Sunday, August 30, 2015

Lawsuit against Many of Us Crashes and Burns



Some readers will remember Rick Seeberger. Sheriff Todd Garrison was so charmed by Seeberger that he placed him high in DASO, though Seeberger had never been a cop and had neither experience nor a degree in law enforcement. DASO Deputies reported disastrous results. Morale seemed to go through the floor. The basement floor. Eventually Seeberger departed, after a public controversy.

Seeberger then sued pretty much everyone he could think of,: several DASO Deputies, County Commissioners and officials, Channel 7, this newspaper, and me. His claims were nonsense. The absence of any cognizable legal claims made one wonder about his intentions: did he think someone would pay him a bunch of money to avoid court? Did he just seek revenge on everyone who didn't share Mr. Seeberger's high opinion of Mr. Seeberger?

Any lawyer could see that he hadn't fashioned any claims a competent court would grant relief on. Suing the newspaper on a cause available only to employees? Suing a private company on a cause you can only use against public actors? Sue for defamation when the law's clear that opinions can't constitute defamation?

U.S. Magistrate Judge Gregory Wormuth has tossed the whole case – and ordered Seeberger to come in and “show cause why the Court should not find that the copy of Plaintiff Rick Seeberger’s EEOC Charge of Discrimination submitted by Plaintiffs . . . was fraudulently altered from what was actually filed with the EEOC, and, if so, why the Court should not impose sanctions under Rule 11 or for contempt of court.” That is, did Seeberger fraudulently change a key document, by checking off a critical box not checked on the original? Oops!

Judge Wormuth's 70-page opinion was detailed and well-reasoned. He looked into and cited important details a lot of judges would have missed. He understood the situation and acted appropriately.

I feel two ways about that.

Obviously I'm gratified. I took great care to write my columns accurately. I always do; and I was saying some strong things. I also believed Seeberger might sue anything that moved. He had threatened me, warning that inaccuracies would have serious consequences. His voice and facial expression seemed meant to frighten me. I'm gratified that Judge Wormuth took the time to parse out the facts, the columns, Seeberger's pleadings, and the law, then write a clear, strong opinion.

But I'm chagrined that his Honor had to do so, that the public had to pay for his time doing so, and that various parties had to spend significant sums on lawyers to fight a complaint that (in my opinion) never should have been filed. I'm chagrined that some fine DASO Deputies who had suffered through Seeberger's bizarre reign then had to worry about whether some crazy quirk in the legal system or a biased jury might someday require them to pay Seeberger. Everyone knew there was no way that should happen; but it's no fun to be defendant. We've all seen or heard of crazy results in courts.

Seeberger is interesting. To me, he seemed a mixture of con man, evangelist, businessman, and self-help guru. But he didn't belong as DASO Chief of Staff. When I was writing columns questioning Garrison's hiring of Seeberger, DASO personnel would materialize out of the woodwork wherever I went to say, “Thank you!” Sadly, he cost us a lot, in money paid to him, money spent rebutting frivolous allegations, and DASO morale. 
 
Now we can hope we're finished with him, although I do wonder how Friday's hearing will go.
If he's guilty, I hope he pays for it. Thereafter, I wish him well in his future endeavors.
                                                         -30-
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 30 August and will appear on the KRWG-TV website shortly.]

[Sometimes the law does work.  We saw it in the lawsuit regarding the municipal recall effort here.  Now we've seen it in the Seeberger lawsuit.   I hope Seeberger chooses to forget seeking revenge against our County, which paid him a lot of money, and turn his talents to good works as he continues his career.
Still, the title the Sun-News gave the column could be a little optimistic: "An end to the sad, strange DASO Seeberger saga."   It captures the tone of all that's happened, but I think some state court litigation between Seeberger and some of the deputies may linger; theoretically, some defendants could sue Seeberger for abuse of process or malicious prosecution; and Seeberger could appeal, although appellate courts are likely to be less patient with causes of action that come nowhere near the legal mark, and could order him to pay some defendants' fees responding to what they might well term a frivolous appeal.  (As one example of the nature of the claims, I just glanced again at the opinion and realized Seeberger had a cause of action in there for "Cruel and Unusual Punishment.  The opinion briefly quoted from long-standing precedent that “The Eighth Amendment, for its part, can only be invoked by persons who have been convicted of crimes” and noted that since Seeberger had never been convicted or incarcerated, he didn't qualify.  The opinion had similarly quick and cogent answers to most of Seeberger's claims.  In my view, most if not all of those claims could not have been brought in good conscience if someone had researched them even briefly.)
I hope it's over, for Seeberger's sake as much as everyone else's. ]





Sunday, August 23, 2015

Urgently Needed: Mental Health Faciity

A few years ago during a radio discussion of mental health, we realized that each of us (two hosts and three guests) had a close relative with a serious mental health problem. Most readers can likely say the same.

So why can't we face the problem of mental health and deal with it?

Sure, the State's dubious decision to close mental-health facilities in southern New Mexico exacerbated the problem. (Contacting a potential replacement from Arizona even before receiving a report that appears to have vastly exaggerated the presence of fraud, then closing the facilities, was a terrible move, worthy of investigation, but that isn't my point here.) La Clinica Familia is stepping in, and deserves all our help and support.

Sure, local hospitals try to duck the problem; but that's not the issue either. Nor is the plan for a new hospital to skim off the profitable cream (cardiac and orthopedic problems) and steer clear of the messy mental-health problem.

We and our local governments must tackle this problem realistically but creatively.

I talked this week with a fellow who's pushing for just that. Jack Eakman (pronounced “Eckman”). After a successful business career working for a health-care provider, Jack retired here because he liked Cruces better than anywhere else he'd been.

But Eakman's seen “a lot of activities caused by behavioral health symptoms” such as child and spousal abuse, domestic battery, DWI's and addictions. These appear disproportionately frequent for the population here.

Unlike most of us, he's been doing something about it – as his health-care career had equipped him to do.

He says we should analyze the size and nature of the problem here, available resources, estimated annual operating costs and revenues, and other factors a mental-health care provider would want to know before deciding to open a facility here. Financial viability is important, but “it has to be about the mission.”

Jack is guardedly optimistic that the problem can be solved; but it won't be easy. The proposal must be “innovative,” both to gain the support of the State and to appeal to a capable provider. But although he calls it “outrageous” that we've not only had inadequate services but have been “sending profits out of state to investors that could be used here to improve access and services and reduce costs,” as Jack looks forward he's optimistic that the State would support a creative proposal.

Eakman says Cruces should be an attractive place for a provider to hire or relocate hundreds of professionals. He cites our quality of life and low cost of living; the university; cultural and recreational opportunities; and a major airport nearby.

He's also “a fan” of La Clinica, noting that they've been assembling an experienced team even without yet having additional resources. In particular, he likes “their openness in the way they confer with another professional, and discuss the things they're doing, how they're seeking solutions, and where they see challenges. There's a complete absence of drama. They're succinct and clear about how they're going to go about things.”

But the County and City must take charge. We need to attract a mental hospital facility. Emergency rooms lack the training – and the commitment to this particular service. “Acute mental health is ugly, and no one wants to deal with it,” Jack says.

Though I often think we have too many consultants, we'll need one for this. Someone who can help craft a truly strong proposal. Someone who knows providers' needs, speaks their language, and has industry contacts.

Jack will keep pushing. “I'm not giving up until this gets a solution. I'm not going away,” he told me. Good!
                                                           -30-
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 23 August, and will appear later today on KRWG-TV's website as well.]
[A particular aspect of the problem discussed in the column is the relationship between mental-health care and the judiciary -- and prisons.  Those who pause for thought at the cost of trying to address the mental-health problem should acknowledge how much we're already spending to feed and house mentally-troubled people in our jails and deal with them in our courts.  Jails don't generally solve mental-health problems, so we're also dealing with whatever problems the same folks create when they're released.   Some subset of those folks, if diagnosed properly and treated in the first place, might not end up in jail.   We're something like the family that keeps putting more and more buckets around the house to catch rainwater because fixing the roof costs money -- but we're going broke buying buckets and spending half our time placing them in all the right places and emptying them.]
[I enjoyed talking with Jack.  He's straightforward and thoughtful.  And brings to this issue the kind of business savvy most of us couldn't.]

Sunday, August 16, 2015

Assessing the Deal with Iran


Is the Iran deal good or bad?

As best I can tell it's good, though obviously imperfect.

A friend, an Israeli political scientist, put it well: “I think it's better than any of the alternatives. Sometimes instead of thinking about what's good and what's bad, you have to think about what's bad and what's worst. This was the least bad option in an unappetizing set.”

Others note that we won't really know if it's good or bad for many years.

Republican commentator (and adviser to four Presidents) David Gergen provides a reasonable view based on knowledge. Gergen has discussed the deal with many generals and to everyone from Hillary Clinton's young national security adviser to Henry Kissinger.

In essence, we were on course either to bomb Iran or to live with Iran getting nuclear weapons – and most generals preferred living with the latter, as we did with the Soviets, rather than war. Although it was an international deal, Gergen credits Obama for attempting diplomacy. He calls the resulting deal John Kerry's “crowning achievement.” The deal's not perfect; but “we bought ten years.” (By contrast, Gergen criticizes the planlessness of the Administration's handling of ISIS and Syria.)

Although Iran is theoretically committed to never developing nuclear weaponry, many of this deal's provisions expire in ten or fifteen years. IF AT THAT TIME Iran remains determined to develop nuclear weapons, we may face a choice like the one we have now: bomb Iran (violating international law and prevailing international opinion) or live with a nuclear-armed Iran.

Meanwhile there's a fair basis for guarded optimism. Younger Iranians are modern and mostly positive toward the U.S. At one anti-U.S. rally at which an Iranian loudly shouting the obligatory “Death to America” paused to lean over and ask a U.S. reporter “How'd the Yankees do today?” The mullahs may ultimately go, or become mere figureheads. Iran may well prefer economic improvement to sophisticated weaponry. Many Iranians would prefer being less isolated and more a part of the modern world, although there's no guarantee that they'll have their way.

From Iran's side, the deal is tough. Yes, Iran gets back frozen funds; but only after huge decreases in Iran's centrifuges, enriched uranium, and permitted research activities. Recently a friend who knows a lot about these things repeatedly exclaimed, “Wow, Iran didn't get anything!” as he looked at the centrifuge and uranium numbers reported in The Economist.

Arguing that this agreement somehow helps Iran develop nuclear weapons is absurd. The agreement should significantly delay a nuclear-armed Iran and could help forestall that completely.

Relying on inspections, not on trust, the deal would destroy Iran's ability to develop a nuclear capability in the short term.

The nay-sayers offer no credible alternative. “Maintain economic sanctions!” they shout; but if the U.S. torpedoes the agreement, the rest of the world won't continue the sanctions; and U.S. sanctions alone aren't powerful enough. “Bomb Iran!” some urge. At this point in history there are too many things wrong with that idea to fit 'em into a column. Yet that's the only real alternative.

This is not a U.S.-Iran deal. It's between Iran and essentially the rest of the world, represented by a coalition of divergent interests we could not easily reassemble. Many top international leaders see this deal as a positive step. If we renege now, our partners won't support us.

Bottom line: in a tough situation Western diplomats seem to have negotiated – carefully and laboriously – a workable deal (159 loophole-closing pages) that improves the prospect for avoiding a nuclear-armed Iran.

Most criticism reduces to “I don't like or trust Iran.” Who does?
                                                                      -30-
[The column above appeared this morning, Sunday, 16 August 2015, in the Las Cruces Sun-News and will appear shortly on KRWG-TV's website as well.  The Commmonwealth Club interview with David Gergen is well worth a listen.  I'd earlier read a lot of writings for and against the agreement with Iran, and had written a draft of this column, but I thought Gergen's comments were particularly clear and cogent.]
[A few days after sending in the column I also read an open letter to the Washington Post from three-dozen former generals calling the deal "technically sound, stringent, and innovative"  and a news story on same.
I recommend reading that letter, but a key paragraph reads:
"There is no better option to prevent an Iranian nuclear weapon.  Military action would be less effective than the deal, assuming it is fully implemented.  If the Iranians cheat, our advanced technology, intelligence, and the inspections will reveal it, and U.S. military options remain on the table.  And if the deal is rejected by America, the Iranians could have a nuclear weapon within a year.  The choice is that stark."
No, this doesn't mean they're right; but I'd want something more than an incompetent Congress, with no significant arguments and such a deep hatred of Obama that it can't think straight, to outweigh the opinions of our national security folks and Secretary of State, the similar personnel of many other significant nations, these generals, and a lot of national-security experts, before I'd jump in opposing this thing!]

[Opponents are screaming about the potential 24-day delay in inspections; but as our scientists have pointed out, the places in question don't just melt away, we do have satellites monitoring them, and when you store or work with nuclear materials somewhere, it ain't like a bush and some dish-water soap will erase all signs.  As one observer put it:
"The system for verifying Iran's commitments is unprecedented. Iran may be able to break the rules of the deal, but it can't break the rules of physics. I have met with our experts at the Departments of State and Energy, including those at Los Alamos and Sandia National Labs. Nuclear materials give off telltale signatures, and combined with unprecedented access to facilities, Iran will be unable to hide any breaches in the agreement. The agreement requires continuous monitoring, including tamper-proof electronic seals and dedicated facilities to inspect the Iranian nuclear program. I may not trust Iran, but I do trust the science and our national labs."]






















 

Sunday, August 9, 2015

A Rebirth of Wonder -- Saying Good-bye to Fred Stern

There was a man who made rainbows.

His name was Fred Stern. Since 1999, he had lived in Las Cruces.

A lifelong artist in his mid-seventies, Fred was vibrant, imaginative, and energetic – and always excited about some new idea or project.

He made rainbows for political causes and civic events, but mostly he loved making them for children, often kids with serious diseases, and watching their joy.

Corporate clients helped fund this, and flew him around the world to make rainbows or discuss the logistics. Last year, Coke flew him to South Africa to make a rainbow in an award-winning celebration of the 20th anniversary of the first free elections there. [See pix from this event here.]

In May he wanted to make and photograph a rainbow over the full moon rising precisely as the sun set. He climbed onto the wall of friend's backyard. He fell. He was airlifted to an El Paso hospital. He had broken his neck. His daughter came to be with him. He lasted several weeks, then died.

“Well, at least he died doing what he loved,” folks said to each other. It was true, but it sounded as flat as we felt.

I was struggling with this column, trying to describe Fred as friend and artist, and his abrupt departure. Then, while randomly replaying a radio interview we'd done, I was delighted again by what Fred said and how he said it, and had to yield the column to Fred himself.

On Art, he says, “Once you start pursuing markets, once you start pursuing money, the game changes. It's got to be about passion, and vision.” Art is the process of creating, not anyone's evaluation of what's created. “Art really, if it's anything, if it really exists, is a verb, not a noun.” He added that the second worst thing for an artist is believing a negative review – and the worst is believing a positive one.
On the difference between how kids and adults see rainbows: “When you talk about what we lose, going into adulthood, the concept of wonder is critical. The one thing that kills our sense of wonder is the things we know. It's impossible to make a rainbow, it's impossible to get to the end of the rainbow. We know all these things, and as a result we don't see them.”

“If I were ever going to be a superhero I would like to be Wondering Man. Say something happens in your life, a negative thing. Or something we see as negative. But if you stop for a second and say, 'I wonder what the real meaning of this is,' then suddenly it opens up possibilities.”

“I traveled for four months last year, after two years of intense work. And I got into saying 'Yes' to every opportunity that came up, no matter how much chatter went through my mind about cost and 'Is this worth doing?' or “Is this crazy?' It took me to incredible places. I wound up traveling to places that I had to get there to find out why I was going. Because why you go never turns out to be the real reason. When we're out of our normal everyday context we start wondering, and all kinds of possibilities open up.”

“Adults never go under the rainbow. Only kids do.”

“At these cancer camps, the kids are always standing under the rainbow with their arms out because they're standing in the center of a full circle rainbow that begins right above their heads and ends at their feet. Their arms are stretched out because they see their arms bathed in color.”

Thanks, Fred. We miss you.
                                                     -30-

[This Sunday column appeared in the Las Cruces Sun-News this morning, 9 August 2015m and will appear today on KRWG-TV's website under "Local Viewpoints."  For more on Fred, check out his website, which has photos of his 1995 world-peace rainbow over the U.N. and his 2014 rainbow over South Africa's Burning Man.]

Perhaps fortunately, letting Fred's own words take over the Sunday column pushed to the side more personal reflections.  I will say that in his seventies Fred not only retained his passion for and commitment to art, and his sense of wonder, but was also periodically as excited as a teenager about a new love relationship, but saddened whe they didn't last.  We were sad for him on that score, and sad with him.

"Wonder" is something I'd thought a lot about and Fred and I had discussed over coffee.  Listening again to our radio discussion of "wonder," and wishing I could reproduce the quality of wonder in Fred's voice as he discusses the kids reaching the end of the rainbow, I keep thinking, as I thought that day, about the Ferlinghetti poem which I mistakenly recalled as "A Rebirth of Wonder" but which is actually entitled  "I Am Waiting.I can't recall whether Fred and I ever discussed it, but he surely knew the poem.  

I AM WAITING
I am waiting for my case to come up   
and I am waiting
for a rebirth of wonder
and I am waiting for someone
to really discover America
and wail
and I am waiting   
for the discovery
of a new symbolic western frontier   
and I am waiting   
for the American Eagle
to really spread its wings
and straighten up and fly right
and I am waiting
for the Age of Anxiety
to drop dead
and I am waiting
for the war to be fought
which will make the world safe
for anarchy
and I am waiting
for the final withering away
of all governments
and I am perpetually awaiting
a rebirth of wonder

I am waiting for the Second Coming   
. . .
and I am waiting
for the Grapes of Wrath to be stored   
and I am waiting
for them to prove
that God is really American
and I am waiting
to see God on television
piped onto church altars
if only they can find   
the right channel   
to tune in on
and I am waiting
for the Last Supper to be served again
with a strange new appetizer
and I am perpetually awaiting
a rebirth of wonder
. . . I am waiting
for the meek to be blessed
and inherit the earth   
without taxes
and I am waiting
for forests and animals
to reclaim the earth as theirs
. . .
and I am waiting for lovers and weepers
to lie down together again
in a new rebirth of wonder 
. . .  I am anxiously waiting
for the secret of eternal life to be discovered   
by an obscure general practitioner
. . . and I am awaiting retribution
for what America did   
to Tom Sawyer   
and I am waiting
for Alice in Wonderland
to retransmit to me
her total dream of innocence
. . .
I am waiting
to get some intimations
of immortality
by recollecting my early childhood
and I am waiting
for the green mornings to come again   
youth’s dumb green fields come back again
and I am waiting
for some strains of unpremeditated art
to shake my typewriter
and I am waiting to write
the great indelible poem
and I am waiting
for the last long careless rapture
and I am perpetually waiting
for the fleeing lovers on the Grecian Urn   
to catch each other up at last
and embrace
and I am awaiting   
perpetually and forever
a renaissance of wonder

It was a favorite when I was young, in part because I have always honored (and sought to recapture through travel and other adventures, as Fred did) that sense of wonder that we do lose as we learn our way around.  It is a good part of why I left a successful and remunerative law practice in a big firm in San Francisco to wander around Asian countries where I'd no clue what was up the next alley or whether the musical sounds of the Chinese or Thai language was a discussion of something magical or just discussions of a malfunctioning washing-machine or a cheating husband.




Wednesday, August 5, 2015

Roadrunner Follies

There's always something!

Around mid-day today the roadrunner, who's been around a lot this season, determined that he needed a shady spot to hang out for awhile.  He chose the feed-block, which is kind of a favorite hang-out for white-winged doves, quail, thrashers, and smaller birds who tend not to hang out with the roadrunner.  (In particular, I noticed that although a bit earlier we'd spotted a huge family of quail, most of them very small young'uns, picking up the seeds we scatter near the feed-block, only doves were visible just now -- and they gave Mr. Roadrunner (or Ms. --- they look quite alike, and behave alike except during mating season) plenty of room.  The quail know only too well that roadrunners find baby quail delicious.

By the way, if you wonder about the bright orange spot behind his eye, the Pima say he acquired it trying to help a friend: A long time ago, a woman had a pet rattlesnake, and when it died she had no fire to cremate her pet.  The roadrunner offered to bring her some fire, and flew up to the sun (a four-day ) and got some, but on his way home he flew through a thunderstorm and was struck by lightning, creating the orange spot.  

Mr. Roadrunner didn't give a damn about the white-winged doves' interest in the feed-block.
He stood around, often grooming himself, indifferent to any inconvenience he was causing anyone.  Of course I watched this drama, wondering whether anything interesting might happen.  (A few weeks ago we watched smaller birds try for a half hour to chase a golden eagle off our property.  [See "Being an Eagle Ain't All Fun, I Guess", posted 3 July.])

White-winged doves milled about
unhappily.
Even a small rabbit, who'd wandered over, intending to perch exactly where Mr. Roadrunner stood, delicately broached the possibility that the grooming could be done elsewhere.  They discussed it at length, quite animatedly, with Mr. Roadrunner leaning further and further down toward the rabbit; but Br'er Rabbit apparently proved unconvincing.

But like a peasant petitioning the King, the rabbit remained. 
Eventually Mr. Roadrunner -- perhaps aware that I'd been watching him so long my own lunch was being delayed -- wandered off.

[See also The Courting of Roadrunners posted August 23, 2011; but it looks as if the video on that post may not be working any more; and for more information, James W. Cornett's "The Roadrunner" is a thin, useful book with some neat pictures, including a couple from Roadrunners' battles with rattlesnakes.  It has annoyed me that recently the roadrunner seems to be AWOL when rattlesnakes show up, and I've had to deal with them when I'd much rather photograph him doing so.]

Sunday, August 2, 2015

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.]

Sunday, July 26, 2015

More Sunsets and Rainbows


The other day we had another glorious rainbow.  As we photographed it, thunder sounded all around us and the wind nearly knocked us over.  We were also getting rained on lightly.  And we thought of our recently dead friend, Fred Stern, who made rainbows.  The rainbow itself looked not unlike the one used on the blog's masthead -- or whatever that's called.

We got better than two-tenths of an inch during the 24-hour period.  0.235 inches, by my examination of the rain gauge Sunday morning at 6:30.   Not a lot, some places.  Wonderful here.

The rainbow inspired me to transfer a few other recent images from camera card to computer drive and play around with 'em a little:
A favorite: just a graceful hesperaloe in late afternoon
It looks all right untreated, too
And a recent sunset










which I preferred as a somewhat moody painting.


We get a lot of visitors all day

and they strike a variety of nutty poses.



Bumblebees

. . . enjoy Bird of Paradise blossoms












And like the acanthus outside my office window, too.








but i couldn't decide which treatment i liked better











The previous evening I sat on a bench watching the sunset for a long time.

It was clean and clear, also worked as a painting, I thought. 


Meanwhile, above the ocotillo the crescent moon looked down from just above a cloud catching the sun's last rays.