More Fireworks between County and County Sheriff

Tuesday was a long, difficult day, and hard to write about.

A county-hired consultant reported to the commission on why the sheriff's office has adequate numbers of personnel. Then a long parade of DASO personnel passionately disagreed. Later, DASO top brass attacked the study at a press conference. 

Sheriff calls consultant a hatchet-man, County says consultant is the best in the business – and authored a Department of Justice staffing document the Sheriff had relied on earlier. Consultant says 12-hour shifts are better than 10, Sheriff cites a study showing 10 is better than 12; consultant says 20,000 calls per year, DASO says 100,000. 

Who's right? Ask me after I investigate further.

More important: what's going on in this long-running dispute? 

Sheriff's deputies are angry. No raises for years – while a county-hired consultant working with the human resources department recommended raises for HR employees. (The raiselessness arose partly from the deputies' union's decision to focus on other issues.) Watching officers young and old leave for better-paying law-enforcement jobs. Working with old equipment. Deputy Ken Roberts demonstrated Tuesday how deputies often have to hold a radio as high as possible to make it work. 

The county administration is frustrated. I like Kiki Vigil, but sometimes his manner magnifies problems. Yesterday he stood up and loudly called Commissioner Billy Garrett a liar. (I looked into it, and found no lying. As usual, there were two differing interpretations of an ambiguous situation. Both Billy's view and Kiki's were honest, I think.)

Recently, using an outside vendor to repair cars, Sheriff Vigil exceeded the approved $10,000, and even the $50,000 the county manager had authority to approve. The commission was asked to approve all this after the fact, and declined. A law-enforcement official who dislikes both sheriff and commissioners told me a while back that the sheriff exceeded other budgets; and a commissioner privately confirmed that.

The sheriff says he's walking the streets in support of challengers for commission seats. He may not realize that some voters find it intimidating that a man with a gun is visiting to tell them how to vote. What also isn't clear is which came first: did his frustration with the county government lead the Sheriff to seek change, or did political considerations lead him to make honest differences more vitriolic than they needed to be?

Tuesday, most DASO personnel spoke pretty angrily to the commission. Mostly, the commissioners took it, with good grace. 

Garrett gave a long, heartfelt response, and made some good points, including a 25% increase in DASO's budget; but I cringed at his reaction to criticism that commissioners haven't ridden along with deputies: “Maybe I should do it, for the optics. But our job is making policy here,” was a troubling answer, from an otherwise great commissioner. 

It was hard to watch DASO officers bash commissioners for an hour. I know good people on both sides. Under the previous sheriff, some bad things happened to these officers. A few talked to me, and I wrote about it, despite threats to them and to me. I respect and like those officers. I've also talked at length with the commissioners. I respect and like them. We're lucky to have them serving – even if we don't agree on every issue. 

I'm not on any side. I'm telling friends at DASO that certain commissioners are trying really hard to be excellent public servants, and are doing a lot of good. And I'm telling friends on the commission that many of those deputies were yelling from honest frustration, not mean-spiritedness. A ride-along could only enhance understanding.

                                                            -30-

 [The column above appeared in the Las Cruces Sun-News this morning, Sunday, 1 May, and on the Sun-News website, and will be up shortly on the KRWG-TV website as well.   ]

[Let me make one thing clear: based on the past few years, I'd vote for the re-election of Wayne Hancock or Dr. David Garcia if I lived in their districts.  I say that despite having criticized the county administration on certain issues, notably the sluggishness with which county manager appears to have dealt with personnel issues and the concern among some county employees that despite her initial promise she's become part of the problem.  First of all, that isn't the only issue facing the commission.  There are many others, some of them complex.  These two men have brought integrity and experience to the table and have tried to deal with issues fairly and with good judgment.  By and large, they've done well.  And I trust them both.  Once you get past the slogans and sound-bites, they're both working hard to represent us well.]

[I do hope to look further into the staffing issue.  And other issues involving the sheriff's office and the county administration.   On the staffing issue, factual disputes such as the number of calls annually, as well as continuing discussions such as whether 10-hour or 12-hour shifts are best, should be easy to look into.
I disagree with the sheriff's side that the county commission had no business looking into the staffing issue: the commission had budget oversight and an HR department, the sheriff has made serious allegations about staffing levels, and the commission had every right to look into that.
But I wish the two sides could have agreed on a consultant and cooperated.  Under the circumstances (an ongoing civil war between sheriff on the one side and county manager and HR director on the other) there was every danger that hiring Mr. Weiss would look like an attack in that political civil war.  The commission did try for some cooperation, inviting District Attorney Mark D'Antonio to broach the subject with Mr. Vigil, and there was some discussion, but it isn't completely clear why that never bore fruit.  (I think the sheriff should have cooperated anyway; but I understand the feeling that it was a put-up job.)    
Aspects of the report and its presentation by the consultant did feel a little like watching an expert witness on one side in a trial -- someone who knows the field, but is clearly testifying on behalf of one side in a dispute.  I'll follow up by trying to ask the consultant, but his discussion of 9-1-1 calls is an example: the law (and logic) requires investigation of calls on which someone immediately hangs up, and  he seemed to be suggesting there were ways to cut down on those.  He recounted a situation in another town where 10% of the 9-1-1 calls turned out to be from a single hotel where people were trying to dial 9 then an outside number; but in a town this size, I gotta think someone would have figured that out if it were happening here.]
[Personal note: soon after I moved here, someone beat up someone else in the house I'd lived in in California; with my California cell-phone, I quickly dialed 9-1-1 -- then realized that of course the cell-phone would connect me with the jurisdiction I was physically in, not the one in the cell-phone's area code; so I hung up quickly, or explained to the person who answered what had happened.  About ten minutes later a DASO deputy showed up.  When my wife explained, he still politely insisted on coming inside to where I was and talking directly to me.  Otherwise, how would he know we weren't being held at gunpoint?]

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.]
 

Would you trust these folks?

Imagine someone wants you to invest in a big company. 

“Who's your internal auditor?” you ask.

“Milton was, but he kept reporting embarrassing facts. We fired him. Some allegation of misconduct.”

“Who replaced him?”

“A very experienced lady, two or three years ago, but she took one look and quit within a week.”

“Who replaced her.”

“No one yet.”

“Well who's your risk manager?”

“Was Fridenstine, but he got crossways with our attorney. Wondered whether it was right for our in-house attorney to also be our outside counsel, paid separately. And other stuff. He's gone.”

“Who are your internal investigators?” 

“We had two, Kim Stewart and Lupe Quezada. Working under the attorney so he could control them.”

“And?”

“Well, a jury awarded Kim a million bucks because we fired her after she made an embarrassing report about Curtis Childress. She was pesky that way. Lupe's still there. She's good, but the grand jury got hold of a report she did on jailer Chris Barela. We often go around her now. Use an outside investigator. Costs extra, but it's not my money.”

“Which investigator?”

“UIS, but sometimes they're a little too objective, so we're switching.  Maybe we'll try a law firm - make sure reports come out right.”

Sound familiar? The “big company” is Doña Ana County. And I wouldn't invest if I didn't have to.

This situation is wrong. As one employee told me Wednesday, “If an auditor says 'This isn't quite right,' you're not supposed to tell him to go pound sand. That's how you get sued.” The employee had called about problems at the County.

As I started to have coffee with him, my cell-phone rang. Unfamiliar number. “Hi, I'm Jane, I work at the County. We talked once a long time ago, do you have some time right now?”

Employees say that if management doesn't like you, you get suddenly told you're on administrative leave. Ask why, and you're told: “You'll find out, an investigator will contact you.” Maybe the employees exaggerate; but how would we know, as things stand now?

County management has had serious problems for years. The commissioners made what looked like a good move by hiring Julia Brown; but it hasn't worked out. They should face up to that. (Folks act like Leticia Benavidez was some nut case for being the only commissioner who voted not to extend Brown's contract; but as one employee said, “Leiticia's the only one who ever worked at the County and knows the shenanigans that go on.” 

Commissioners (for good reason) have limited power. They have none over elected officials like Treasurer David Gutierrez or Sheriff Kiki Vigil. They have little over the County Manager.

Before Ms. Brown, management acted badly, morale was terrible, and Commissioners trusted management too much. Now under Julia, management seems to be acting badly, and morale is terrible. 

There needs to be an auditor. There needs to be a way for employees to complain without the complaint going through the County Manager. And Ms. Brown should probably be gone.

On a happier note, there's Wally. Wally plays pickleball with us. He came from some tiny Texas town. I think his wife was his high-school sweetheart. Wally's so popular that Meerscheidt Rec Center staff brought out a surprise cake for his birthday Wednesday. We sang to him, but Wally still kept beating our butts. Hard shots, precisely aimed. It was his 81^st birthday.

                                                       -30- 

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, February 14  and will appear shortly on KRWG-TV's veb-site under News-->Local Viewpoints]

[The County may well have a good excuse for each of the events above: firing or driving away Duran and Fridenstine and Stewart, etc.  But the pattern - including apparent inaction as far as filling positions -- seems awfully suspicious.]

[As to whether Brown is getting revenge on enemies, I can't fully say; but certainly it's convenient for her to have Dennis Montoya (Sheriff Vigil's right-hand man in disputes and discussions with her and HR) out of the way.  Maybe he deserves it.  Two investigators who'd been working on the investigation of Barela (and ultimately Brown herself) are also gone.  These are not the only example.  Maybe each of her non-friends against whom action has been taken deserves the action; only time will tell, I guess.  Or a series of judges and juries will.),]

[I do feel I should add, again, that the County Commissioners have surprisingly little power.  Laws wisely implemented to protect against political interference necessarily restrict them.  As the embarrassing Mr. Gutierrez, our County Treasurer, proudly proclaims in a column in this morning's Sun-News, they can't do anything to him for his admitted misconduct.  Similarly, with regard to personnel the Commissioners can only hire and fire the County Manager.]

County Manager

Tuesday the Doña Ana County Commission will discuss its sole employee, County Manager Julia Brown. Following a closed-door discussion, the Commission will vote on whether or not to extend her contract, by how long, and under what conditions.

Like the Commissioners, but with less firsthand knowledge, I thought Ms. Brown was a very promising hire. Like the Commissioners, but with less firsthand knowledge, I've been somewhat disappointed. 

I'd guess that none of the Commissioners gave Brown high marks at evaluation time. I'd also guess they'll steer clear of either a two-year extension or termination (despite some sentiment for each), and extend her employment for a year that could become six months if there isn't perceptible progress on certain perceived shortcomings.

Before Brown was hired, there appeared to be a clique of county officials (named in earlier columns) that looked out too much for their own and each other's power and security and too little for the best interests of the County. Many county employees and ex-employees felt their fortunes depended on kissing butts and making no waves, not on competence or top-notch public service. It sure looked that way to me.

The County also needed to do some serious long-range planning that the previous manager might not have been too keen on getting into.

Brown brought a great resume, a greater smile, and all the right verbiage. 

HR weeded out the bulk of the candidates, based on commission criteria, to save the Commission time. That sounded good, but meant HR, with an inherent conflict-of-interest, could affect the process. (I'm told that at least one applicant who promised to get rid of the county attorney and HR director didn't make the cut. Perhaps he didn't meet the Commission's standards.)

Brown's performance cleaning up the place (and being seen to have done so, to reestablish trust among county employees) has been mixed, at best. Some people are gone who probably should be gone. On the other hand, after the Stewart trial broadened our knowledge of problems the Granados trial had revealed, Brown made an incredibly tone-deaf speech to employees. Many employees have wondered whether, as two juries found, management retaliates if one presses valid complaints. Brown told them that people had lied on the stand in Stewart, that she knew the trial's result was wrong, and that many employees make complaints when they're just about to be disciplined or fired for cause, to delay or avoid consequences of poor performance. But at the end she insists she wants employees to know she's 100% against retaliation and discrimination, and they can always come to her. 

Many viewed her hiring as folks in the Middle East greeted the Arab Spring. Some of the same people feel nothing has changed. Many feel that Detention Center Director Chis Barela and HR Director Debra Weir should be gone by now.

Brown works hard, I'm told; she has attacked projects like the Comprehensive Plan that make normal people's eyes glaze over but can prove important. Although her communication with the Commission leaves something to be desired, it's fair to say she's working on the issues, that fixing things would take anyone a long time, and that a year is a significant investment in her. She has such a promising resume that some folks feel it'd be a shame to give up on her prematurely.

One observer suggested that increasingly frequent “work sessions” symbolize micromanagement by the Commission and use up a lot of management's time, undermining Brown's ability to do her job.

A two-year extension would seem unwise; but if Brown stays, the Commission should clearly articulate its concerns and desires.

                                                                  -30-
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 22 November, 2015, and will appear today on KRWG-TV's website as well.   I invite comments and criticisms.]

[I don't have much to add to the column.  I did have one more example of what I've called tone-deafness, although this one would qualify as just plain dumb.  Brown's office announced an office-decorating contest among different departments of county government, with someone judging it and offering a prize, and said the County would allow each employee to work five hours on the decorating, paid.   A clever guy I know worked out the math, and at current rates and assuming every employee used his or her five-hour allotment, that'd cost the county upwards of $200,000, if I recall correctly.   This at a time when county government is experiencing a civil war over pay in the Sheriff's Office!   I called a County Commissioner, and this thing hadn't been run past them.  I called Brown's office, and her office confirmed the idiocy.  I left a message asking Brown herself or HR Director Debra Weir to call me back, hoping there was some sane explanation, or we'd all misread the memo.  Never heard any such thing, but the five-hours' paid allotment per employee offer was retracted.   
Never did hear back from Brown.  She may have decided I'm a trouble-maker.  I can never figure out how public officials get that impression!]
[Oh, and I did go take a look at the correspondence between the DA and Sheriff's Office, on the one hand, and Brown and County Attorney Norm Goodin, on the other, regarding documents about alleged bad conduct in the Detention Center.  The real joke was some of what former County Attorney John W. Caldwell had held back from investigators based on the attorney-client privilege.  Included an email in which a jail employee had sent an unsolicited complaint about misuse of County resources.  It's pretty basic that there's no attorney-client privilege there.  But Caldwell withheld it.  Anyway, the upshot was that the Judge ordered documents turned over to investigators but imposed on both sides a County-requested gag order so that they can't give us those documents or say publicly what's in them.]