ON THE CITY ATTORNEY’S RESPONSE TO ADVERSE PUBLICITY ABOUT THE CITY’S IPRA VIOLATIONS

      You can thank Las Cruces City Attorney Brad Douglas for prompting me to write this blog.  His comments in last week’s The Bulletin, discussed below, are an example of corruption in the conduct of ranking officials.  "Corruption" is a word usually associated with the transfer of money or favors for nefarious purposes in government or business.  Most people think of bribes.  The word also applies to whoever or whatever erodes principles, standards, or values.  People, especially public officials, who lie corrupt truth or who break promises corrupt trust.  Such people usually justify lies or broken promises on the basis of their commitment to a cause—ends justifying means.

My example of dishonesty for cause is Douglas’s response to the settlement of an IPRA case which I brought against the City.  As reported on The Bulletin website on 22 August (but unknown to me until after my 23 August blog appeared), Douglas offered the paper the assurance—in context, an empty one—that the City is "committed to transparency."  He added, "This case included a small number of documents that were arguably overly redacted per IPRA guidelines.  When we discovered this, the City voluntarily produced those documents and came to a resolution of this case."

 

Everything which Douglas says in these few words is an assault on truth by a lawyer’s spin.  Bluntly, if there were any truth to what he says, there would have been no lawsuit, no City admission of violating multiple IPRA requirements, and no $150,000 in costs, including $21,845 in penalties, paid by the City.  The "small number of documents" were some three dozen documents withheld or redacted, not including nearly 500 emails secretly retained.  The documents were not "arguably overly redacted" (Douglas did much or all of the redacting); after my lawyer and I challenged the redactions, the City agreed that two-thirds of them were unjustifiable.  The City "discovered" nothing, 'voluntarily produced' nothing, and failed to describe the documents withheld or redacted as IPRA requires; the court directed the City either to provide the documents or to provide IPRA-compliant descriptions and justifications for withholding or redacting them.  The City preferred a resolution rather than a court decision, which would have been public and embarrassing, and thus made what my lawyer says is an unprecedented offer of $85 out of $100 dollars per diem in penalties for the delay in compliance.

 

If his spin on the truth is any indication, the word of this City Attorney is not worth much.  The cause by which he rationalizes his assault on truth is his desire to mitigate the reputational damage to the City because City officials deliberately violated the law, the Inspection of Public Records Act, at great cost to its citizens.  The City is entitled to defend itself, but the City Attorney is not entitled to misrepresent the truth to the public.  In more cases than mine, the desire to avoid adverse publicity about their corruption is a major prompt of corruption in City officials.

 

The corruption of City officials reflects on City governance, particularly by the members of City Council, who become complicit by indifference or tolerance.  In my experience, City officials have not been honest or insisted on honesty in others.  That experience includes my complaint about five false code violations tainting the integrity of ACO officers, IA officers, and three police chiefs; the dishonesty of a City Manager and various Public Works personnel; and employees in the Law Office and the City Clerk’s office involved in my IPRA case.  And I am only one citizen in Las Cruces.

 

I recall Police Chief Miguel Dominguez’s testimony before City Council in which he stated that Las Cruces citizens do not trust the police; to my point, not one Council asked why.  Issues associated with corruption in Las Cruces are pervasive.  My hope is that there are some citizens concerned with good government who will undertake an anti-corruption campaign against current office-holders and ranking officials to replace them with a public-serving government well managed, technically competent, and fiscally responsible.

CROOKED CITY OFFICIALS COST LAS CRUCES $150,000 FOR IPRA VIOLATIONS

       Personal pique and professional pettiness help explain why the former City Attorney and current City Clerk chose to play hard-ass with me at the risk of litigation, sanction, and costs paid by taxpayers’ dollars.  By violating the law about public information, they prompted a lawsuit costing Las Cruces about $150,000, including $21,845 in penalties paid to me as Plaintiff.  These costs did the City no good; they will not even prompt City officials to obey this law.  However, my award will do some good because I donated $20,000 to Camp Hope of the Community of Hope (the difference kept for taxes).  If City officials had obeyed the law, the City would have had $150,000 more to alleviate the problems of the homeless.  It certainly should not expect successful plaintiffs like me to make up some of what the City might have provided this or some other worthy charity.

 

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It all began on 22 May 2023, when, during a City Council meeting, I heard about an advisory committee operating unknown to the public and seemingly unknown to some Councilors.  Councilor Yvonne Flores feigned surprise to learn of its existence, for, as I later learned, she had received a 10 December 2020 notice of Mayor Ken Miyagishima’s charter creating the Public Safety Select Committee (PSSC), as had all other Councilors.  (PSSC members have included Mayors Miyagishima and Eric Enriquez; Councilors Gabe Vasquez, Kasandra Gandara, and Tessa Abeyta; City Managers David Maestas and Ifo Pili; City Attorneys Jennifer Vega and Linda Samples; Police Chiefs Miguel Dominguez and Jeremy Story; Fire Chiefs Eric Enriquez and Jason Smith; City Clerk Christine Rivera; and others by invitation.)  Operating in secret, the PSSC likely relied on violations of the Inspection of Public Records Act (IPRA) to conceal likely violations of the Open Meetings Act (OMA).  Twice asked whether PSSC still operated, Mayor Enriquez and all Councilors refused to answer; at a minimum, secrecy and rudeness prevail in this City Council.

 

Curious about a secret committee, I filed an IPRA request on 25 June 2023 for “all documents in whatever media or format related to the Public Safety Select Committee since 6 January 2020.  Such documents include, but are not limited to, meeting emails and other social media messages among committee members, announcements, agendas, notes, minutes, memorandums, reports, and recommendations.”  IPRA requires that the City either release the records or, if some records are withheld or redacted, identify the redactor and provide a description of the record, including the date, author, audience, and abstract of content.  The purpose of this information is to enable the requester to ascertain the likelihood that the withholdings or redactions are justified.

 

In response, the City withheld 2 records and released about 80 records: 45 emails and 35 agendas, notes, and minutes, some redacted by then Assistant City Attorney Brad Douglas.  However, it did not comply with IPRA requirements; it failed to describe the withheld records and only partly described the redacted records.  Months later, on 3 November 2023, I filed a supplemental IPRA request reminding Rivera that the City had not released PSSC emails to non-PSSC members.  It had not disclosed—apparently concealed—about 480 such emails.  Of these, it withheld 40 records and released 25 records redacted by Rivera, who again provided no descriptions of these 65 records.  After a court directive and ensuing negotiations, the City released some withheld records, revealed some redactions, and completed all descriptions.

 

The City Attorney and the City Clerk are responsible for complying with IPRA requirements.  Samples was responsible for ensuring that records claiming an attorney-client exemption were justified in claiming it, but many claims were not justified.  In turn, Rivera is responsible for ensuring that records withheld or redacted meet IPRA requirements, but they were not met in many instances.  Her failure is notable because the City once touted her as one who “ensures that the City complies with hundreds of IPRA requests….  The City Clerk is often the first line of communication with City residents and has proven to be the friendly and helpful point of first contact with the public.”  Despite this glowing testimonial, she has been grudging or non-responsive in performance and discourteous when dealing with my IPRA requests.

 

Samples and Rivera had many opportunities to comply with IPRA and avoid litigation.  Before I filed my case, my lawyer invited Samples to meet to discuss IPRA violations.  But she, who touts herself for problem-solving and preemptively alleviating liability issues, replied curtly, “The City disputes the allegations”—and that was that.  On several prior occasions, I had emailed Rivera to provide her with copies of the IPRA requirements and to urge compliance, but she did not have the courtesy to reply.  I once called to ask her to remedy deficiencies in her responses, but she refused to speak with me.  In short, Samples and Rivera knowingly and deliberately refused to comply with the law, and went on to make an unforced error in choosing to play hard-ass with me.

 

Not satisfied with these responses, I initiated legal action.  Because of her violations of the law, I named Rivera as well as the City as Defendants in my lawsuit.  After legal setbacks, the City’s legal team informed City Council that my case would prevail.  The City rendered a final Third District Court hearing unnecessary by admitting to IPRA violations and paying Plaintiff’s costs and its penalties.  Rivera, having gambled with City money, lost the game and cost the City $150,000 because she chose not to obey the law.

 

Nevertheless, Rivera has not learned from this experience because she repeated the same IPRA violations in response to a more recent IPRA request even while my case was before the court.  I requested Samples’s email advising—so I am told—City Council members and other City officers not to communicate with me because of my pending litigation.  Rivera denied the request on the basis of attorney-client privilege and again failed to describe important details about the document: date and audience.  The City Attorney has not produced this email or issued another correcting Samples’s advice.  Although she has violated the law repeatedly and incurred costs for the City, she is not likely to face consequences, for the City Manager and the City Attorney prefer protecting to penalizing those who break the law and waste taxpayers’ money.  The result: the City will continue to employ a City Clerk who is a crook incurring costs to the City.

 

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The obvious question is why the City did not obey the law.  One answer is that government leaders act on impulse according to their likes and dislikes—the petty politics of personality—the law be damned.  I am not their favorite; I am an outsider and a critic.  Their behavior, intended to convey their dislike of me and annoy me in this and other matters, has failed to do so.  Instead, it either amuses me or appalls me to think that they treat other citizens critical of their official conduct shabbily.

 

Another answer is that government leaders constitute a special-interest community whose members protect one another even if it means tolerating or abetting illegal conduct and financial waste.  Rivera acted to protect government colleagues from the discovery of some of their OMA violations: former Mayor Miyagishima, retired; former Councilors Gandara and Abeyta, recently defeated in their runs for office; and former Councilor, now Congressman Vazquez, currently running for re-election, as well as Mayor Enriquez.

 

Yet another answer is that they do not think that anyone will hold them accountable.  They are not concerned that Inspector General Charles Tucker, a milquetoast chosen to give the public the appearance of accountability, will pursue any waste, fraud, or abuse linked to high-level incompetence or corruption.  Nor are they concerned that citizens will protest their conduct; culturally conditioned political inertia enables government personnel to be arrogant, scornful of citizens, and defiant of laws like IPRA and OMA which are intended to empower an informed citizenry in a democratic society.

 

The correct answer is all of the above.  For this reason, better government—not to say, good government—has little or no chance in Las Cruces.  Government leaders lack integrity, a commitment to constituent as well as community service, and the essential values and principles of good government, including transparency and accountability.  Instead, they prefer the easy, crowd-pleasing hypocrisy of professing those values and principles to the hard, selfless demands of practicing them.  So they will continue to incur the costs of their dereliction of duty as evident in illegal conduct by City employees and settlements subsidized by taxpayers.

TWO NOTES: GRT TAXATION & J. D. VANCE’S REMARKS ON PROSPERITY AND VIRTUE

City Council placed a proposal to raise the Gross Receipts Tax (GRT) in Las Cruces on the November ballot.  The proposal has advocates and adversaries with predictable arguments.  Advocates want increased or enhanced services; adversaries either want little or no change in those services or want no additional business costs, most of which would be passed along to consumers.

 

My argument opposing the GRT proposal is different.  City Council should not ask citizens to raise GRT rates so long as it squanders money raised at current rates, uses GRT revenues to subsidize wasteful spending, refuses to make reforms to reduce costs, and refuses to require the City Manager to exercise fiscal and managerial discipline within his administration.  The proposal views companies and citizens as credit cards or cash cows.

 

Item 1: Las Cruces wastes money on self-insuring itself for settlements of cases of police misconduct.  Insurers refuse to issue policies at all or at affordable premiums because of the frequency and magnitude of such settlements in Las Cruces.  In a recent four-year period, those settlements came to over $12 million dollars.  The alternative: better policing and polices with premiums likely in the hundreds of thousands.

 

Obviously, Las Cruces would be insurable if the frequency and magnitude of settlements were small.  They are not, for two reasons.  One, the Las Cruces Police Department has long lacked professional discipline and has not been held accountable.  The history of police misconduct points to a history of failed LCPD leadership, policy enforcement, training, and recruitment.  It is long since time for the LCPD to stop talking about its professionalism (P.R.I.D.E., really?) and start acting professionally.  Whether Police Chief Jeremy Story will even try to improve the quality of policing is a question.

 

Two, City Council permits the LCPD to remain undisciplined and unaccountable.  As I blogged (22-11-30), it accepted the City Attorney’s advice to deal with police misconduct by making settlements rather than undertaking police reform.  In other words: pay a pound for cure rather than an ounce for prevention.  Accordingly, it refuses to act to improve the quality of policing and thereby reduce incidents of police misconduct and ensuing settlements, and it has failed to make LCPD improvements a priority for the City Manager.  Worse, it has been so irresponsible that it has vigorously opposed suggested reforms, not least a reasonable citizens’ proposal for a citizens’ police review board.

 

To this day, City Council prefers to tax citizens to pay for settlements which subsidize police misconduct—instead of avoiding unnecessary taxes by undertaking police reforms to improve public safety and city policing.  Or it might let the responsible parties pay: it might consider requiring LCPD officers to self-insure themselves as a condition of employment.  Individual self-insurance would give police officers a financial incentive to act professionally or lose their insurance and their job.  In any event, the proposed GRT increase should be rejected to send a message to City Council: shape up or ship out.

 

Item 2: City Council is equally indifferent to ineffective, expensive public works projects.  It tolerates technical and managerial incompetence—project failure, wasted resources, environmental damage—on a large scale.  As a result, it squanders taxpayer money and thereby reduces funds for social programs which it supports at levels tens of thousands of dollars lower than it could.  The reason: City Council cannot muster the gumption to direct its one employee, the City Manager, to demand bang-for-the-buck performance from department heads and base their evaluations on that performance.

 

An outstanding example is the continuing failure of a large flood-control project by the Public Works Department under David Sedillo.  Years ago, PWD held public meetings to explain an over-designed, over-priced plan; ignored citizen input for a simpler design at lower cost; then adopted and executed a different, over-designed, over-priced, three-phase plan.  The first try at Phase 1 washed out after the first heavy rain; the second try extending the work of the first try washed out after the first heavy rain; the third try extending the work of the second try washed out after the first heavy rain.  About $750,000 worth of wash-outs later, PWD repeated its traditional management strategy in such cases: fund no remedial action, abandon the project, let site degradation continue, the city’s environmental policies be damned.  Every heavy rain causes more washouts and more environmental damage.  City Council responded not only by ignoring wasted resources, site damage, and failed PW leadership, but also by choosing Sedillo as a finalist for City Manager.  City Council’s selection principle: you fuck up, we move you up (and let the taxpayers pay up).  Again, the proposed GRT increase should be rejected to send a message to City Council: do the job or quit.

 

With City Council given to wasting money and the City Manager doing nothing to ensure fiscal and managerial responsibility, and efficient operations, a vote for the GRT is a vote for elected officials and their sole employee to oversee the waste of ever more money.  City Council should direct the City Manager to find the revenue which it wants from the increased GRT rate ($11 million annually) in efficiencies (about 2% of the current budget $596 million) from capable management and competent execution.  (Perhaps Inspector General Charles Tucker could suggest some targets for savings.)

 

 

The word “weird” is having its day, and justifiably so.  The views of Senator (R, OH) and Republican Vice-Presidential nominee J. D. Vance merit its use.  His “Foreword” to Kevin Roberts’s Dawn’s Early Light did not surprise me with its blunt statements of conservative goals.  But one was weirder than weird: “create the material circumstances such that having a family isn’t only for the privileged.”  Everyone but Vance, author of Hillbilly Elegy, knows that the unprivileged also have families, often large ones.  Does not the old adage go, “the rich get richer, and the poor get children”?  Vance’s view is simply ultra-weird in its detachment from past, present, and likely future reality.  And given his professed concern about families, his ignorance about them gives the lie to his claim.

 

The surprise was a fundamental principle underlying many of his views.  According to Vance, “Roberts is articulating a fundamentally Christian view of culture and economics: recognizing that virtue and material progress go hand in hand."  (I think that Jesus would disagree, but then Jesus was not a Christian.)  Vance may or may not be aware that this “Christian view of culture and economics” is not new; it goes back in America’s history at least as far as Plymouth Rock, 1620.  It is the Puritan view which deems that those who are prosperous are also saved.  Today’s shorthand: rule by the rich, who, by virtue of their wealth, think themselves morally and politically superior to the rest of us, thus fit to rule us.  (The counter is Dorothy Parker’s quip “If you want to know what God thinks of money, just look at the people he gave it to.”  Look at Elon Musk.)

 

As I know from teaching early American literature (the Colonial Period is omitted from the English Common Core), the Pilgrims, the term given to those Puritans traveling far on a religious pilgrimage, were accomplished in many fields.  Their motive for leaving England for America, however, was to enjoy freedom of religion for themselves, not, as is often assumed or forgotten, for others as well.  So church elders punished, imprisoned, or expelled from the Massachusetts colony, dissenters and disbelievers, Anne Hutchinson being the most famous.

 

Puritan tendencies remain those of their theological and political descendants, today’s Christian fundamentalists and MAGAloids who constitute Trump’s base.  Vance’s statement, whether he knows it or not, implies inflexible social stratification, intolerance of “others,” and tendencies to rigidity, coercion, and violence.  As late as 1692, Puritans burned witches.  There is no reason, three-and-a-quarter centuries later, to expect Puritanical tendencies in American politics to be any more enlightened or charitable under Trump, his associates advocating Project 2025, and his MAGAloid base.

REVISITING THE "DEPLORABLES"

       In the course of her 2016 campaign for the presidency, Hillary Clinton committed the politically grievous and electorally unforgivable error of calling those who exhibit rude, vulgar, indecent, disgusting, and violent language and behavior as “deplorables.”  But she was right.  I am not alone in thinking that the language and behavior of the MAGA crowd are offensive. 

America has always had its share of deplorables, but they have not always been in evidence.  Their presence and visibility have been variable, depending on circumstances.  When and where pressures for respectability, that is, socially sanctioned middle-class language and behavior, are dominant, deplorables are less visible.  The enforcers of respectability, always middle-class respectability, have been the family, public schools, and churches or temples.  The long-standing exception which proves the rule has been the Ku Klux Klan, which has often had the support or involvement of “respectables” in middle-class communities in which Lost Cause sympathies prevail.  The more recent emergence of fundamentalist Christian denominations as political activists and ardent supporters of a man immoral and unmoored shows that the weakening of this triad of institutions, concurrent with the hollowing out of the middle class, has loosened the norms of what is acceptable in society.

 

Today, deplorables include citizens in all classes and in all locales, not just those in Dixie, who also harbor KKK-comparable racist, misogynist, antisemitic, and sometimes anti-Catholic attitudes and beliefs.  Their numbers include many who have graduated from elite universities, notably Harvard and Yale law schools—I think of members of Congress and state governors in the Republican Party.  Deplorables, particularly in the Deep South and Appalachia, are impolitely called “white trash.”  But they have flourished elsewhere, as in South Boston, MA; Cairo, IL; and Coeur d’Alene, ID.

 

For nearly a decade or so, the Deplorable-in-Chief, Donald John Trump has given deplorables permission to break the restraints of respectability.  A bigot from childhood and misogynist since puberty, Trump has exhibited all the characteristics of their type.  Those characteristics begin with resentment of their opposites, the “elites,” those whom they deem better—in education, speech, manners, and social standing—than they; those possessing everything better than what they possess—money, homes, cars, clothing, careers, and vacations—; and those seen as excluding or denying them the benefits of elite-dom.

 

Trump appeals to the deplorables because of his perceived similarity to them.  They see him as shunned by and resentful of elites, despite his fame and fortune.  They see him approving or disapproving of people, things, or ideas as they please or displease him at a given moment, especially his scorn or distrust of expertise and experts.  They share his bullying rhetoric which attacks opponents by name-calling, insults, slanders, mockery.  They see him cutting corners, operating in the dark economy, cheating on taxes, cheating on women, acting the macho-man.  They sense his ignorance, immaturity, impulsiveness, irresponsibility.  They embrace Trump because he resembles them.

 

In a recent example, Trump demonstrated many of these characteristics in an account from The Hill, which I revise and shorten.  A group of anti-Israel protesters outside Union Station in Washington, D.C., burned an American flag in anger about the war in Gaza.  In response, Trump advocated a one-year jail sentence for those who desecrate the American flag; he scoffed at those who reply that criminalizing flag-burning is illegal.  “Now, people will say, ‘Oh, it’s unconstitutional.’  Those are stupid people. Those are stupid people that say that,” the former president continued. “We have to work in Congress to get a one-year jail sentence. When they’re allowed to stomp on the flag and put lighter fluid on the flag and set it afire, when you’re allowed to do that — you get a one-year jail sentence, and you’ll never see it again.”

 

This response is what many people have come to expect from Trump.  He dismisses the Constitution.  He attacks unidentified “people” and slanders them as “stupid,” not once, but twice.  He describes the flag-burning in terms meant to arouse strong feelings.  No one expects Trump to offer a nuanced legal disquisition on the subject, but everyone has the right to expect a former president and current candidate to articulate a sensible statement on a complex subject in an attempt to justify legislation penalizing flag-burning as an exception to, not a rejection of, the Constitution.  But Trump is incapable of nuance or cogency; if he attempted even cogency, he would collapse into incoherence.

 

Deplorables are no better in situations calling for discussion of issues, not one-sided diatribes.  A little reverse socio-psycho engineering explains the make-up of deplorables and their inability to engage in rational discourse.  Set aside their ignorance and lack of example, experience, or education in the dynamics of mature discussion.  Consider their compound of bigotry—racial, gender, religious, ethnic—and resentment.  Both arise in reaction to their sense of inferiority or insecurity.  Their sense of inferiority manifests in a compensatory presumption of pseudo-superiority—Trump always describes himself as extraordinary or superlative in all things—and a pursuit of attention—Trump seeks the camera or the microphone at every opportunity.  Their sense of insecurity manifests in rigidity, efforts to control others, and bullying with anger, bluster, and aggression.  They are losers, know it, come by their sense of inferiority and insecurity for good reason, and try to hide it.  Their identification with Trump is a sorry attempt to prop up fragile egos.

 

Those who encounter deplorables—the MAGA fanatic in a supermarket, the crazy family member at Thanksgiving dinner—usually and sensibly try to avoid or escape them or to change the subject.  Anyone who is trapped or feels compelled to respond can do so only if they are willing and able to control themselves and not react in kind.  First, stay calm and be polite.  Second, disregard whatever is irrelevant to the topic.  Three, stay on topic.  If your opposite refuses to relent, then politely excuse yourself from further discussion.  Four, remain cool to any inflammatory reactions.  Remember this consolation: the first person to lose his or her temper has lost the argument.