A reply to the open letter by Huerfano Deputy Sheriffs and Huerfano Commissioner Garcia’s letter to the editor:
My letter to Huerfano Residents was to notify every one of the consequences of the Huerfano County Commissioners not funding the necessary expenses of the DA’s Office. In his letter Chairman Garcia asserts that the Huerfano County Commissioners are funding the necessary expenses to handle prosecution of the actual cases in Huerfano. He also asserts that their actions are appropriate since in advocating for better public safety, I have been adversarial and they have not. Chairman Garcia uses incorrect/misleading statements to make both false claims. The basic question is how can there be a doubling of felony cases with no increase in prosecutors and support staff to handle that increase?
It’s easy to make conclusory false and misleading statements. Responding with accurate information therefore takes more time.
Actual facts regarding crime rate, related funding
My letter was not a criticism of the Huerfano County Sheriff Deputies. I have always had a good relationship with law enforcement starting as a line prosecutor, as the Colorado U.S. Attorney, including hosting and supporting law enforcement and the victims during the Oklahoma Bombing trial in Denver, Solicitor of the US Department of Labor and now as District Attorney. This is confirmed by the Las Animas County Sheriff and the Trinidad Police Chief and their staff. The Deputies’ open letter confirms what I have publicly said: because of their efforts there is a large increase in cases being filed. I and my office appreciate their effort, supporting their efforts by being available 24/7 to them. They were told not to change their efforts because of insufficient funding of my office and the need to dismiss cases to appropriately and ethically handle the work. The Deputies point out that the increase in cases is due to their efforts and also because the Huerfano Commissioners funded an increase from nine patrol deputies to 20; over double. So there is a doubling of both deputies and a doubling of felony cases but no increase in prosecutors and staff by the commissioners to handle the resulting prosecutions. That defies simple math, logic and common sense.
Chairman Garcia claims the Huerfano County Commissioners are funding the necessary expenses in Huerfano because they fund at a level equal to the per capita averaged for counties of its size. Relying on data from Colorado Counties Inc. they go on to say the percent of funding compared to all DA funding and percent of arrests compared to all arrests are equal, further justification for their inaction. That is what that chart says; but the supporting data it lists is wrong. The chart says that the total arrests for Huerfano County were 63. However, from the Colorado Judicial records, the number of felony cases (arrests), were 163 and 284 in 2017 and 2018, respectively.
The felony rate of crime (arrests/population) relied on by Chairman Garcia is 0.94 percent. Using the actual 2017 felony figure, the crime rate was 2.46 percent, or over two-and-a-half times more than the rate relied on by Chairman Garcia. For 2018 it was 4.35 percent or 4.6 times greater. As of September 6 of this year, there were 232 felony cases in Huerfano and the felony arrests (cases) will hit between 320-340 cases at the end of 2019. Using 320 for 2019, the felony crime rate will be 4.8 percent, or over five times the rate relied on by Chairman Garcia. Another comparison of the felony crime rate is to look at the two counties we represent. The felony per capita rate for Las Animas in 2018 was 2.2 percent. In other words, the “felony crime rate” in Huerfano, with half the population, was double that of Las Animas. This trend will continue for 2019 since the felony cases for Las Animas as of September was 214; 18 less than Huerfano.
The clearest example of the error in the commissioners’ position is spending the same amount as the average counties to take care of snow removal is acceptable even though your county had more snow than the average. It is hard to believe that the residents who don’t get snow removal on days above the average should find that acceptable and quietly accept it. When using the actual facts it is clear that the commissioners have not and are not meeting the necessary expenses for prosecuting cases in Huerfano County. The public deserves to hear about it.
Actual facts regarding interactions with commissioners-adversarial conduct
Because there was a vacancy in the only funded deputy district attorney position in Huerfano before I took office and there had been chronic turnover, I asked and the commissioners funded an increase to hire a felony qualified prosecutor in Huerfano County. That increase allowed the experienced prosecutor to be sworn in with me on January 7, 2017. In early December 2017, I presented the first budget as DA. It reflected the actual costs and staff needed to meet the necessary expenses of the DA’s office. After the December 11, 2017 combined commissioner budget hearing two things happened. First the then Las Animas County Commissioners misappropriated without explanation $80,000 of voter approved 1A tax money dedicated to the DA’s office. A District Court Judge recently ruled that action illegal. The Huerfano County Commissioners without prior notice or explanation on December 20, 2017 cut the budget by $60,000 (32 percent). Because I could not pay the experienced prosecutor his salary (a necessary expense) he notified me he was leaving January 8, 2018 to go to another DA’s office.
When the Huerfano Commissioners agreed to meet, Commissioners Cisneros and Garcia raised two cases as the justification for the cut. In both instances they were misinformed concerning the facts and were given the actual facts. In agreeing to reconsider the cut, Chairman Garcia said the cut was to get my attention i.e. to send me a message. I asked that the restored money not carry a statement that the restored amount was only for one year as this would make it hard to recruit an experienced prosecutor given what the Commissioners had just done and a signaling that the restored money again may not be available in the second year for any new hire’s salary. The restored money was limited to one year.
Because of the commissioner’s actions, the office was needlessly, inappropriately and illegally thrown into crisis. First, as non-lawyers commissioners are not permitted to supervise the DA’s office or the legal decisions made. Second, the Huerfano County Commissioners have not cut any elected county official’s operating budget to get that person’s attention or to send that elected official a message. Third, in the approved budget for funding for ongoing operations for any county department or county elected official’s expense, they have not in writing expressly limited such appropriation to one year.
The next interaction with the Huerfano Commissioners relates to my suit against the former Las Animas Commissioners regarding the diversion of 1A funds and refusal to appropriate additional collected 1A revenues to meet the necessary expenses in Las Animas County. Although not involved with Las Animas 1A revenues, the Huerfano County Commissioners included a very vague written complaint entered into the lawsuit. When asked, the Huerfano County Attorney advised in writing that the Huerfano Commissioners’ position was that 1A was illegally adopted since it did not pass in both counties. I publically criticized that position as an attempt by Huerfano County to take away the right of Las Animas voters. At the hearing, the Huerfano County Attorney did not raise that outrageous argument but took the position that the law including 1A permitted the Las Animas Commissioners to do whatever they wished with 1A revenues: it was not a dedicated revenue stream to properly fund the DA’s office. The judge rejected that argument and found that my interpretation of 1A was correct. Apparently the Huerfano Commissioners don’t consider their unnecessary and improper actions adversarial.
Although backing away from denying the Las Animas voters their right to vote to properly fund the DA’s office, they are comfortable in denying the Huerfano voters that right now. The arguments Chairman Garcia advances are a repeat of those of the former Las Animas Commissioners to support their unlawful action.
Chairman Garcia says one reason for not proposing a future tax initiative is because I have not submitted a line item budget. I have always summited a line item budget, but they want a different format. So in order to get the budget cut restored during the operating crisis they created, I reformatted my 2018 budget. The substance was exactly the same. In resolution 18-09 adopted January 23, 2018 in restoring the budget cut, Chairman Garcia and Commissioners Cisneros and Vezanni affirmed that “the district attorney has submitted a line item budget consistent with those provided by other offices and departments funded by Huerfano County.” Thus the statement in his letter is false.
It took time to stabilize the office and I had to take emergency action to handle all Huerfano felony cases myself. That took time and I was able to finally find an experienced prosecutor to join me in Huerfano. Again as justification for not giving the voters the right to decide on more money to fund prosecutions, Chairman Garcia to further support inaction asks where is the money from the supplemental increase until the filling of the vacancy of a new experienced attorney caused by them? Had the commissioners notified me of the meeting where they rejected putting the initiative on the ballot (another adversarial act) and asked at that time instead of insinuating misconduct, they would have learned that it has not been spent. Since that appropriation was limited to one year that unspent amount is held by me in a restricted account, even though it is needed for necessary expenses related to the increased cases.
Next Chairman Garcia justifies the commissioner’s actions because I have not submitted an audited financial statement. Both sets of commissioners in a joint meeting were told last year that the State Auditor by statute determines the obligations related to audits. I asked for an exemption from a full audit as permitted by statute and regulation. I submitted the exemption request because the amounts funded by both sets of commissioners was not enough to perform the essential necessary functions of the office due to increased prosecution costs in both counties and to also pay the $7,000 for the audit. The State Auditor approved that exemption. The commissioners don’t sufficiently fund the office and then criticize (putting the innuendo in the most favorable light) my saving money where I lawfully can to do my primary job. Again there is no substance to the innuendo, which was first asserted by the former Las Animas Commissioners and repeated by the Chairman Garcia.
The last item Chairman Garcia raises is the lack of quarterly, joint meetings with both sets of commissioners. I said I would participate in the joint meetings if the Las Animas Commissioners would agree to meet with me separately to answer where the diverted $80,000 from 1A went and to consider my request for a supplemental meeting given the excess 1A revenues being collected. They delayed over nine months before publicly explaining what they had specifically done with the diverted 1A funds. Even though committing to answer my questions and to consider my request for increased funding, that September meeting was full of innuendo and false statements (some repeated now by Chairman Garcia). One Las Animas Commissioner even asked for my resignation, despite the high number of felony convictions including the 30-year sentence, the first such non-homicide sentence in 25 years.
Months before that, the former Las Animas County Administrator said my request to meet and discuss the agenda items I raised would be honored on a given date. I showed up and the then Las Animas Commissioners controlled the agenda, asking their questions with the chairman then ruling my items were not on the agenda and refusing to take them up. The Huerfano Commissioners and county administrator were copied on my response and conditions to meet with the Las Animas Commissioners before jointly meeting with all commissioners. The reason the joint meetings were not held is because of the conduct of the former Las Animas County Commissioners. This led me to sue them and the Court ruled in my favor regarding all 1A issues including the improper diversion of $80,000.
Instead of trying to supervise my office or that of the State Auditor, the Huerfano Commissioners ought to address the actual prosecution needs of the county. This will allow for the hard work of the deputies to be prosecuted and public safety for residents to be enhanced. Since the Huerfano County Commissioners have entered into the lawsuit and taken an active role, I am adding my formal complaint and taking the Huerfano Commissioners’ actions before the court, just as I did with the former Las Animas Commissioners. The judge is able to sort out facts from rhetoric and misleading or false statements.