seconds, Roberts could endanger his partner. If the partner gets there on time, s/he arrives alone. 

Interestingly, when Roberts became Undersheriff, Gonzales, who'd been running the training department well, was banished to patrol, for reasons unclear. Gonzales retired.]

[For those particularly interested in the SWAT standards and policies, the National Tactical Officers' Association standards and a study on them are available at https://ntoa.org/
One of the more interesting results of a study done by or for the NTOA is that agencies with SWAT teams indicate that they are eight times more likely to use less-lethal solutions than lethal force when they call out the SWAT Team.  That is, without the SWAT Team callout, police are eight times more likely to use lethal force.  Presumably a large and well-trained SWAT Team, using the kinds of progressive tactics recommended by the experts, intimidates a suspect into surrendering or has the capacity to locate then disable and/or capture the suspect without using lethal force.
Also of interest is Mr. Whitson's website.]

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.]

 

Sheriff's First Amendment Lawsuit Bites the Dust -- as Predicted

Friday the 13^th proved unlucky for Doña Ana County Sheriff Kiki Vigil, when the U.S. District dismissed in its entirety his “free speech” lawsuit against County Commissioners Billy Garrett and Wayne Hancock.

U.S. District Judge Kenneth Gonzales dismissed the suit on a Motion to Dismiss, which amounts to saying that even if he assumed the truth of everything the Sheriff alleged in his complaint, there was no viable lawsuit here.

A key issue was the Complaint's failure to allege a “clearly established” constitutional right.

Vigil had alleged that after he spoke up about various issues, the Commission retaliated by removing him from the dais at meetings and ordering an ethics investigation of him. He claimed that violated his constitutional right to free speech.

Unfortunately (as we wrote soon after this turkey of a lawsuit first gobbled its way into court) the defendants, as county officials, have qualified immunity, and the sheriff would have had to plead that a “well-established” constitutional right was violated. First Amendment free speech is well-established; but there's a significant question as to whether a county official can claim that right regarding exercise of speech related to his county duties. Neither the U.S. Supreme Court nor the 10th Circuit Court of Appeal has decided that issue. (New Mexico is in the 10^th Circuit.) A very persuasive 3rd Circuit case had decided there was no such protection, while a 5^th Circuit case had decided there was. Under those circumstances, no one could reasonably allege that the right was “well-established.”

Vigil had alleged four counts: (1) retaliation for exercise of free speech rights; (2) a request for an injunction against such retaliation; (3) punitive damages; and (4) a declaratory judgment under New Mexico law. The Court dismissed the first three, with prejudice (meaning they can't be re-filed) and declined to take federal jurisdiction over the state declaratory judgment issue.

As noted, on an early motion to dismiss, the court is required to accept as true “all well-pleaded allegations.” Even so, there was nothing here. For example, punitive damages are applied in connection with a substantive cause of action, but there's no independent count for punitive damages.

The Court also rejected Vigil's request to amend his complaint to add another claim and add County Manager Julia Brown and County Counsel Nelson Goodin as defendants.

The Court ruled that although Vigil had the right to amend, any amendment would be “futile” and could therefore be rejected immediately. 

Vigil sought to add further claims of retaliation as well as a claim that by refusing to pay for the Sheriff's private lawyer in a case brought against him by the County, the County and the New Mexico Association of Counties had violated his rights; but the court pointed out that “as Defendants Garrett and Hancock correctly observe, it is well-established that a party to a civil proceeding does not have a constitutional right to legal counsel. Accordingly the individual Defendants have not violated a constitutional right to access the courts.” Thus, the court said, allowing Vigil to add such a claim would be “futile.”

Whatever the merits of some of the political issues involved, this lawsuit was an obvious waste of time when filed. Fortunately for us taxpayers, District Judge Gonzales acted promptly and decisively to toss it out. 

Asked for comment, Commissioner Hancock said he was “immensely relieved,” adding: “It's just further evidence of how out of touch the Sheriff really is.” 

Sheriff Vigil is traveling out of state (and let me reiterate congratulations on his son's graduation from law school) and couldn't be reached immediately, but I've left messages for him.

As I wrote in my December 6 column "The Sheriff's Lawsuit is the Wrong Answer to some Serious Questions", “Vigil's responsive lawsuit strikes me as nonsense.” Not only was the issue of a public officials right to constitutional free-speech protection up in the air, Vigil (who would have been laughed at by voters if he claimed getting removed from the dais had intimidated him from speaking up) alleged a pretty hypothetical sort of “damage.”

[This post is also up on the KRWG-TV website and will also appear on the Las Cruces Sun-News website today.  Note: the December 6 column  ("The Sheriff's Lawsuit Is the Wrong Answer to some Serious Questions".html) was my initial discussion of this lawsuit, and on January 16 (in conjunction with a January 17 column) I posted “"County Sheriff an Underdog in his Lawsuit against County Commissioners" predicting the 12(b)(6) dismissal.]

G'night!

[Actually, it's probably worth mentioning that the federal lawsuit had other problems, which may or may not have contributed to the decision to dismiss with prejudice: first, changing the composition of the dais (which reportedly involved other independent non-commissioner elected county officials, not just Vigil) would be a pretty small "retaliation" even if Vigil could have proved it was retaliation; second, the sheriff was walking a thin line between alleging actual damage (that this small-time stuff scared him out of speaking his mind on important public matters, which it obviously hadn't and which would have demeaned him) and putting it all in hypothetical terms.  Finally, although the investigation of the sheriff seemed kind of dumb at the time, the commissioner-defendants might well have been able to show that it was required of them under the circumstances, which would have killed that as an alleged instance of retaliation.]

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.

                                           -30-

[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. 

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.]