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.