County Government Gets Weird Again

County government is getting a little weird again.

At Tuesday's meeting: (1) someone urged the Commission to put County Manager Fernando Macias on administrative leave; (2) Macias accused County Commissioner Shannon Reynolds and Sheriff Kim Stewart of “blatant misrepresentations”; (3) County Attorney Nelson Goodin told Reynolds, “I'm trying to give you my legal opinion and you seem to want to argue” – then walked away; and (4) we learned that Macias and Stewart never sat down and discussed a contract (for magistrate court security) they were at odds over. 

The Third Judicial District Court (“3JDC”) now has management responsibility for magistrate court and wanted the Sheriff's Office (“DASO”) to provide security. Somehow both Macias and Stewart talked with 3JDC – separately. At one point, per 3JDC sources, there were two contracts floating around. 

As 3JDC Executive Officer David Borunda said Wednesday, “We wanted to fill this critical security need. We didn't care who signed for the county. Who had to approve it on the County's side was between the County and the Sheriff. We didn't care, and wouldn't have been in a position to offer a legal opinion.” He confirmed that the Administrative Office of the Courts reviewed the contract had “didn't have any concern” based on the fact that Sheriff Stewart signed it. 

Apparently Macias doesn't talk to Stewart. Both told Reynolds they hadn't sat down and talked about this. Eventually 3JDC and Stewart signed an agreement. DASO started providing security August 1^st.

Macias told the Commission that Judge Arrieta told him the BoCC needed to approve the security contract. Sources at 3JDC (and DASO) say different. After seeing two versions and discussing them with Macias, 3JDC signed the one the sheriff had signed. So 3JDC knew of the intra-County bickering and signed with DASO. 

How did Macias, whose job includes helping elected officials such as Stewart to do their jobs, not sit down and discuss this with her? That's bad government – although, individually, these are good people, who care about the county. 

We also learned that Stewart filed an EEOC complaint against Macias, alleging that he discriminates against female county elected officials. I have my doubts about that EEOC claim, but wonder whether the County followed proper procedures. County officials referred it to an outside law firm. That firm rejected the Complaint without investigating. In three days. Like a judge granting summary judgment, essentially announcing that even if the plaintiff's factual allegations are correct, there's no legal case. But is that appropriate here?

Personalities complicate things. Although Macias is smart and charming, and brings a boatload of relevant experience, I keep hearing allegations that as judge and as county manager he doesn't always play well with others. Macias might say he is sticking to laws and policies others may not understand or like.

The larger issue is inherent in our mixed system in which elected officials are autonomous – but not really. Certain things aren't spelled out in our laws, which go back to territorial days. (For example, no statute or court decision clearly says whether or not a sheriff can sign a contract without commission approval.) A county manager wants to make sure things run right (as he sees right) while elected officials say they were elected to run an office, and county management shouldn't use purchasing procedures or legal review of contracts as a way of dictating to them.

But “can't we all get along?”

                                               -30-

[This column appeared this morning, Sunday, 18 August 2019, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website.  A spoken version will air Wednesday and Saturday on KRWG, Thursday afternoon on KTAL (101.5, FM / www.lccommunityradio.org ) and is available at the KRWG website.  Comments, including criticisms, are invited, here and on those sites.]

[This continuing issue will likely warrant a further column in the foreseeable future.  I should say, these issues, involving the relationships among county officials, the conflicts between elected officials and the county manager, and the degree to which those may be hindering effective county government.]

[Ultimately, the Commission moved to postpone the court contract discussion to its next meeting.  One thing still not clear to me is why the contract with signatures by Third Judicial District Court and DASO was not presented to the Commission, to make clear that one option was to approve that contract as such, after the fact (or if the Law Department insisted, add a signature line for the County Commission, or sign it again -- whatever!).  Also unclear is who at the County is trying to insist on two additional provisions unacceptable to the Court: one involves allowing DASO to hire private security guards in a pinch, and the other would allow either side to cancel the contract in 30 days instead of 60.  If I were the court I'd sure refuse that, lest some political madness at the county lead to a cancellation that left me less than a month to get a new deal in place with someone else. There's also an issue about a provision in the signed contract regarding cost of living increases for deputies -- when the County has a union contract with them.]

[Meanwhile I do want to mention, for folks interested in local government, that preceding the 5 November local election, we've scheduled discussions with candidates for some local offices, and will schedule others, on my show (Wednesdays, 8-10 a.m.) on KTAL, 101.5 FM Las Cruces.).  Walt Rubel and I will question candidates for Las Cruces Mayor on 2 October from 8 - 9:30, and candidates for City Council from 8 to 9 on the last two Wednesdays in September (District 2 on 18 September and District 4 on 25 September.  On 9 October from 8-9 we'll talk with Las Cruces school board candidates.  We have signed up all the candidates for those offices whom we know about, and even reached out to some we've heard may join races.  (If you know of someone planning to run, please tell him or her to contact me!)   We hope to add other races shortly.  Again, those will be on KTAL-LP, 101.5 FM (or stream us) starting at 8 a.m. on the stated Wednesdays, repeating from midnight to 2 a.m., and the station almost certainly will re-air them at some other time; and we'll also add them to our archives on the website.]

"Memory" -- copyright Peter Goodman

[By the way, Sunday I spoke w Lynn Ellins, Chair of the County Commission.  
He stated, as to the discrimination complaint, that "It came directly to me.  I sat down with Human Resources and the Legal Department.  Each of us concluded independently that she failed to state a cause of action.  She never sated that men would be treated differently.  But I decided to send it to an outside attorney, and she reached the same conclusion.  Procedure was followed.  On the face of the complaint, there was nothing to investigate.
On the issue of whether or not the sheriff had authority to sign, he stated [as an experienced lawyer] that he'd made his own independent search and concluded that she did not, that the Commission is responsible for all county matters fiscal in nature.]
[I remain concerned about how things are going in county government, and so stated to Mr. Ellins. As I see it, sometimes a discrimination complaint is made by someone who has fair reason to complain, but the grounds don't quite fit that legal hook.  A court or hearing officer might dismiss it on that grounds, and in some cases should; but that doesn't mean a good manager should ignore it.  Such complaints are crafted by non-lawyers, and if the complaint didn't include the allegation that Mr. Macias treated or would have treated a man differently, but didn't exclude that, maybe the investigator should have asked Sheriff Stewart.
Too, while Mr. Macias may be giving some county employees reason to complain, that doesn't mean he's evil, or ill-intentioned.  Good communication -- with all parties genuinely open to it -- might go a long way.]

Jury Finds for Jorge Granados

     I'll assume you've been following the trial on this blog [for which, thanks] and cut right to the chase.  [If you haven't, but are interested, please page down to earlier posts -- or go back to last Tuesday's post  [Day 2], and/or Diana Alba Soular's good article on the opening of the trial, then skim through the succeeding days' posts.)  You can also just page down to Thursday's post covering Day 4, or further down to the posts for Days 2 and 3.]
     At about 7:20 p,m, the jury of twelve of his peers handed their verdict in the Granados case to Judge Arrieta, who then read it:
      The jury did not find that Dona Ana County had discriminated against him for being Hispanic, bud did find that the county had retaliated against him for raising discrimination complaints and had created a hostile working environment.  Both sides had agreed that if the jurors found the County liable, the damages for lost wages and benefits would be $60,497.05, and the jury foreman duly entered that number on the verdict form.  The jurors then found that the County's conduct had caused Mr. Granados emotional damages as well, and awarded an additional $190,000.
      The verdict was unanimous.  The foreman later told me that there'd been "a majority" from the start of deliberations.  A second juror told me that several jurors had wanted to award $250,000 in emotional-distress damages.
       As soon as the verdict was announced, lawyer Daniela Labinoti began sobbing, and embraced first her client then co-counsel Brett Duke.  Mr. Granados's wife and daughter were also sobbing -- as was Mr. Granados when he came outside and embraced one of the jurors, thanking him.
        "I didn't come for the money," he told the juror.
        "We figured that out," the juror replied.  The same juror had just stated to us that "there should be an investigation into Ms. Padilla" and that "we wanted to set a precedent for the county.  Paying out all that money in the Ramirez case didn't set a precedent, so we wanted to, and stop all this harassment."
        [btw, Diana Alba Soular from the Sun-News was present for closing arguments and the announcement of the verdict, so there should be a Sun-News story tomorrow morning.]
.       [I've also written Sunday's column about the case and the county management, although I'll make some changes to incorporate the verdict, having submitted the column an hour before the jury submitted its verdict.]
        Among other things, my column noted that whatever this jury might find with regard to Jorge Granados, the larger jury was still out concerning county management. It still is.  But these jurors -- twelve average folks, not primarily Hispanic, not necessarily an unduly sympathetic jury to Mr. Granados's case -- have weighed in loud and clear.   A county citizen who knows there are a half-dozen somewhat similar cases out currently wending their way toward trial might wonder how the verdict will affect the county's view of those.
         A citizen might reasonably wonder too about the conduct of this one.   Hindsight is always 20-20, but I came to believe weeks ago that the county (or, more precisely, its insurer) should try to settle the case.  I'm pretty sure the case could have been settled for a lot less than the county (or the insurer) will now pay: $250,000 to Mr. Granados, and several hundred thousand dollars to his lawyers and the County's.  As trial went on, I thought Plaintiff was winning.  I told both sides today that I thought the verdict would be for Mr. Granados, although I guessed the amount of money would be less and added that obviously none of us could know.  The county's insurer, or the commissioners, or the county counsel -- whoever makes these decisions -- did not choose to re-open settlement discussions during trial.
        A little-known secret outside legal circles is that your people win trials, not your legal arguments.  With apologies to friends in county administration who tell me Mr. Granados is a liar, he didn't seem like one this week -- to me or to the jurors.  I'm guessing he may have stretched some things to fit his case into the right legal pigeon-holes, but maybe he didn't even do that.  He didn't seem like a liar or a greedy man.  Rather obviously, he seemed to the jurors a sympathetic figure and a straight shooter.  Most witnesses, though employed by the county, certainly said he was honest and trustworthy -- and said it more clearly than they said much of anything else.  The County did not show otherwise at trial.
        Watching the jurors through the trial, I felt as if they were leaning toward Plaintiff.  Trying to sense a jury's mood can be a treacherous game, but there were some clues in body language, in whose jokes they laughed at, and the like.
        More to the point is whether or not the verdict will affect the county's conduct or its decisions regarding the additional litigation.  Without pre-judging those other cases (and as to most of them I know little more than the names), I'm concerned.  Can the county's insurer and legal team turn off their personal views and look at these cases the way jurors would, in order to calculate settlement value?  If there are trials, will we again see witnesses who work at the county, and feel intimidated by counsel or management, try doggedly to hide their resentment of that intimidation and shade their testimony to be as favorable to the county as they can really make it?. Is there some reason to think jurors won't see through that six months from now as easily as they did this week?
        I know from my own investigation of the county that in certain departments there's a climate of fear.  That's been described or expressed to me by people who look me in the eye and sound generally credible -- and by quite a few of them, while others are too scared even to say "Hello."  Still others appear out of nowhere now and then and give me a sign that although they can't speak to me, and courteously decline to do so when I ask, they see things wrong in county government that they wish were known more generally by county citizens.
       At the same time, I genuinely enjoy and respect some of the higher-ups about whom I find it necessary to write uncomplimentary things.

      The jury began deliberating at about 3:20 p.m. Wednesday.
Closing arguments presented a rich contrast in styles and substance.  Plaintiff’s counsel Daniela Labinoti spoke passionately, showed summaries of testimony regarding discrimination, and closed with a reference to the imminent Fourth of July – urging jurors to “make history” and reassure aggrieved victims of discrimination here that they can speak up.
Defendant’s counsel, Raul Carrillo, spoke calmly and dispassionately, and urged the jurors to consult the mass of policies and documents in the record, rather than following their passions.  “Our job is to come and reason together,” he said.  If he didn’t quite manage to explain just why Granados was fired, he did pretty well at suggesting that the witnesses who testified favorably to Granados were malcontents.
        The county or its insurer will likely decide to appeal.  I'll be interested in their grounds.
                                                 
       

Granados v. Dona Ana County Day 6

[If you're a juror in this case PLEASE DON'T READ THIS -- and if you know a juror in this case, please don't send him or her a link to this.  If you're not a juror, feel free.  This post covers Monday, July 1st, the sixth day of trial.  If you haven't been following the case, there's some background in Tuesday's post  [Day 2], and in Diana Alba Soular's good article on the opening of the trial.)  You can also just page down to Thursday's post covering Day 4, or further down to the posts for Days 2 and 3.]

Today Plaintiff rested, after calling Internal Affairs Investigator Guadalupe Quezada and Plaintiff's wife, Juanita Granados.  Defendant, after an unsuccessful motion for a directed verdict, presented the bulk of its case, but did not finish.  Human Rights Director Deborah Weir testified for much of the day, and there were also brief appearances by Donald Fenerty, Henry Cornelius, Paul Dugie, and Misty Dawn Benavidez.  Testimony will continue tomorrow morning and probably end by mid-afternoon.  The jury will likely get to go home early, while Judge Arrieta and the lawyers finish hashing out jury instructions, and then closing arguments will occur Wednesday morning -- starting at 10..

The single most striking aspect of the trial so far is the vast number of County employees who have admitted during their testimony that they feared retaliation by their employer if they testified truthfully.

      It struck me at some point that in decades of doing trials (and, before that, covering them) I've never seen that.  I've seen witnesses who seemed cowed by their employer and who tried to say the opposite of things they'd told me casually in private.  But I've rarely seen so many witnesses whose testimony was largely favorable to the county concede in one way or another that they feared retaliation. Pretty much every Hispanic employee-witness has made such a statement.  However, each testified that s/he was telling the truth from the witness stand and had not been influenced by retirement concerns or fears of retaliation.  

When Ms. Quezada, a ten-year county employee, testified this morning, the following Q and A sequence occurred:

Q. Are you afraid of testifying today?

A. Yes.

Q. Are you afraid of retaliation?

A. Yes, I am.

      In fact, her substantive testimony was minimal.  She testified to having located and attached to her report certain documents Plaintiff had been accused of destroying. This was approximately two months before Defendant was terminated.  She testified she hadn't been aware he'd been accused of destroying them.  Asked whether it was unfair to accuse him if the documents were in the possession of the Human Resources Department, she carefully replied, "If that is how it is, I would have to agree with you."

      On cross by Defendant, she testified concerning the documents regarding discipline meted out to two Road Department supervisors.  She also testified that she'd written a memo regarding the Jason Ireland incident, but that it contained solely information provided by Ms. Weir, and that she hadn't spoken with Mr. Granados.

      Regarding her fear of retaliation, she testified that she'd testified in one other case, involving a friend, and had suffered a neither a pay decrease not a decrease in benefits or authority.  Asked whether, then, "in any objective sense" she had not been retaliated against, she replied, "Not yet."

She was followed by Ms. Granados, who testified that she and Plaintiff had been married 21 years and had two daughters, and that they'd moved back to Las Cruces, despite a pay-cut for Mr. Granados, so as to raise their daughters around extended family.  

      Regarding her husband's reaction to his notice of termination, she said he was "in shock" but pointed out to her his right to a hearing, and expressed confidence that the hearing would  turn things around.  After the hearing, she testified, "I guess he was in shock.  He came out and said, 'They didn't even let me speak.  Brian kept interrupting me.  They'd already made up their mind to fire me.'"

      Later, she said, he became "very withdrawn."  

      She said that what she wanted from the trial was "to clear my husband's name.  He was accused of being dishonest."

      Her testimony was potentially moving but not highly substantive.  I wrote in my notebook as she finished, "I wouldn't cross at all."   Moments later, after a brief conference, the County's lawyers announced, "No questions, your honor."

      That ended Plaintiff's presentation of evidence, at 9:18 a.m.

      Defendant then moved for a directed verdict.  Such motions, which are probably made by defendants in more civil cases than not, can occur at the end of Plaintiff's case.  Defendant is essentially saying that it is entitled to have the Judge direct a verdict for Defendant because Plaintiff has failed to introduce, as to some required element of each cause of action, sufficient evidence that a reasonable jury could find that particular cause of action to be proven.  That is, even if everything said so far is true, Defendant wins.   (A simple example: if my cause of action involved discrimination based on race, and I failed to put in evidence regarding my race, Defendant could prevail on a motion for directed verdict; in a case for patent infringement, if Plaintiff failed to show evidence that s/he was the legal owner of the patent, Defendant might win such a motion.

      Here, briefly, Defendant's argument was based in part on a lapse of nearly two years between Plaintiff's passing on of a complaint by a subordinate and Plaintiff's firing meant, under previous court decisions, that without specific evidence that passing on the complaint caused the firing, a reasonable jury could not hold that there was a causal connection.  Defendant also questioned whether that complaint, which referred to Ms. Padilla acting against the complainant's department because it was mostly minorities and people of low education, concerned ethnic origin or other factors.

       Judge Arrieta denied the motion and stated that "Clearly in my mind," there was some evidence from which a jury could find discrimination based on national origin.  I should note that this does not mean Judge Arrieta thinks Plaintiff should win, but only that Plaintiff has produced enough evidence to go forward and let the jury decide who wins.

Donald J. Fennerty, briefly the Interim Human Resources Director and now employed at the Detention Center, testified that he recalled no such conversation as Plaintiff Granados had testified occurred between them.  Mr. Granados had testified that when he talked to Mr. Fennerty about his discrimination complaint, Mr. Fennerty said something to the effect of, "You have to stand up for your employees."  Mr. Fennerty testified that Mr. Granados had never spoken to him about any complaint regarding discrimination/retaliation. "He never spoke to me about these subjects at all.  I am very adamant about that."  As to a discussion of discrimination based on national origin, he said "Sir, I never heard those words." He later added, "I am very certain about these things."  He said such a conversation, during his mere six weeks as Interim H.R. Director, would have been "a significant event" that would have stood out in his memory.

      On cross by Plaintiff, asked whether he had once told Kim Stewart that he failed to land the permanent H.R. Directorship because he refused to do the things Sue Padilla told him to do, he replied, "I would doubt that very much.   I don't believe that's accurate."

      He also testified that while he needed one more year for his retirement to vest, and "would be foolish not to want that to be vested," his testimony was not in any way influenced by that desire.

Henry Cornelius testified concerning a period when he was working under the supervision of Robert Armijo, a Hispanic, but making more money.  He testified that he had "43 years' experience" and that Armijo was about 43 years old, and also that the disparity had been corrected in 2012.

Paul Dugie, Flood Commissioner, testified that his salary (which Plaintiff had noted was higher than Plaintiff's, although they were both directors and equivalent in status) came from a different (and state-administered) fund than other county employees.

Deborah Weir testified at great length, but during the morning she primarily authenticated various documents Defendant wished to introduce into evidence.  She also testified that the Sally Ramirez sexual-harassment case (in which the County settled a claim by the U.S. Department of Justice and paid a total of $150,000 to five plaintiffs who had worked as maintenance people in Facilities and Parks) had made management very sensitive about careful reporting of any possible discrimination complaint.

After lunch Misty Dawn Benavidez testified before Ms. Weir continued her testimony.

      Ms. Benavidez, an administrative assistant in Facilities and Parks, testified that there had been a time when she didn't get along with Sue Padilla but had talked to her about issues and "Now we're good."  She said she'd come to resent not only Ms. Padilla but her job.  She also testified that she hadn't been retliated against over her national origin.

Under direct examination by Mr. Carrillo, Ms. Benavidez testified:

Q. Are you testifying today to keep your job?"

A. It's crossed my mind.  However, I'm here to tell exactly what happened.

Q. Do you fear retaliation from anyone?

A. Yes.

Q. Have you gotten over that feeling by talking to Ms. Padilla?

A. It comes and goes."

On cross-examination, she was asked whether she'd felt harassed by Sue Padilla and experienced a hostile work environment.  She replied that she'd felt that if she spoke out, Ms. Padilla would retaliate.  She conceded that she'd still felt harassed in 2010.  She was asked whether she'd experienced a $4 pay cut, and replied "And then some.  It was very harsh."  Asked if this was the result of Sue Padilla, she replied in the affirmative.  Asked if she felt it was the result of truthful testimony in the Sally Ramirez case, she replied "I'm not sure why --- I just felt harassed."  However, Plaintiff showed her a June 2012 statement in which Ms. Benavidez had also been asked whether truthful testimony in that lawsuit had led to a demotion and pay cut and had replied, "Yes, ma'am."  

Q. You don't want another $4 pay cut after testifying, do you?"

A. "No, ma'am."

      On Redirect, Mr. Carrillo ask whether she feared another pay cut.  She replied, "Kind of, yes."

Ms. Weir then returned to the stand, and testified until late afternoon.  She testified to having been involved in drawing up the Notice of Intent to Terminate, and said that she'd recommended terminating Mr. Granados's employment "because of dishonesty and insubordination."  She added that directors must be credible and trustworthy, and said, "It's not a performance issue.  It's a character issue."

      She also suggested, with regard to the Jason Ireland incident, that although county manuals mandated reporting an incident of discrimination when the supervisor either observes it personally or is told of it by the complainant, there should also be a "knew or should have known" standard.  Mr. Granados was not told of any discrimination by Mr. Ireland, did not personally observe any, and (I believe) testified he hadn't even met the man.  However he was told something of an incident, or possibly two incidents, in which Mr. Ireland was unhappy because others on his work crew were speaking Spanish to or about him.  Under the "knew or should have known" standard, he would have been obligated to report that.  Ms. Weir testified that that standard is taught in training sessions.  Judge Arrieta jumped in to question her about where it appeared in the manuals and to clarify that Mr. Granados was not Mr. Ireland's direct supervisor.  As to the "knew or should have known" standard, he later stated, out of the jury's presence, "I don't know where that came from.  It's not the law as I see it."

      She also testified to "heightened sensitivity" to allegations of workplace violence.

      On cross-examination she was asked, and conceded, that a black woman working for the county had filed a discrimination complaint against her personally two month ago, and that it had included retaliation, although she said she wasn't sure if it also alleged a hostile work environment.  (No one indicated that the claim had been adjudicated yet.)

[Again, sorry to have written this so hurriedly.  I will likely have to miss most or all of what testimony there is tomorrow, but will hope to be there Wednesday for closing arguments.]