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.]

Vote Tuesday! Preferably against Trumpism

Please vote Tuesday. 

This election is important. Mr. Trump is so dangerous in so many ways, his Republican enablers are so deferential, and there's so much at stake, that a Democratic majority in the House is essential. 

So, please, vote for our wonderful, home-grown Xochitl Torres-Small.

Even with local races, it's important to ask why Republican candidates don't speak out against Trump. Do they blind themselves to Trumpism's dangers, see it clearly but accept it to accomplish certain ideological goals, or simply lack the courage to speak out? Trump is making a last-ditch effort to deepen white Christian male privilege, and to “save us” from the modern world by simply denying its realities. He shows open contempt for Mexicans, Muslims, and women. Do we want local leaders who find that acceptable?

One local Republican leader told me, “I haven't spoken out on President Trump, because I'm focused on the County. I didn't speak out against President Obama, even when I disagreed with him.” That sounds reasonable; but we all have a duty to speak out when our national leaders are dangerously wrong. If someone I supported behaved as badly (and dangerously) as Trump, I'd have to speak out. Having helped empower him, I'd try to limit the damage.

A philosophical difference permeates the local races: shall we use the power of government to make our state or county as good as possible, for all of us – or strictly limit government's activities, even starve government as Republicans are doing nationally?

I'd choose the former, so long as we can pay for beneficial programs. So would most Democratic candidates. Local Republicans have deepened this divide by running folks who aren't just somewhat conservative but extremely so. (Exceptions include John Zimmerman and Kim Hakes. Ben Rawson is a closer call.)

In several state races, the Republican candidates are disastrous: Steve Pearce, who consistently puts his extremist ideology before state and national good; PRC candidate Ben Hall, whose record is beyond spotty; and Pat Lyons, who wants to recover the Land Commissioner position where he once did so much harm. Why trust any of them – when we can vote for the extremely appealing Michelle Lujan-Grisham, Steve Fischmann, and Stephanie Garcia Richards?

Our Republican former sheriff, Todd Garrison, seeks to regain the office he nearly destroyed during his Seeberger episode, while the thoughtful Democrat Kim Stewart has both experience and smart, modern ideas. (Allegations that Stewart would take away deputies' long rifles or disband the SWAT Team, are just plain false.)

Lynn Ellins should win his county commission race, and likely will. He truly knows county government and the law, and works well with others. I'd prefer Karen Trujillo to Kim Hakes, although Hakes seems sensible and good-humored on the dais. (I just think Karen has a better understanding of their district's needs.)

Although I have a good working relationship with Ben Rawson, he seems to lack the vision to make our county the best it can be for all its citizens. Although he emphasizes constituent service, he (and county government) dropped the ball on fire-fighting, sending insurance rates skyrocketing; and he resisted the UDC, an effort at coherent planning. (The last-minute Talavera uproar over trailers, which the county handled just fine, didn't have to be so last-minute.) Relative newcomer Shannon Reynolds holds more moderate views that are more in tune with a majority of District 3 voters. 

In any case, vote!

                                                 -30-

[The above column appeared this morning, 4 November 2018, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website.  A spoken version will air both on KRWG and on KTAL (101.5 FM / www.lccommunityradio.org)]

[Voting against Trumpism is a basic duty this year -- even for folks who understandably wanted to throw a monkey wrench into the system.  As I've mentioned elsewhere (see earlier posts, including http://soledadcanyon.blogspot.com/2018/10/please-vote-our-tattered-democracy.html ), Trump is doing more damage than we could have imagined, and a Democratic House majority is probably essential to maintaining our country in anything like the form it should be.]

[I've also touched at times on some of the local and state races: 
If Kim Stewart's combination of experience and modern ideas aren't enough reasons to vote for her as sheriff, glance again at these past columns concerning Todd Garrison.  (From  Questions about a Surprising Hire by the County Sheriff on 2 March 2014 to Lawsuit against Many of us Crashes and Burns on 30 August 2015, you can read the sad saga by searching "Seeberger" on my blog or just clicking here.  The misery Garrison caused the majority of employees with his Seeberger fixation was astonishing -- and heart-wrenching, if you happened to be airing that story publicly and talk to deputies suffering under Garrisonburger.  (And don't forget the contributions of Garrison's would-be undersheriff, Curtis Childress.  It was Stewart's investigation of his racist drawings that led to (or contributed to) her firing, which jurors later concluded was wrong enough that they gleefully ordered the county to pay her a big judgment.  See Jury Orders Dona Ana County to Pay (17 July 2015)) 
If Steve Fischmann's consistent consumer advocacy, record of integrity, and mix of business savvy and awareness of the urgent need to radically increase our use of renewable sources of electricity aren't enough for you to want him on the PRC, contemplate Ben Hall's record contemplate Ben Hall's record.  (And I may have just scratched the surface.)
Incumbent state legislators Nathan Small, Joanne Ferrary, Rudy Martinez, and Doreen Gallegos have worked hard and thoughtfully for our community's interests, and our state's, and deserve re-election.  To varying degrees, the Republican Party has made these choices even easier by running extremists.  Similarly in the District 33 race between newcomers Micaela Lara Cadena and Charles Wendler, she's a sharp young progressive with good ideas and he's somewhat of a Tea Party Republican with a strong ideology. I voted for her.
Lynn Ellins should and will win, but if you're a new resident or a forgetful one, take a look at this moment in our past, when Ellins recognized constitutional truth and acted, as county clerk, in a way the Supreme Court then agreed our constitution required regarding same-sex marriage: County Commission Knocks One out of the Park (1 September 2013).]

[County Commission Chair Ben Rawson has his good points.  However, his vote last year to fire Julia Brown (Julia Brown's Firing Was Foreseeable but Abrupt --  April 2017) has already led to a huge payment to Ms. Brown in settlement of her lawsuit.  (Rawson had the grace to apologize to her immediately.  I happened to be sitting at the table with her and county staff when he did, during the break after the vote, and wondered a little about what was in his mind.)  Too, I don't agree with his consistent and sometimes misleading trashing of the nascent bus system.  (Commission Ducks Transit Issue -- Citizens Shout "Shame!" -- 14 May 2017  )  I also didn't agree with the rightwing position the county (definitely including Ben Rawson) took regarding a union issue.  The deputies union consistently won in arbitration, trial, and appeal, and the County's intransigence cost us more money in legal fees and perhaps interest.  (County and Deputies Union -- 29 October 2017)   I also questioned the Commission's move to add an extra step that could slow down opposition to El Paso Electric moves to raise our rates, although the Commission's justification wasn't wholly unreasonable. (Did the County Commission Just Do El Paso Electric a Favor? 2 April 2017 )  I'd also note that while 70 to 80% of the citizenry supported designating the Organ Mountains / Desert Peaks National Monument, and the City Commission voted unanimously in support of that designation (opposed vigorously by Steve Pearce), when Trump's administration threatened to reduce the monument, Mr. Rawson was "the lone holdout" when the County Commission voted 4-1 to support keeping the monument intact -- as reported by the Sun-News on June 2017.  
Rawson works hard.  He knows the rules and procedures.  He's a very reasonable guy to talk to.  But Shannon Reynolds barked like a watchdog about the fire insurance issue, well before I got interested and well before the Commission did anything; and his views would appear to be more in line with those of the district's voters.]

[Finally, Probate Judge Diana Bustamante has done a good and professional job in that office, and should be retained.   This is not an ideological or "political" office; she has four years of experience and knowledge; and to unseat her should require her opponent to show some misconduct or serious mistakes on or part or propose some brilliant innovation in how to run the office, which he couldn't do and hasn't done. He's also a newcomer, who moved here in 2014 from California, and I don't know that he speaks Spanish or knows the country very well. ]

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!)]

Further Thoughts on the County's Settlement with Chris Barela

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

But questions remain.

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                     -30-

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

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

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

Another Fired County Employee Gets a Good Pay Day

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

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

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

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

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

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

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

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

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

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

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

Sheriffs Hire Interesting Top Assistants

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

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

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

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

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

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

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

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

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

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

                                           -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.]
 

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.]

County Manager Criticizes Jury Verdict

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

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

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

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

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

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

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

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

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

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

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

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

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

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

County Must Face the Music Juries Hear

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jury Orders Dona Ana County to Pay $1.35 million to Kim Stewart

Like Yogi Berra said, "It's deja vu all over again."

Two years ago, just before July 4th, they tried Granados v. Dona Ana County.   I sat in pretty much the whole trial.  Allegations involved discrimination and retaliation.

The bottom line, as it seemed to a host of county employees and former employes I talked to back then, was that if you were in with the central little group that ran the place (Interim City Manager Sue Padilla, City Attorney John W. Caldwell, Human Resources Director Debra Weir, HHS Director Silvia Sierra) you could get by with all kinds of things, but if you spoke up against 'em, or they merely thought you might speak up against 'em, you were history.  From witnesses and others I heard more horror stories than I can recall now, and wrote a lot about it.

Jorge Granados won a jury verdict that seemed to send a real clear message to the County about what a dozen average citizens thought about what was going on.

And, to be fair, there were changes.  Padilla, Caldwell, and Sierra have departed.  There was a much-publicized investigation.

The past ten days, they've been trying Stewart v. Dona Ana County.  Kim Stewart is a straight-shooting investigator, a former cop, who was fired in January 2011.  Although her involvement as a party to the lawsuit limited our conversations, to the extent that I've talked with her I've found her truthful and credible; when she doesn't know something she says so; when the answer to a question isn't necessarily such strong support for her point-of-view, she answers anyway.  Not everyone does.

Stewart's case has been pending a long time.  Same lawyers as Granados had, Daniela Labinoti and Brett Duke.  Similar claims, involving clannish "I-got-your-back" conduct by the folks who ran the county.

Specifically, she alleged she was retaliated against for articulating problems, notably the discrimination allegations arising from caricatures drawn and words spoken by Animal Control Officer Curtis Childress demeaning minorities.

Again a bunch of witnesses testified that Weir and Caldwell weren't to be trusted and hadn't conducted themselves very well.  Again a hired-gun defense attorney for the county got beat.
Again, basically, when twelve average people spent a week immersed in the facts, they weren't too pleased by the conduct of Caldwell, Weir, and Padilla.  Again they awarded a former employee a bunch of money in order to send a message to the County.  (And they hadn't even heard from some of the folks who've told me additional tales of working at the County, but who were two frightened to let me use their names.)

This time I was in court only briefly, but I saw a few telling moments or points:
1. At one point Labinoti questioned Stewart about her evaluations.  She showed jurors an enlargement of the one for July 2010, mostly praising Stewart and giving her above-average numbers.  Then she showed the one for December 2010, following Stewart's report on Childress, with the numbers much lower and Stewart generally described as inadequate or below-average.  Several jurors near me showed little interest in the first evaluation, but perked up noticeably when they saw the second.  The change in evaluations spoke pretty eloquently to the problem Ms. Stewart was describing.
2. The County blamed Stewart for not reading Childress some extra rights investigators have to read certified police officers in New Mexico.  Stewart said she hadn't known he was certified, hadn't been told so.  County showed jury Childress's personnel file, certified as being as it was in August 2010, when Stewart read through it.  A document said Childress was certified.  County lawyer tried to make a big deal of this.
Unfortunately for the County, Judge Marci Beyer noticed that the 2010 file contained a 2011 document.  That kind of exploded the assumption (or certification) that the file was just as it had been when Ms. Stewart consulted it.   Ultimately the parties agreed to a special jury instruction that the file was not exactly as it had been in 2010 and the jurors could make what they wanted to of the presence of the certification, which Ms. Stewart testified she'd never seen.
Either they chose to believe that Stewart, who came across as an experienced and careful investigator and a truthful person, had seen no such certification or they declined to care about this issue.
3. As former Sheriff Garrison testified to his friendship and business relationship with Childress, and squirmed a little trying to explain a letter he'd written to the State, supporting Childress, that included some statements that weren't quite true, I watched the jurors.  Childress had drawn caricatures of fat Mexicans on a whiteboard in a meeting including Hispanic co-workers.  Stewart had called him on it.  Garrison had supported Childress, perhaps to the point of writing false statements to the authorities, including an allegation that Stewart had been fired for falsifying evidence or something.  Some of the jurors were Hispanic, and not all of them were svelte, and I was guessing they were everyday workers, not CEO's of corporations.  I did not think Garrison was making a great impression on them.
4. Nor did they seem taken with former County Attorney Caldwell's assertion that four discriminaton/retaliation complaints against Debra Weir were not cause for concern.  Maybe administratively that's true and fair, whatever the jurors or I may think.  I've never run a county.  But Caldwell, though precise and careful in his answers, was not a sympathetic witness.  Jurors didn't trust or believe him, and said so later, calling him "self-important."
5. I wasn't there consistently enough to judge, overall, the performance of the County's outside lawyer; but I can report what I saw.  
Proffering the personnel file as "certified to be as it was in 2010" with a 2011 document in it was a careless mistake.  It wasn't an unusual one, as evidenced by the fact that opposing counsel didn't catch it either.  It certainly wasn't any intentional effort to mislead the Court.  And the jurors may not have cared much about the allegation Stewart had failed to read Childress his extra rights.  But it was the kind capable of a "spillover" effect, damaging credibility not only on the specific issue but more generally.
In questioning Ms. Stewart, chief defense counsel adopted a tone and attitude of what I assume was meant to be righteous indignation about her greediness and untruthfulness.  That's a popular cross-examination tactic.  I've never understood why.  It risks coming off as contemptuous and arrogant if the jurors don't agree with you or don't yet see what you think they should see.  It can undermine your rapport with the jurors.  (For any future trial lawyer reading this, the phrase "more in sorrow than in anger" is a one to remember.  Far more often than not, if you don't try to feign hatred or contempt or righteous indignation for an adverse witness you believe isn't quite right about things, but ask the same substantive questions in a respectful tone perhaps projecting a little courteous concern that the witness doesn't quite see the whole picture, the contradictions or weaknesses in the witness's testimony, if they exist, will be made visible and loom larger than if your tone invites the jury to expect some huge diabolical lie. )  Sometimes the tactic is warranted, where the documents so clearly contradict a witness or you have solid reason for great confidence the jury won't identify with the witness; but that pretty obviously wasn't the case here.
But I didn't see opening statements, closing arguments, or the bulk of the trial, so these observations were based on a small sampling.  Too, I have no way of knowing how candid the in-house county officials were with the trial lawyers.  He may have been severely handicapped by a lack of candor.

At any rate, here's another predictable jury verdict requiring us to pay folks who were wronged by our county officials.  The majority of the money ($1 million) -- is for emotional distress.  There'll be an appeal, and the judgment amount will likely get knocked down a bit in settlement negotiations.  But that's not the point.   Last time round, county lawyers and officials raged that the jury was wrong and Judge Manny Arrieta was terrible; but even if the County could have and technically should have slipped through a legal loophole to a defense verdict concerning conduct average folks can plainly see was wrong, is that a wonderful situation?

With the Granados jury, which I interviewed right after the verdict, I was surprised by the passion they felt and the strength of their distaste for the county's favorite witnesses.
I'm told that this jury was even more passionate, and even more devastating in its comments on county witnesses.  Several thanked Kim Stewart for her work.  One alternate juror, who was dismissed once closing arguments were complete, immediately went over to Ms. Stewart and hugged her and thanked her -- which the bailiff said he'd never seen happen. 

This case could have been settled years ago for a fraction of what we'll now pay.  It wasn't.  I think there's a certain arrogance sometimes in public officials that gets in their way.  At any rate, here's one more case which the County contested vigorously (even counter-suing Ms. Stewart at one point) but which jurors saw quite differently from the way County officials and lawyers saw it.   Will we learn anything?

Granados v Dona Ana County - Day 5

[Note: again, if you're a juror in this case 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 the fifth day of trial, Friday.  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.]

        It was another interesting day, which featured testimony by a former county employee and one current one that they'd experienced retaliation by the county and/or seen examples of discrimination.

        Friday morning began with the completion of Interim County Manager's Sue Padilla's direct examination -- and her cross by the lawyer for the County.  (In civil trials a party can call an adverse witness, and then the witness’s own lawyer actually does cross-examination.)
        Much of the testimony focused on the four basic reasons given Mr. Granados for termination of his county employment.   Plaintiff says his firing (which followed by two days a complaint he says he made to County Manager Brian Haines concerning Ms. Padilla) was on trumped-up charges, and that the real reason was to retaliate for his complaint concerning discrimination and a hostile work environment.   Defendant says there was ample reason to fire him, that it was unrelated to whatever complaints he may have made, and that some of the four specific grounds were more significant than they might look at first glance.
        To recap, the four grounds given for his June 2010 termination basically were:
        1. An occasion in mid-2008 when Ms. Padilla had told one of Mr. Granados's subordinates that for budgetary reasons a woman working under that subordinate could not attend certain training in Albuquerque; the woman felt that the training, while not required to get or keep any certification, was very important to her work; it started the following morning at 8; she volunteered to take time off and pay her own way; and Mr. Granados gave her permission.
             He received a reprimand for insubordination.  In his Pre-Termination Notice in 2010, he was cited for insubordination and dishonesty in connection with this training incident.  I understand the insubordination charge, but I haven't yet figured out what the alleged dishonesty was.
Ms. Padilla testified that recession had reduced revenues and required limiting non-necessary training.  She also testified that even if Ms. Guerrero offered to pay for her own training and travel, federal labor standards laws would require the county to reimburse her.
Ms. Padilla testified that this 2008 "training incident" offense was not by itself sufficient ground for Mr. Granados's termination.  However, she testified that it was important because Mr. Granados had disobeyed her, and those working under him would or might model their conduct on his.
         2. Alleged destruction of documents with regard to verbal warnings given two road foremen who apparently were heard shouting at each other.  Two frequent forms of discipline are the verbal warning (of which a written copy is kept in the warnee's department, but is not normally placed in his personnel file) and the written reprimand, which does go into the malefactor's personnel file.   The two road foremen received the lighter "verbal warnings", although there had been discussion of giving them reprimands.  Whichever they got, Mr. Granados was accused of destroying them, but brought copies with him to his Termination Hearing.
Ms. Padilla testified that although Mr. Granados had not destroyed documents reprimanding the two road foremen who shouted at each other, the shouting constituted work-place violence and required the County to follow particular procedures in case one of the participants later acted violently toward another someone while working for the county.
          3. The Jason Ireland Incident.  Jason Ireland worked on a road crew and spoke no Spanish.  Someone reported to Mr. Granados that Mr. Ireland felt overworked and was unhappy that mostly Spanish was spoken by his crew; he was transferred to a crew where mostly English was spoken.  According to Mr. Granados, he asked his immediate subordinate, the Road Manager, to follow up and check how things were going, then heard back that things were fine.
           The Pre-Termination Notice accused him of mishandling a discrimination or EEOC complaint by Mr. Ireland.
The Defense has indicated that Mr. Ireland had later filed an EEOC action for a second incident in which his co-workers allegedly talked about him in Spanish, possibly saying derogatory things.  However, this complaint apparently was filed after Mr. Granados’s departure, and there was no testimony that Mr. Granados had ever known about this or that he’d either observed discrimination against Mr. Ireland or been told about discrimination by Mr. Ireland.  Therefore it’s not clear to this observer how this incident contributes to his termination.
           4. At some point there were discussions of a presentation to honor the road crew, or perhaps the entire Public Works Department.  There was also some sentiment that such a presentation would be somewhat empty in the context of years without a raise.  A city consultant named Cliff Richardson either said or didn't say to Mr. Granados and some of his co-workers something to the effect that the presentation "would ring hollow" in the ears of workers who'd gone three years without a raise.
            The Pre-Termination Notice accused Mr. Granados of lying when he told management that the consultant had said this.  (Ms. Padilla testified that the consultant denied saying any such thing.)
At the Termination Hearing, a second worker presented a signed statement corroborating Mr. Granados's account.
Ms. Padilla testified today that the consultant denied saying any such thing.  She denied that she believed Mr. Richardson rather than Mr. Granados because Mr. Richardson is Caucasian.  She did not articulate her reason for believing Mr. Richardson.  However, the Defense also noted that this allegation was omitted from the post-Hearing letter explaining why Mr. Granados was fired.
(I do not have a copy of the Pre-Termination Notice or the letter explaining why Mr. Granados was fired.)
Ms. Padilla denied that there was a conflict of interest in Mr. Haines, who had signed the Pre-Termination Noice, acting as hearing officer.  Mr. Haines had also been the recipient of some of Mr. Granados’s complaints.
         On cross-examination by her lawyer, Raul Carrillos, Ms. Padilla also testified that the original complaint by Mr. Cordero (passed on by Mr. Granados) didn’t specifically reference a “protected class” so as to implicate EEOC procedural requirements.  On redirect plaintiff’s lawyer, Brett Duke, showed her the letter in which Mr. Cordero said he thought Ms. Padilla’s alleged harassment of his department was because its employees were “mostly minorities and less educated.”
Plaintiff has stressed that EEOC and Dona Ana County procedures forbid the person who allegedly discriminated from being part of the investigation or meeting with the complainant.   The Defense has emphasized that Ms. Padilla testified, and that Mr. Cordero testified, that everything was fine after a meeting among Ms. Padilla, Mr. Cordero, and Human Resources Director Kathe Stark.  (Whether jurors will credit this testimony, in light of Mr. Cordero’s continued employment under Ms. Padilla and confessed “nervousness” about the possibility of retaliaion, is of course uncertain.)
She also testified that the reason Mr. Granados first received a performance evaluation in October 2008, after the Cordero complaint, was that the county had been working on standard forms for such evaluations.

Brian Haines testified that Mr. Granados had initially done a very good job but that his work had begun to deteriorate in unspecified ways during 2008.  He denied that Mr. Granados had complained to him of harassment or discrimination.

Former Internal Affairs Investigator Kim Stewart testified by telephone from Ecuador, where she now lives.  Ms. Stewart is the Plaintiff in a separate lawsuit against the county regarding termination of her employment.
Ms. Stewart stated that she had observed relatiaion against employees who filed dsicrimination complaints, and that Leticia Benavidez had complained to her of retaliation by management against her.   She specified Ms. Padilla and County Attorney John W. Caldwell, alleging that an attempt to censure Commissioner. Benavidez had been in fact retaliation for her testimony in an earlier case in which “She told the truth as she saw it.”  (That suit, Ramirez, resulted in payments by the county to five women who alleged sexual harassment.)
On cross-examination, the County established that it had filed a counter-claim against Ms. Stewart alleging that she improperly divulged confidential information.

Commissioner Benavidez testified and, looking somewhat chastened, denied what Ms. Stewart had said.
She denied having seen discrimination or been the subject of retaliation by Ms. Padilla and Mr. Caldwell.
She denied having said that Ms. Padilla’s motives “were questionable sometimes.”  However, she conceded that in deposition in 2012, asked whether Ms. Padilla’s motives were sometimes questionable, she had replied “Yes, I think so.”
            Asked whether Mr. Caldwell had fabricated charges or been untruthful toward her, she replied, “I can’t say yes or no.”  In her deposition she apparently had replied “Yes.”
She was also asked about a meeting with Commissioners Benavidez and Karen Perez, in which Mr. Granados has alleged that he and Dicky Apodaca raised issues of discrimination by Ms. Padilla.  Asked if Mr. Apodaca had made such complaints, she replied, “No.”  Asked if Mr. Granados had done so, she replied, “I don’t recall.”

The final witness Friday was Brenda Biscaino.   Ms. Biscaino has been employed for 23 years with Dona Ana County.  She spent the first 22 years in Human Resources, becoming a Human Resources Administrator; but soon after Debra Weir replaced Kathy Stark as Human Resources Director, she filed an EEOC Complaint against Ms. Weir.  (The complaint was not successful.  However, she alleged that proper policies were not followed.)  In October 2012, she took a demotion and moved to the Detention Center, where she now works.
Asked why she’d left, she replied, “Because I could not work with unethical individuals anymore.”
Asked if she’d personally observed discrimination toward Hispanics, she replied “Different treatment, yes.”  Asked if Sue Padilla had discriminated against Hispanics, she replied, “To a certain point, yes.”  She also complained of favoritism.
As one example of discrimination she noted that although many maintenance workers speak only Spanish, Ms. Padilla ordered that no more interviews could be conducted in Spanish.
Asked whether as a human resources administrator she had observed retaliation in the workplace, she replied, “I’d have to say yes.”
She also testified that she, like Mr. Granados, had complained to Commissioner Perez and been advised that “I would have consequences if they knew.  I would be retaliated against.”
She was asked if she had complained to Commissioner Perez specifically of Sue Padilla retaliating against her.  She testified that “My complaint was against Deborah Weir, Sue Padilla, and John Caldwell.”  When it was elicited that Commissioner Perez had replied that she would have to speak to the County Attorney (Mr. Caldwell), Ms. Biscaino stated, “That defeats the complaint, if it’s against upper management.”
On cross-examination she was asked regarding her testimony that she “felt pushed out” of Human Resources whether she had complained.  “Who was I going to complain to?” she replied. However, she conceded that she did not file any state or federal claim.
She was also asked on cross if she had once been reprimanded for falsifying a benefits application, and replied, “That’s incorrect.”  She was asked if she had been subjected to a disciplinary action for giving false information in a deposition, and replied, “No.”
Plaintiff is expected to rest Monday morning, after calling Internal Affairs Investigator Lupe Quezada and Plaintiff’s wife, Juanita Granados.
Defendant will then present its case, and may recall some witnesses and/or call the three road foremen mentioned in testimony, Ms. Weir, Ms. Perez, and others.
Jurors have been warned that the trial, including their deliberations, may well continue into Wednesday, July 3rd.
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