[Editor's Note: This is part 5 and the final article of a multi-part series of articles from Grant County Commission meetings the second week of February.]
By Mary Alice Murphy
The work session of Feb. 9, 2021 and the regular meeting on Feb. 11, 2021 of the Grant County Commission featured long discussions about a resolution to oppose House Bill 4, which is titled the NM Civil Rights Act.
[Editor's Note: The bill, passed out of two committees, as an amended version, and passed in the House of Representative 39-29, and is now before the Senate Health and Public Affairs Committee.]
County Manager Charlene Webb, at the work session, said she had provided a substitute bill to the commissioners that had passed out of the House Judiciary Committee. "It still continues to be a bad bill for all local governments, including counties, municipalities and school districts. I don't see any law enforcement reforms in it. I think it continues to be a bad bill."
District 5 Commissioner Harry Browne said he was curious about capping the awards at $2 million plus the up to $750,000 for tort claims. "It seems better to me than an unlimited amount that could be awarded."
Webb said her concern with the limit is the reinsurance. "The gap insurance that our provider offers has told us that if this bill passes, 'you will have to find a new reinsurer.' It is basically impossible to find another reinsurer, so we would have to pay these costs out of our General Fund. This bill doesn't fix civil rights claims, it just sends more money to plaintiffs' lawyers. It doesn't change anything that might reform law enforcement. My concern is from the fiduciary point of view. It could be very detrimental to our county. As this stands, I'm not sure we would be able to get insurance coverage."
Browne said that AFSCME (American Federation of State, County, and Municipal Employees [the largest trade union in the U.S.], as well as Americans for Prosperity and the ACLU (American Civil Liberties Union) are supporting the bill, "which impressed me. I agree with you that it does not address reforms. I think incentives are the way to do that. If we enable bodies like law enforcement and we are failing to hold them responsible for violating civil rights, we need to address that."
District 3 Commissioner Alicia Edwards said she was having a tough time with the issue. "What you said, Commissioner Browne, about incentives and holding institutions responsible makes sense. But where does the funding come from to hold them responsible? Part of institutions holding them responsible is paying them, training them, but where does the cost of that come from? We are already spending one-third of our budget on the Detention Center. Where do we find the money to improve systems without taking it out of things we're already squeezing? The piece I'm stuck on is the cost of making all this happen. I don't see where this act will hold the 'monsters' accountable. Do we have the institutional capacity to do background inspections, to recognize people like this and to train people to recognize this type of individual?"
District 1 Commissioner and Chair Chris Ponce [a former police officer] said he respects what the representatives and senators are trying to do with this, "but I think they are missing the mark. I know of only one individual with charges against him in Las Cruces. Being in law enforcement doesn't give you a lot of training on this issue. The state of New Mexico tries to become the first one in the country to do something about the issue, but we don't get enough input. There will be increased cost of living, but we don't give COLA to teachers and others. Do you think our attorney general will let law enforcement personnel get away with violating civil rights? I don't think so. To reform requires social workers. Look at the decisions law enforcement has to make in seconds, sometimes split seconds." He noted a bill that requires law enforcement to wait 45 seconds after announcing themselves and before entering a home by force. "Criminals are criminals. Call the feds, they don't have to wait to go in. I'm good with reform, but I'm not in favor of putting officers in danger. In Silver City and Grant County, we know our law enforcement. It's different in Albuquerque. It's a huge department. We have the tools in place to address violations. Sorry, I get passionate about this. Things can be better, of course. But I'd be first to say if a person in the department needs to be disciplined. Law enforcement is not an easy job. Social workers and teachers don't have easy jobs. But it's the job of a law enforcement officer who has to decide to take a child out of the home. I'm opposed to this bill."
District 2 Commissioner Javier "Harvey" Salas said he, too, is very conflicted about the bill.
Browne said he didn't see the bill simply capping the amounts, but as a way of opening up new possibilities for people to go to court on the violations, other than having to go to federal court, which gets expensive. "This law gives people more access through the state courts. One of my objections is that the liability of institutions is not capped at $2 million."
Webb pointed out that if there were multiple claims, each at the maximum $2 million, it would quickly clean out the county's general fund.
Salas said he doesn't think the issue will ever be addressed. "The only way to minimize complaints is training, body cams and a lot of supervision."
District 4 Commissioner Billy Billings said there has been a lot of discussion about training and supervision. "Those are solutions, throwing money at the issue is not a solution. I'll probably support opposition to this bill. It might help if the state had maybe a safety net to help entities with lack of insurance. Bad actors are going to be bad actors. I think we need a better mechanism to address that and to keep them from just going to other jurisdictions for jobs."
Browne noted that a case cited was of child abuse by a teacher. The girl and the classmates went to the principal, and he went to the class and told kids not to lie. Part of the problem was qualified immunity, the person should still have a defense even if it was never told. This law says no qualified immunity. "I don't feel confident to rule on this. I think I will abstain."
Salas said he hates is when legislators know something will hurt the finances of counties and municipalities and they don't put any money toward it. "So, I'm opposed to the bill."
Ponce said there needs to be money going into the law enforcement academy. "I don't think New Mexico has a big problem. We have good law enforcement. To me this bill or another one similar to it, they need to step back and think about how to support our law enforcement. Every profession has bad actors."
At the regular meeting the discussion on HB4 continued. This time Browne proposed amendments to the resolution opposing HB 4. "I have some specific changes I would like to see." He skipped all the whereases and went to the statements, where he advised striking 1a and all of 4. [Editor's Note: with no way to see the original resolution, which was ultimately changed, this author cannot determine what was eliminated.]
"I've heard of too many cases where people had no recourse," Browne said.
Webb replied that her understanding is that people do have recourse.
Ben Young of the county's financial firm, Mynatt, Martinez and Springer P.C., read from the current New Mexico Torts Claim Act, which defines the liability of law enforcement. "It does allow lawsuits and yes, people can bring them. This bill expands to every public institution, even Gila Regional Medical Center, even to public input. If you cut someone off after five minutes, they could file suit. 1A is correct. A person can bring claims in federal or state courts. The push here is allowing the claims to pay attorney fees."
Browne said he believes the bill is deceptive because it only seems to apply to law enforcement.
Salas asked: "So people can sue for $2 million per person, and right now they can only go to federal court, not state court?"
Browne confirmed that and said it is much more convoluted to file in federal court and qualified immunity would be gone with this bill.
Ponce said that federal courts can remand things back to states.
Young said the New Mexico courts have said they don't follow qualified immunity in New Mexico. "We have done a lot of research on this issue. Thousands of federal cases have been filed and about a third have been decided on qualified immunity. When we look at cases and we see violations, we encourage the person to go forward. We also see a lot settled before they go to court, and we see many not go to court."
Salas asked if a federal court can remand back to a state court, why can't they just file in New Mexico.
Young said the reasons why people file in federal court is because they allow attorney's fees as part of the award. "If a person is looking to generate more funds, they go to federal court."
Browne said he was fine with B and C but found D and E objectionable.
Webb said the bill affects insurance and B and C are critical to institutions, "because if reinsurance goes away, we will have to pay out-of-pocket. We will have to cut training. We will have to cut staff. How do we pay? It is a legitimate fear because we will have no insurance. It's a very harmful bill to local agencies."
Salas said: "And we will still have the ax of liability over our heads."
Webb said: "We have $1 million for tort claims, but if this bill passes, we will have to have reinsurance for the amount above $1 million."
Browne said: "Yes, it can happen if we don't have good training."
Salas asked if the detention center were privatized, would it fall on the corporation.
Webb said: "No, it would still fall on us."
Ponce said he is also against privatizing facilities. "Right now, we have tools in place into who we hire. The scary thing about this bill is what happens if we become uninsurable. What will happen to the employees? When our attorneys sees it is wrong, we need to listen. If a case has to be mutually settled, I see attorney fees. I fail to see how this bill applies to training. People should come together to determine what training is needed. Do we add a week to the academy? I see the intent of this bill. I am for reform. But this is fear-mongering. There has to be accountability. My biggest concern is it is not attaining more training but is getting rid of bad law enforcement. I voted again the rebate for the property tax because it was a blank check. This bill won't scare some people to walk the straight line. I don't have a problem with 1A because it gives people ways to sue. We look at some of these bills and the unintended consequences. We have to send our juveniles to Grant and Farmington, because of the requirements. We need to put out a bill to regionalize juvenile facilities, so they aren't so far from home. We need to get together in New Mexico and discuss all these issues."
Ponce continued. "The bill may need a higher cap, but it should come down to accountability, and we should not allow the county to become uninsurable. I understand the intent, but I don't think this will accomplish it."
Billings said he would like to see an emphasis on training. "I would like to see this bill go back to the drawing board rather than paying money out to victims."
Salas agreed on a separate bill to address training. "The population at the Detention Center is a whole other issue. We need to tie mental health into this. I don't like what this bill does. It doesn't put money to the root problems, and it opens doors to all the other state agencies. I don't even know the intent if there is already recourse."
Young said he thought he heard the issue of the distinction of cases moving forward in federal court and state court. "Insurance companies do evaluations of risk. If there is qualified immunity and if the insurance company can look at exceptions, they can weed out meritless claims. This bill eliminates qualified immunity. This is a whole new statute that will no longer have precedent anywhere. It will be the first impression. For instance, if you cut off a person giving public input with the five-minute rule, or if gas is shut down because of non-payment, judges will have to make decisions with no precedent. Even if the award is only $1, this allows attorney fees, which will be paid by the insurance company or the county, town or entity. There was a recent case where the plaintiff got $300,000, but the attorneys got $1 million. The biggest beneficiary of this bill is not the people of New Mexico, but the New Mexico Trial Attorneys Association."
Salas noted that qualified immunity has been abused.
Young pointed out again that only one-third of federal cases are decided on qualified immunity. "Qualified immunity does not just protect law enforcement, but it protects all public officials. Like the sheriff said, we are humans, and we can make mistakes. In most cases if there is a bad actor, the cases go forward and more often than not, they are settled. The problem is publicity. Almost always qualified immunity is attached. If change is needed to the Tort Claims Act, make it, such as more training rather than this bill with the potential of catastrophic awards."
Billings said he has never heard "our attorney be so passionate. I support this resolution to oppose HB 4."
Edwards said she had been thinking a lot about institutional accountability and "we don't find that in this bill. How much input did New Mexico Counties have in this bill?"
Webb said New Mexico Counties had input in the Civil Rights Commission, but she wasn't sure about the bill.
Edwards noted the Civil Right Commission was divided on this bill, which concerns her. "I've seen so many bills that had good intent but didn't match what was needed. The Hospital Funding Act comes to mind. It just ties us up. We don't have any concept of the unintended consequences of this bill. I don't know that we can do this even in a 60-day session. I know Charlene is watching about 66 bills that would impact us. I don't think legislators have enough time to determine what is right. Plus, I think this resolution is too complicated. I would have to suggest we say we have serious concerns about this bill and don't want to see it passed until it is improved. Dona Ana County didn't support the bill because the attorney and the sheriff opposed it. I don't think this bill should pass until we address all the issues. We should hold the county accountable. If we really want to see no civil rights violations, it will take Charlene hours and hours to determine how not to have civil rights violations. We have to provide funding. We continually have to do more with less. We would need funding to provide accountability."
Ponce said he opposed the bill the way it is. "It looks like it could affect every county, especially if they make a wrong decision. If we're looking to proactively protect our county, we should oppose this bill."
Edwards said the resolution needed to acknowledge that the county wants to address civil rights, but doesn't agree with the bill, only the intent.
Billings said if it were Tuesday, "We could come up with some new language. I think we should simply pass this resolution."
Browne agreed it would be time-consuming to come up with new language, but he again proposed not putting in any of the whereases and only leaving points 2 and 3.
Edwards said the title didn't indicate the danger the bill is to counties around the insurance piece. "One thing I think is important to say is that it doesn't provide adequate resources to address the root causes. And why did they add in all public institutions?"
Webb said she could redo the language, but it was on the House Floor for a vote that day. "Things are moving. If we are completely changing the title and language it would require another meeting."
Billings asked if they should get rid of D and E, to which Webb replied that those were what is important to the county. As for the length, she said that most legislators would not read the entire five-page resolution, "but our legislators would."
Edwards left to go wordsmith the document.
While she was making changes, the commissioners approved the resolution for the county to participate in the DWI grant and distribution program.
Also approved was the SE Group to provide Trails and Outdoor Recreation Planning Services. The article on the presentation on this item can be read at https://www.grantcountybeat.com/news/news-articles/62980-grant-county-commission-hears-from-group-that-reviewed-the-proposals-for-an-outdoor-recreation-plan-020921
As the Grant County Health Care Claims Board, commissioners approved two indigent burial claims and the Gila Regional Medical Center indigent claims for $9,375.59.
Back as the Board of Commissioners, Billings said he had been participating in the Infectious Diseases Task Force to address COVID-19, but "I can't do it anymore because of time constraints. I heard that some vaccine doses were being tossed. There should be a list of those who want it."
Browne said his perception was that entities were working hard not to throw away doses.
Billings said that had been his perception, too, until someone told him otherwise.
Webb said that Margaret Diaz at the Public Health Office reported that she is calling people on her list, so as not to waste doses.
At the work session, commissioners had reports toward the end of the meeting.
Salas said he wanted to plant a seed. "Things are not getting streamlined. It is very important that we move to get help for our county manager. We need to have an HR (human resources) process in place and someone to help her with the more mundane items, because requirements are not getting any easier, with more government mandates and there's more red tape to navigate."
Billings noted that NM CAP Entity Executive Director Anthony Gutierrez had planned to speak to the commissioners at the work session, but changes were made in his schedule, so he would call in on Thursday during public input. "We are reprioritizing our mission for the CAP Entity." The article including Gutierrez's input can be read at https://www.grantcountybeat.com/news/news-articles/63164-grant-county-commission-reviewed-the-regular-meeting-agenda-at-the-work-session-020921-took-action-at-regular-meeting-021121
Browne asked if the NM CAP Entity was still having a special meeting the next morning. Billings replied that the ISC director would be speaking to the group. That article can be read at
https://www.grantcountybeat.com/news/news-articles/63070-nm-cap-entity-holds-special-meeting-feb-10-2021
Billings continued that the plan is to work on a more direct association with the ISC and for the CAP Entity to prioritize what local water projects should be helped to be ready to go. "I've been elected as chair of the entity. I think I understand what the members feel."
Salas asked if there were still a possibility for dissolution of the entity.
Billings said House Bill 200 will propose to dissolve the entity, take over the New Mexico Unit Fund and give the money to the Water Trust Board. "I have had several conversations with people who have tried to get projects through the Water Trust Board and it's a very onerous and expensive process."
Salas asked if the money would go to other parts of the state.
Browne said his understanding was the HB 200 does not allow spending the money outside of the area, but "possibly only this chunk so the area does not lose access to other funding. I also agree with Salas on the advantage of another position. It would also provide a potential successor to our county manager when she wants to retire or go elsewhere. I also had some discussion on copper production. I think a presentation on it would be helpful." Webb said she would work on it.
Browne said he had found a second ordinance on how to pay a property tax rebate. "I would like to hear how we can plan to sequence things. We could put it before the voters with a mil levy in an amount to bring only enough to pay the rebate. I have a number of questions. Maybe it's a poorly thought-out statute, but it would give us a method to pay. It will need someone to explain it to us."
He also brought up the issue of the profanity on flags along the highway.
Ponce said he thought along the way, people have been losing respect for one another.
The work session adjourned.
During commissioner reports at the regular session, Salas commented that the county should place more importance on getting staff to improve their training. "We will never eliminate lawsuits, but we can show that we are doing more training."
Browne said on Tuesday he had addressed the offensive flags on Highway 180. "My complaint was offensive language. I did my own research and decided we shouldn't pass an ordinance banning it, but just use education."
Webb said the county will have a formal opinion on it.
Edwards and Ponce had no reports.
The commissioners went back to the resolution and approved it as amended.
Edwards at that point, decided she did have a comment. "This issue [on HB 4] has been bothering me a lot. It bears repeating that I so appreciate our conservations and for our coming to agreement on items."
The meeting adjourned.