— Editor’s note: District Attorney Henry Solano penned this letter to Las Animas County Commissioners on Tuesday, June 26. It is being printed here in full as an opinion piece.
To Las Animas County Commissioners Luis Lopez II, Mack Louden and Dean Moltrer:
Because you have failed to appropriate money granted by the voters in Las Animas County to meet the necessary prosecution needs of the District Attorney’s Office, I am now required to take action.
The first step is to begin dismissing pending cases in Las Animas County so that the remainder can be professionally prosecuted with the limited staff to handle the cases. I will be reviewing the cases and making the decision on which will be dismissed to lessen the adverse impact to public safety. I have never in my 40-plus years as a lawyer and prosecutor ever had do this. Early last year, while you as commissioners voted and closed Las Animas County government offices two days per week— I did not. The Courts were open five days per week and crime did not take time off, neither did we in the District Attorney’s Office. Public trust of the District Attorney’s Office was lacking. I took steps to restore it and decided early last year to seek voter approval of Proposition 1A. With that in mind, I chose not to dismiss any case because of lack of resources and have kept to that commitment for the last 18 months.
With staff, we worked more than the traditional workweek and have for over 18 months. We essentially made up for an unfunded prosecutor and other needed staff to meet our responsibility for public safety. I have requested that you appropriate the funds for the necessary needs of the District Attorney’s office, which you have not provided.
This funding could be from the amount you had previously appropriated from property tax and the estimate provided in Proposition 1A or entirely from Proposition 1A. There is more than enough money generated and received by you from the Voter approved Proportion 1A to support the public safety function of the District Attorney’s Office as I have requested.
You have failed to inform both me and the people of Las Animas County what you have done with the property tax funds previously appropriated the office or what you are doing with the funds from Proposition 1A.
The Voters responded but you have not and you continue to avoid taking appropriate action. Thus, the responsibility and burden for lack of public safety falls squarely on your shoulders and the public needs to be told this.
The first of several actions I will be taking is to have the workload meet the inadequate level of funding you have provided. This requires that I dismiss pending cases (approximately 25 or more felony district court cases and an undetermined amount of misdemeanor county court cases at this time) and through the remainder of the year additional cases. I am asking law enforcement to continue pursuing investigations and cases with no change in what they do.
Any subsequent dismissal for lack of funds will be made on a case-by-case basis evaluation of the number of pending cases and seriousness of the offenses at the time. Each dismissal pleading will cite inadequate appropriation by you as the reason. A copy of each dismissal motion will be provided to the public. Attached is a sample of the pleading, with the corresponding number of case dismissed for lack of appropriation to be inserted.
The statute used for Proposition 1A required the revenue be used for public safety. I got the legislature to amend the statute so that Proposition 1A could be voted on in November 2017. For an unexplained reason you have charged the District Attorney’s Office a 5 percent surcharge for 1A revenue – with no other county agency similarly charged for funds received from 1B.
Thus, from the District Attorney annual appropriation you subtract $26,000 for yourselves. Both 1A (.5%) and your 1B (1.0%) total 1.5% sales tax. Therefore, Proposition 1A is 1/3 of the sales tax and separating the sales tax amounts is simple math; splitting the two takes only minutes at best. Even assuming it takes an hour or two once a month you are charging the District Attorney’s Office anywhere from $1,083 to $2,166 per hour. That is simply outrageous and a diversion of funds from public safety.
To understand that another way, the $26,000 you are siphoning off is about 3/4th the annual salary of an employee. It does not take a person 3/4th of their time each month every month to separate the 1A tax amount from those received for 1B and to appropriate 1A money to the District Attorney’s Office. On top of that from the $580,000 1A estimate, which is well below the actual money generated by 1A, you take another $60,000, without telling me, or the public, where it is going.
Clearly what you are doing is trying to use 1A revenue for other purposes. In essence you are engaging in the civil equivalent of a Ponzi scheme in silence without clear disclosure. The 1A $86,000 money being misdirected by you could pay for another prosecutor at a salary less than the amount you pay your out of state county attorney. The Las Animas County Attorney has lived in Texas since before I took office in January 2017. Your budget appropriates $89,000 annually for the county attorney and even pays for her commuting to Colorado to perform her duties.
Finally, through your county attorney you continually take the position that you cannot use the money in excess of the $580,000 estimate, citing the Bruce Amendment. In crafting 1A, I was careful to ask the voters for authority to use all money above the estimate in the first year and thereafter. The concern raised by your county attorney was that you could be sued and in fact she referenced the El Paso County case as an example. The sales tax proposition there was to fund the El Paso County Sheriff’s Office with a similar request that all revenue including above the estimate be used in the first year and thereafter. The El Paso County Commissioners chose to support their sheriff’s public safety needs over Doug Bruce and began using all the voter-approved revenues for the Sheriff.
While Doug Bruce did sue, in December 2017 Judge Kane ruled against Doug Bruce. He found that the voters were given the choice and in fact voted to allow all money including those above the estimate in the first year to be used by the Sheriff.
Months ago, I provided you and your out of state county attorney both Judge Kane’s decision and the Colorado Supreme Court cases he relied on. The only response was that his decision, which is well-reasoned, was not a Supreme Court decision and the county was afraid of the speculative possibility of being sued. Therefore, unlike the El Paso County Commissioners, who stood by their Sheriff and for public safety, you are siding with the ghost of Doug Bruce.
In summary, you have had the ability to fund the necessary expenses and needs of the District Attorney’s Office but are not doing so. When I decided to run for District Attorney and took office, I was aware of the 30-year history of lack of adequate funding by the Las Animas County Commissioners, with the justification varying, but principally being lack of revenue. I was aware that Former District Attorneys Luis Lopez Senior and Jon Neil Barclay both sued their County Commissioners and each left their elected positions before their terms had ended because of lack of funding. I was aware of the low esteem, criticism and Supreme Court action against the former District Attorney’s license.
This licensure action related in part to the chronic underfunding, where sanctions had been issued by the local courts for violation of the obligation to provide defendants and their counsel material timely. Some of the sanctions found were due to failures of local law enforcement to meet their responsibility. However, the District Attorney is the one who is ultimately responsible by law, even if the fault lies with law enforcement. With the knowledge of how dysfunctional the situation was, I began by reorganizing, looking for efficiencies and modernizing the operation with donated used equipment and no additional money from you. I set expectations for the performance of the office and law enforcement.
Recognizing those steps while important and meaningful could not solve the problems that plagued the office and was jeopardizing public safety, I proposed 1A as a stable source of funding so that without the competing demands of other departments the needs of the District Attorney’s Office could finally be met. That is how I presented it to the voters plus the facts of actual turnaround of the office, with 30 percent more prosecutions and no sanctions by the courts for failure due to performance.
At the same time as mentioned above, we made up for lack of staff by working nights and weekends. We have kept up our effort and as of today, prosecutions are up another 25 percent from last year’s 30 percent increase, including the high number of homicides and attempted homicides occurring in just the last seven months. We have accomplished much in Las Animas County while facing more than two state-funded Public Defender Attorneys and up to seven private attorneys also paid by state funds.
The voters responded by passing 1A. However, as County Commissioners with the successful passage of Proposition 1A and more than enough revenue being received from the sales tax, you have failed to adequately fund the office. In fact, you are misdirecting property tax and 1A money away from the District Attorney’s Office. You are halting the momentum in taking our communities back from crime and criminals and that must stop. Your failure to appropriate sufficient funds for the needs of the District Attorney’s Office is now placing public safety at risk.
In addition to the above action, I will be initiating a lawsuit against you to correct not only the above, but what appears to be a failure to be open and forthcoming under the open meetings law you must follow. The action will be for declaratory and injunctive relief to compel corrective action by you and future county commissioners.
Clearly, the 30-year-old habits of county commissioners underfunding of the District Attorney’s Office, including when District Attorney Luis Lopez Senior and Jon Neil Barclay were in office, won’t stop even with more than enough money and a stable funding source under Proposition 1A.
1A was passed for the express purpose of removing the excuse of insufficient funds and having the District Attorney’s Office compete with other Departments for funding. You attempted to address other departments with the passage of 1B after I proposed 1A and both were on the ballot at the same time. Yet you are siphoning off Proposition 1A money from the needs of the District Attorney’s Office and its public safety function to other uses. All of this is in disregard to the will of the voters and done behind closed doors without explanation.
There is simply no other choice. Dismissal is required as a short term solution but litigation to have compliance with all applicable law and the change approved and made by the voters in passing Proposition 1A to inadequate funding of the District Attorney’s Office must be taken now in the first year of its passage.
Consequently, you are advised that all communications, whether by text, email, notes or recording of meetings, including executive sessions, whether on county or personal equipment are to be preserved. These communications will be sought in the lawsuit that is to be filed. If any have been or are deleted or destroyed sanctions can and will be requested.