Thanks Marjorie

What’s Wrong With This Picture?

Political blogger Marjorie Childress wrote a piece on her m-pyer site about Carter Bundy. Bundy wrote, as a guest columnist for Heath Haussamen’s site, about the Democratic Party’s system that is making selecting their presidential nominee difficult. Unlike the Republican’s winner-take-all primary system that has weeded out all but the presumptive candidate, Sen. John McCain, the Democrats’ top two candidates are mired in a knockdown drag-out fight process that may take them to the Denver convention without a clear winner.

So, what’s wrong with this picture?

This is Bundy in the green American Federation of State, County and Municipal Employees sweat-shirt behind former President Bill Clinton, at a rally campaigning for his wife, at UNM’s Johnson gym on Jan. 30.

Bundy fails to disclose his preference or support. What is a casual reader to make of Bundy’s comments if they don’t know where his leanings are?

Heath Haussamen has a spotty history of disclosure; sometimes he identifies his associations, like he did this week about being a friend of Democratic primary Congressional District 2 candidate Bill McCamley. However, he failed to disclose that Whitney Cheshire had been one of his weekly guest columnists, when he accepted a statement from her, in her new role as spokesperson for Heather Wilson’s campaign. Cheshire denied allegations of vote buying at the Bernalillo County Republican Party Pre-primary caucus. Haussamen, believing Cheshire, simply got the story wrong.

Childress raised an issue last week, which caused me to contact her. She was chastising my colleague, Joe Monahan, over his ethics essay winner. She wrote:

“…And to bring it full circle, here's a blog post by M.G. Bralley about one of those people who gave the bribes.”

In an e-mail to Childress, I engaged her in a discussion, in part, on the ethics question and I wrote the following:

…A violation of law is a violation of ethics, but a violation of ethics is not necessarily a violation of law.

There are a lot of things that people think should be violation of ethics that they will not codify.

If the law does not suffice, what makes you think that "ethics reform" will?

Don't get me wrong, there are some real problems here. However, just because the law is not used effectively does not mean there are no problems.

It seems that a great number of people think that money is the root of all ethical problems.

The Supreme Court determined that money is speech and protected….

…The reporting is completely backwards. Individuals should not be the ones named in legislation as being the ones limited. It should be the legislators and other elected officials who identify the source of every penny they accept.

Then, there needs to be a mechanism to track the money back. Armed with that information, voters will be informed better than they are now.

Every citizen a watchdog! Each person has a civic responsibility; not having time is not an acceptable excuse….

She wrote back in a personal and casual e-mail:

thanks for your note, and for correcting me. I had not had any coffee when I wrote that and you're right, you didn't say he bribed, just laid out the allegation. i fixed it on the blog, noting that you corrected me. in your post below you cover several different things:

political ethics: would love to discuss this with you further, but at the moment am on the run. would love to discuss it in the comments section of my blog, as well, even if you wanted to do so anonymously.

my ethics: thanks for checking me on that. i do try, and don't mind being corrected when i overstep. i am far from perfect!

as to monahan, i agree with you: he's a big boy who has no problem taking care of himself. i thought my post was pretty reasonable, and my questions are valid considering his own posts on the topic.

She added to her original post:

**I have been taken to task by M.G. Bralley for misrepresenting what he said above. He has a good point--no bribery has been proven against that individual, and no charges brought, despite Montoya's statement. Thanks for checking me MGB. (By the way, m-pyre readers, the photo essays on Bralley's blogs are always interesting--you should all check them out).

Like many bloggers I have encountered, Childress’ coffee depravation, (along with a lack of sleep) are the common excuses we use when we don’t quite get it right.

She corrected her posting and gave me a plug to boot. She redeemed herself with me.

So, I invited her to coffee, at her convenience, to talk government, politics, social issues, ethics, blogging, state of journalism, or whatever.....

No response from her yet; hence this post, to tell her that I appreciate her clear voice and thoughtful writing in the din of the blogesphere. I will take her up on the conversation, just not anonymously.

I do not engage in what I call the backside of blogging, or the comment section and I have only once made an anonymous comment. It was a smart-alecky poke at Sheriff Greg Solano’s objection to Moriarity Math Teacher Will Klundt who posed an arithmetic word problem. According to Solano’s source:

"Smoky J. sells meth. Smoky's source says he has to sell a G's worth of meth by the end of the month. If Smoky sold $240 the first week and $532 the second week, how much money must Smoky make if he wants to avoid the beat down from his connection?"

The teacher’s approach in mentioning drugs seemed to have upset some folks.

The “Just Say No!” types can’t stand any reference to drugs; I don’t hold such shallow thinking and believe that talking about drugs, even sarcastically, like other issues of the day, is a good thing. So I ventured in with an anonymous comment:
“Yeah! OK, but what's the answer?”

I think, even if no one else does, that it is important for the students to figure out the cost of doing drug related business, “the beat down.” It was possibly a missed opportunity to have a meaningful discussion on the negative economics of crime.

I’ve gotten a bit far a field. Back to the caffeine….

Childress’ name has also appeared as a “Fellow” on The New Mexico Independent website that kicked off a couple of weeks ago.

The Independent is a new online news outlet sponsored by the nonprofit Center for Independent Media.

The Independent’s Managing Editor David Alire Garcia is a: former executive director of the State Democratic Party, a staff writer at the Santa Fe Reporter, on the editorial staffs at the Albuquerque Journal and Tribune, and co-host of PBS affiliate KNME TV’s weekly public affairs program, New Mexico In Focus. Alire Garcia, is seen above right, interviewing Robert Martinez after the State GOP’s pre-primary convention.

Former Journal political writer Trip Jennings, above center taking notes at the 2007 State Legislature, is the Independent’s News Editor.

Despite the name, Independent, it does not resemble the old El Independente newspapers of the 1970s that were owned, published and edited by Mary Beth and Mark Acuff. Mark Acuff was a die-hard Democrat who had a notable career in New Mexico as a newspaper editor. He first gained notoriety as the UNM Daily Lobo’s editor in the early 1960s. I knew Acuff, above, when he was also the editor of the Albuquerque News in 1970 and 71. Acuff’s El Independente newspapers were not independent, but leaned, ever so slightly to the Democratic side, in spite of his fair reporting.

Usually, newspapers adopt names consistent with their political philosophy, such as: the Arizona Republic or the Arkansas Democrat-Gazette. The Independent website is also not so independent. The Center for Independent Media staffers tend to identify themselves politically as Progressives; so does Childress. Hence, the Independent might more aptly be named the New Mexico Progressive.

Now, I have some thoughts in common with the progressives. I consider one of the leading Progressive’s of the last century as someone I admire, the once police commissioner of New York City and later President, Theodore Roosevelt, who aptly is tucked away on Mount Rushmore amongst the truly great presidents.

The Independent’s site intrigues me. The idea is something I hoped to be associated with; an online news source. They need some good photography. However, I am unlikely to join them, because upon reflection, their political leanings are in conflict with their masthead name.

OK, I admit that, “What’s Wrong With This Picture?” holds its own skewed editorial/political point of view. However, I don’t pretend to have the infrastructure of an established news outlet, but am a self-sustaining, single-minded source of news, commentary, analysis and opinion. If I joined such a group, I would adopt the currently accepted news standards of reporting and let a separate editorial section reveal the commentary, analysis and opinion. I attempt to follow the Society of Professional Journalists’ code of ethics in the reporting part of my postings. When it comes to the analytical portion, I tend to revert to the Public Administration school standards. Finally, “My Take,” is just that, pure opinion, hopefully informed, but mine just the same.

As an adjunct professor, I have only a few rules about discussion in the public square; Fact before opinion, respect the conversation, one at a time, and everybody plays. On my site I moderate comments, I seldom post anonymous comments, except those that truly add to the civil discussion. I believe in free speech, just not uncivilized rants. Everyone has a right to say what they want, but hecklers are invited to open their own sites and spew away. I had enough of street brawling and I get to choose how I wish to communicate. Comments are still welcomed.

In my photography, I adopt the conventional standards outlined in the National Press Photographers Association’s code of ethics.

I’m not sure I’m willing to give up my Marxist ways. No, not Karl Marx; but Groucho, who said, “I would not join any group that would have me as a member.”

STOP!

What’s Wrong With This Picture?

Preface:

I don’t want to write about it! I Don’t Want To Write About It!! I DON'T WANT TO WRITE ABOUT IT!!!

I was the Albuquerque Police Officers Association president some 22 years ago and was last a union contract negotiator nine years ago. I have been gone long enough that I had hoped I would not have to write about what is going on in the union. I wouldn’t, except it affects the public, not just the police department or city employees.
I haven’t seen, read, or discussed with anyone the details of the recently ratified APOA contract. The language is of little consequence to why I write today.

Nobody is ever completely satisfied with a collective bargaining contract and there are age-old disputes about how to negotiate. This contract is no different. It’s what happened outside of the police and other city employee contracts that has caught my attention.

Lawrence Torres was appointed Director of Employee Relations by Mayor Martin Chávez in August 2006.

Torres, left, was an open space ranger and had been the chief negotiator for the APOA. His appointment violated ethical standards by allowing him to administer a contract that he had negotiated in his former job. It is not a violation of any city rule or ordinance, because the city has refused to address such issues. In the wider circles of professional public administration, such an ethical lapse would be well defined.

During this year’s round of negotiations, the city has entered into what can only be described as “take it, or leave it” deals with each of its labor unions, without entering into any good faith collective bargaining sessions. Normally, city employee union negotiations take several months to complete. This year, the meetings have not run past a couple of sessions.

The tactic is known as Boulwarism, named after a General Electric management negotiator and company Vice President Lemuel Boulware. He devised a plan for the company to identify and address all the concerns of the workers. His comprehensive research was presented at the opening of the next bargaining session as a “take it, or leave it” proposition as the "first, last and best offer." The International Union of Electrical, Radio and Machine Workers, AFL-CIO (IUE) filed several unfair labor practices and the National Labor Relations Board ruled the tactic improper.
General Electric Co. v. NLRB, 412 F.2d 512 (2d Cir., June 9, 1969)

Boulwarism is illegal. Ironically, Boulware’s financial offers were considered more than fair and outstripped anything offered by the rest of the industry. However, the electrical workers union wanted, but were denied, its opportunity to bargain at the table, not unlike what is currently happening to Albuquerque’s city employee unions.

The city's contract labor negotiator and mayor's education consultant Paul Broome, above, is trying to play the role of Boulware. However, he did none of the research nor had any of the benefits Boulware brought to the electrical union. Broome has only followed Boulwarism to the extent that the city has made a “take it, or leave it” contract offer.

Broome has used strong-arm tactics by telling city unions that it is all about money. He used tactics that were completely contrary to the city's labor ordinance; the requirement that labor put its proposal on the table first. Broome, instead put the "best, last and final" offer on the table. He then used pressure tactics including, that the mayor and department director are impatiently awaiting for the union to wrap it up.

I was going to write a piece about captains being removed from the union by contract last year, but I restrained myself; now seems like a good time to comment on it as an example of how the City is attacking unionism.

The problem stems from the Labor-Management Relations Ordinance and the original philosophies at play. Normally, and specifically in the private sector, supervisors are not allowed to be union members.

As a result of the City’s refuse collectors’ wildcat strike in 1970, blunted by a strong showing of police power, the city hastily wrote a labor law. This event was, for city union workers, the equivalent of the Boston Tea Party. It marked a change. However, even though the city agreed to negotiate with its employees, the ordinance the city drafted was far from a “good faith” attempt to deal fairly with the employees.

The City Commission defined supervisors:

Supervisors. …In the Police and Fire Departments, chiefs, deputy chiefs, and assistant chiefs are the only employees classified as supervisors.
('74 Code, § 2-2-3) (Ord. 153-1971; Am. Ord. 4-1977)

The operative word was “only.” Neither a union nor the city, separately or collectively, may ignore or rewrite a City Ordinance. In past contracts, union membership was defined as all “permanent, full-time, non-probationary, sworn police officers through the rank of Captain, from APD, Aviation, and Open Space.” This simply is another violation of the ordinance. The city and union redefined captains by calling them commanders. The change did not make the captains/commanders part of the excluded group: chiefs, deputy chiefs, or assistant chiefs.

Now there are reports that Sergeant Paul Heh, who was openly dissatisfied with the terms of the contract, is being investigated for "conduct unbecoming of an officer," by the APD Internal Affairs unit that is looking into complaints of intimidation over voting for the contract.

The APOA negotiating team made a presentation to its members on Thursday, March 13, using a PowerPoint slide program with all the purported language changes.

The Eye on Albuquerque has blogged extensively on this issue and the backside comment pages have had a lively discussion. Charges and counter charges ranged from why younger officers should get the lion’s share of the money to how longevity pay was going to be removed.

One of the common threads during the discussion is that there was not a complete contract available for review.

Some, including Heh, have charged that not having a complete copy of a tentatively agreed upon contract had never been done this way before. That’s one of those things, the statement “it never happened before,” that really bothers me. It has happened before and a lot of other things happened also. Almost every APOA negotiating team has presented proposed contracts in as many different ways as imaginable. I watched them all, while I was there; sometimes they had copies of full language, sometimes they didn’t.

Currently a ratification vote commenced immediately following the presentation with polls closing 36 hours later. The results were for acceptance by a vote of 366-307.

However, there were several items of concern raised:
Probationary officers were allowed to vote on this contract.

If true, this is a violation of the labor ordinance about the makeup of the bargaining unit as mirrored in the language: “non-probationary” members.

Chief Ray Schultz, center, speaking with field services officers after the Feb. 2, Hillary Clinton rally, announced in March, after the contract ratification vote, that he was changing Field Services Officers’ work schedule from four ten-hour days to five eight-hour days.

So what’s wrong with this picture?

This isn’t the first time city employees have been unhappy with contracts. Police Chief Gerald Galvin is surrounded by picket signs as he sat at the back of a 2000 City Council meeting where police officers gathered to protest the negotiations process.

Sgt. Heh spoke out at the April 8, 2008, City Council meeting. Heh is absolutely protected by the First Amendment for off duty comments about a matter of public concern. Immediately after the meeting, Heh was hand served with a target letter from Internal Affairs.

The existing contract specifically delineates how a target letter will be delivered.

“Section 23. Administrative Investigations
D. The officer shall be informed of the nature of the investigation before any interrogation commences. Prior to any administrative interview being conducted sufficient information shall be disclosed to reasonably apprise the officer of the allegations. This information will be provided to the target officer(s) in writing via certified US Mail. Through the course of the investigation, additional issues of concern may arise that may be incorporated into the investigation.”

There is a prohibition against parties and individuals becoming involved with the negotiations process in the Labor-Management Relations Ordinance.

§ 3-2-9 Prohibited Practices.
(C) It shall be a prohibited practice for any elected or appointed official of the city government or for any employee organization, group of city employees or individual city employee to attempt to influence negotiations or to interfere with the normal progress of negotiations between the duly authorized negotiating teams of the city government and of the employee organization.

One might think that both Sgt. Heh and the City Councillors violate the language of this ordinance. One would be right. However, if you will recall the first five words of the First Amendment, “Congress shall make no law…” That now includes the City Council, which “shall make no law… abridging freedom of speech…

This is City Attorney Bob White at a 1999 City Council meeting when then APOA President Alex Marentes and Vice President Paul Pacheco, who were challenged by then Council President Vicki Perea. Perea quoted the prohibited practice, but White warned her off with the First Amendment.

Apparently there is an accusation that Heh and possibly some other senior sergeants or veteran officers intimidated younger members of the APOA to vote against the contract. It is these accusations of intimidation that sparked Internal Affairs investigations.

This is where the title of this post comes into play: STOP!

This allegation is a union matter, to be resolved within the union, by the union.

If the chief believes that the alleged intimidation is more serious than a violation of the Standard Operating Procedure, then he should handle it as a criminal matter.

There are at least two problems with that:
APD’s criminal investigators, like their counterparts at Internal Affairs, are members of the bargaining unit and there is a built in conflict of interest that can not be overcome within the department.
There has been an allegation, if only a rumor, that non-union administrators, commanders or a deputy chief may have been present at a polling place and possibly looked over the shoulder of officers while casting a ballot.

With such allegations, it would be improper for APD to conduct such an investigation.

There is an irony associated with the idea that senior members of the association might intimidate younger members. When the old City Commission accepted the city’s human resources’ department’s draft language that became the Labor-Management Relations Ordinance in the early 1970’s, it chose to include all officers except the executive levels of chief, assistant chief and deputy chiefs. The thinking, according to John Martinez, who was at one time Director of Personnel and Employee Relations Department and the person who was intimately involved in all things related to labor relations at the city, was that police captains were included in the bargaining in part so they could exert a calming effect on younger and potentially more bold officers.

It now seems the opposite is occurring, with the allegation that senior members are influencing younger ones through rash acts.

Sgt. Heh has retained attorney John D'Amato, who is suspicious of the timing of the Internal Affairs’ target letter.

The City Council does not play a direct role in labor negotiations. They can become involved in two ways. The Council has a Guidelines Committee.

§ 3-2-17 Guidelines Committee.

(A) To facilitate communication and coordination between the Mayor and the City Council concerning collective bargaining strategy, there is created a Guidelines Committee composed of three City Councillors appointed by the Council President and three members of the Mayor's staff, one of whom shall be the Chief Administrative Officer. The Guidelines Committee shall, in accordance with the New Mexico Open Meetings Act, promulgate rules to effectuate the purposes of this section.

(B) The Guidelines Committee shall meet in closed session with appropriate staff in accordance with the New Mexico Open Meetings Act as necessary to discuss bargaining strategy preliminary to collective bargaining negotiations between the city and employee organizations.

(C) At the time negotiations are opened, the Guidelines Committee shall entertain a presentation from the employee organization involved in the subject collective bargaining negotiations summarizing its positions and proposals in the upcoming negotiations so the Guidelines Committee may be fully informed. The Guidelines Committee shall not otherwise meet to hear or entertain presentations by employee organizations of collective bargaining proposals, counter proposals, grievances or any other issue related to employee/labor relations except that the Mayor may ask the Guidelines Committee to convene upon the Board entering a finding that a strike has occurred.

The second involvement of the Council is a function of the budget process. When a contract exceeds the budget or there is a multi-year contract with pay increases, the Council must specifically approve those raises.

The Council, through its own ordinances, has determined that it will not become involved in the process, especially including grievances such as Heh’s.
My Take

It doesn’t seem like almost nine years, but it is; on November 8, 1999, I spoke at the Police Oversight Commission meeting and caused quite a stir because my attorney, Paul Livingston, and I had just had a District Court Judge rule that the POC illegally conducted meetings in violation of the State’s Open Meetings Act.

An IA investigation ensued. I videotaped the session. My attorney, Livingston, right, was assaulted and thrown to the floor by IA Sgt. John Gallegos, left. I touched Gallegos on the shoulder to try to calm him down and I was pushed against the wall. Ultimately, I was fired and criminally charged with battery.

Over the next year, there were four hearings scheduled:
An unemployment hearing with the State; the City failed to appear.
A Labor-Management Relations Board hearing, which ruled that the department had violated several sections of the union contract and recommended that the department withdraw the criminal charge and reinstate me.
The criminal battery charge, that a Metropolitan Court Judge dismissed at the end of the state’s case, with a strong admonition that it was the worse interrogation/interview he had ever seen.
A personnel hearing was scheduled, but the day before it commenced, the City asked to enter into mediation.

I was fully restored and my record was cleansed. I took a large monetary settlement and chose to end my 24 and half years with APD by retiring.

Two of the four players in my event are now lurking in the shadows of Heh’s case: Chief Schultz, left, was my Captain at the time. He said nothing and eventually, when Chief Galvin and Deputy Chief Bill Weiland refused to tell me I was fired, it fell to Schultz to deliver Galvin's termination letter. Then Lt. Michael Callaway, right, who is now a Deputy Chief, was heading Internal Affairs.

Why my history is of any significance here is that the heavy footsteps towards Heh sound very familiar.

It seems like nobody, either on the city's side or among the union leadership, bothers to read, let alone follow the ordinances, existing contracts or rules on how to enter the negotiations through the established collective bargaining process.

This is the hand of former, long time, City Councilor Vince Griego at the first publicly opened Council Guidelines Committee. The committee only opened the meeting because the union leaders, at the far end of the table, demanded access and threatened to force their way in. Griego, initially objected to the meeting being photographed, but relented when he was made aware that the committee was subject, like all other council meetings, to the State's Open Meetings Act.

The current Council did not hear from unions because the opening process was subverted.

There is no doubt in my mind that the root of this problem is the dysfunctional nature of the almost 40-year old Labor-Management Relations Ordinance. I have repeatedly called on the city to overhaul the labor relations ordinance, but it has always fallen on deaf ears.

Where the Deer and the Antelope Play

What’s Wrong With This Picture?

This Pronghorn Antelope was photographed a few years ago in the area of Northeastern New Mexico where rancher Neal Trujillo shot 39 of its species, recently near Cimarron.

It is legal in New Mexico to shoot wildlife that destroys crops, livestock or other property.

Senate Pro Tem Tim Jennings, left, a rancher himself, shepherded legislation through a few years back setting up the program.

So what’s wrong with this picture?

Trujillo made a mess of it by using a shotgun and riding an all terrain vehicle to shoot the fastest land mammals in North America. He tended to maim them and leave them to agonizingly die.

State Game and Fish Department officers found some of the injured animals later and had to put them out of their misery.

No doubt animals compete with the rancher over his crop of winter wheat and he is authorized to protect his investment by killing the animals as a last resort. However, Trujillo seems to consider himself immune from the obligation to do anything else before arriving at the last resort and then he literally adds insult to the injury by not being humane in his efforts.

Though it is lawful to kill predators, a quick read of the state statute on cruelty to animals shows there are requirements in the authorization such destruction. The important language in the "lawful justification" section is “humanely destroying a sick or injured animal.”

I’m not widely regarded as a “jump up and down while foaming at the mouth,” kind of animal protection guy. I appreciate wildlife and like to observe it; I’m not a hunter, but I won’t turn down a piece of venison either.

I understand the need to knock down wild animals that get too close to humans.

I watched with interest this week as Chicago Police tracked down a fairly large cougar and quickly shot it.

There are those who have called for the use of a tranquilizer, but such folks have no idea how quick and dangerous such an animal is and how slowly a tranquilizer takes affect.

What I find reprehensible here is the lack of engaging in a humane effort. I would have no problem if the state were to charge Trujillo with cruelty or even extreme cruelty to animals; which is defined as, intentionally or maliciously torturing, mutilating, injuring or poisoning an animal.

Not because he killed them, but specifically because, when Trujillo shot the antelopes, he didn't kill them.

If you’re going to put them down, then do a full job of it.

Justice Works

What’s Wrong With This Picture?

A Bernalillo County Metropolitan Court jury found University of New Mexico student and Air Force veteran Peter Lynch, 31, guilty of a misdemeanor count of criminal destruction of private property on Wednesday.

Lynch removed and destroyed a Mexican flag that was inadvertently left to fly over the weekend at the University’s administration building. The flag was raised during a ceremony on Friday Sept. 14, 2007, recognizing Mexican Independence Day on the coming Sunday. At the end of the day, an Air Force ROTC flag detail failed to lower the flag, believing the sponsors of the independence-day event would remove it. They didn’t.

On Monday, the Mexican flag was still flying and because of a further communication error, a different military ROTC unit’s flag detail that had just started a new monthly rotation, the flags in front of Scholes Hall were not raised.

Lynch attempted to bring what he saw as a violation of the flag code to the attention of university officials. When the UNM administration did not immediately respond, he took it upon himself to remove the flag. He destroyed the flag and presented it to UNM Air Force Studies commander, Lt. Col. Curtis Johanson. I observed Lynch yelling at Johanson, trying to catch his attention and moments later, running the opposite direction across campus.

Metropolitan Court Judge Clyde DeMersseman, left, sentenced Lynch to: six-months probation, 48-hours of community service, completion of an anger management course, and was ordered to pay restitution; the cost of the destroyed flag.

Lynch was ordered to replace the flag as part of an administrative process conducted by UNM, as a condition to continue in good standing as a student.

One of the sponsors of the on-campus celebration of the Mexican Independence Day event and owners of the destroyed flag, “El Centro de la Raza” –The Center for the Race– claimed that Lynch committed a hate crime.

So what’s wrong with this picture?

Justice works.

With the finding of the six-person jury, the arguments made by Lynch, that his destroying the Mexican flag was a lawful act because he was protecting the American flag and El Centro de la Raza’s claim of a hate crime, were tempered.

The jury seems to have gotten it right. They looked at the case as a destruction of property. The politics that have attached to this incident were not allowed to cloud the verdict. Lynch took property that was not his and destroyed it. He admitted to doing so, through his lawyer’s opening statement, and was found guilty.

He wishes, even after being sentenced, to try to excuse his actions by claiming to be a patriot.

He and his supporters continue to claim that the Mexican flag flying by it self violates federal law. Not true.

The flag code of the United States is not a criminal law. It is, at best: a guide, a mere suggestion or protocol. I am continually amazed that people who yell loudest about some “unpatriotic display” sometimes wrap themselves in the flag in violation of the same flag code.

A motorcycle group led by an old law enforcement buddy, Paul Caputo, who is a former Marine, rode to the swearing in ceremony of UNM President David Schmidly, to present him with an American flag. Members of the group made statements that they might engage in a demonstration if Schmidly were to snub them. Instead, Schmidly met and accepted the flag. Ironically, as seen in Daily Lobo photographer Javier Zamora’s picture, Schmidly wore a tie covered with American flags; a violation of the flag code.

There are too many comments on blogs and websites that are simply wrong on the meaning of the flag code and the law, to address them all.

Here are some examples of claimed flag code violations:
The American flag does not fly above any other nation’s flag, as claimed; they fly at the same level. The American flag flies to the far left when facing the display.

Veteran David Ethridge watches President Schmidly give a television interview. The display of the flag on Ethridge’s coat is a violation of the flag code.

Many question why the Lynch case arrived in court anyways? Part of the answer is found in the juxtaposition of Lynch’s own words. Many commenters point out that Lynch offered El Centro a replacement flag and a purported apology. Yet after the trial Lynch was still making statements that were inconsistent with a sincere apology.

El Centro described the original flag as, “an irreplaceable gift from a former student,” and did not accept Lynch’s offerings.

Analysis

The issues surrounding this event are very personal to those involved. Lynch was offended by what he saw as disrespecting the American flag. It bothered him so much that in his words to UNM police, he became overzealous.

Centro de la Raza felt that Lynch’s actions were a hate crime and sought prosecution as an illegal discrimination.

It was a simple act that constituted two crimes – theft and vandalism. Lynch was charged with only one crime – destruction of private property.


Several people have tried to link this event with the US Supreme Court’s ruling declaring desecration of an American flag as an unconstitutional violation of free speech. In that case, a young man, protesting the Republican National Convention in Dallas, burned an American flag that had been stolen from a pole in front of a city building. He was charged with a Texas state statute for desecration of a venerated object, the American flag. In the ruling’s footnotes, the decision points out that the young man had only been charged with the desecration; not for trespass, disorderly conduct, or arson.
Texas v. Johnson, 491 U.S. 397, Brennan, William J., Justice, (June 21, 1989) United States Supreme Court.

In Lynch’s Metropolitan Court petty misdemeanor case, he was not charged with desecration but vandalism, which seemed to be an acceptable charge under the Johnson Supreme Court ruling.

My Take

Politics aside, this is a simple case.

Had Lynch simply removed the flag and presented it to some university official, there would have been: no issue, no crime, no trial, no problem, and no debate.

Politics aside? Not likely. This event pushed too many buttons. It struck nerves for so many different people. It showed some of the great divides that our community is currently suffering. It didn’t bring out the best nature of our country.

Xenophobia, hate, intolerance, distrust, fear, false-patriotism, misunderstanding and ignorance are only some of the negative emotions that are brought to light.

The jury in the criminal justice system is a remarkable concept. People, who live in the community, are aware of what happens around them. They collectively bring experience, wisdom, reason and order to the question of guilt or innocence.

They got it right. After a trial, the presentation of evidence, witnesses and cross examination, they weighed Lynch’s right to confront his accusers and right to testify; though he chose not to take the stand, his attorney capably represented him and made his argument abundantly clear. The jury decided in less than a half-hour of deliberation.

In the end, those who wanted it got their day in court. Neither got their way. Lynch’s “patriotism” defense did not excuse his act. For the owners of the flag, Lynch’s act was not seen as a “hate crime.”

The controversy offers an opportunity for our community to talk about the issues that this event sparked. There is a divide that the jury’s finding is not currently closing.

Several posted comments on other blogs, have equated the celebration of Mexican Independence with the participants being illegal immigrants. Some suggest that members of Centro de la Raza are somehow either not citizens of the United States or are not entitled to express their pride, feelings, or perceived grievances through a group that refers to itself as “the race.” It seems that some folks are offended by the groups name and express anti-Hispanic rants, including being barred from the campus and deported. There was no indication that any illegal immigrants attended the Mexican Independence Day celebration. To the contrary, the campus events seemed to be attended by foreign, Hispanic and other students. Even I paused to listen to a band play on the plaza.

There are a few side issues worth mentioning:

I observed Lynch, the morning of the flag incident, running around the campus yelling. It had been my thought, that if I were still a uniformed police officer, he and I would have had a conversation to ascertain his behavior. In hindsight, it was pretty clear; angry, emotionally upset, but probably not mentally disturbed.

Lynch had been in the Air Force just 72-hours prior to this incident. I am glad that he no longer is in the military, as he is, what senior pilots say about young bold pilots, ”All airspeed – no azimuth.” He is all about passion, but with no discipline. He’s the kind of guy that will act brashly at the sight of the opposition’s point guard and attack instead of waiting for the full body to expose itself. Such premature actions could endanger fellow troops and give the enemy an opportunity to counter act. It is good that he is in school, because he might learn something about the flag that he had not learned as a 7-year old cub scout.

What had to be the most devastating witness in the case was UNM Air Force Studies commander, Col. Johanson. He is seen here, center, during the re-raising of the Mexican flag, held the following week as an expression of the University’s dedication to accepting foreign students in the campus community.

Johanson, on the stand, represented silently the position of military personnel and their philosophical regard for differences amongst people in our country: acceptance, tolerance, understanding, and restraint. It had been Johanson who had called UNM police about the incident.

Johanson is an Air Force Academy graduate, 22-year career officer. He wore his flight suit to court with embroidered patches on it including his: unit patch, name, rank and pilot’s wings, and an American flag. I don’t know his resume, but as a C-130 transport pilot, I doubt that he has not seen combat; he would be hard pressed to have missed it.

My buddy Sgt. Joe Schmedlap, in a posted comment on the Eye on Albuquerque rightly points out:

“Historically notable, the land where that flag was flying at UNM was part of the Republic of Texas from 1836-1845 based upon the Treaties of Velasco between the Texas republic and Mexico. In 1852 it was ceded by Texas to the US Federal government in return for the assumption of debt owed by Texas.”

The fact raises a question; why won’t New Mexico, and Albuquerque in particular, recognize the fact that between Texas independence and the end of the Mexican American War, when the current borders of New Mexico were realigned with Texas, half of what is now New Mexico was Texas?

On Albuquerque’s Old Town Plaza, there is a flag display purporting to show the flags of nations under which the city was ruled. They are Spain, Mexico, Confederate States of America, the United States of America, and the State of New Mexico. Interestingly, why is the Republic of Texas flag conspicuously missing?

The Albuquerque Journal posed an unscientific on-line poll asking the question, “Did Peter Lynch receive an appropriate penalty for destroying a Mexican flag?”

The majority, or 62.3 percent, of the 962 people participating in the week-long poll agreed with the answer, “Should have gotten a medal instead,” with 621 respondents.

The other options were: “About right for what he did,” of which there were 256 responses for 26.1 percent and “Not enough of a punishment,” received 105 responses for 10.7 percent.

In the very formulation of the response, the Journal exposes its seldom seen, but often perceived ethnic bias against Hispanics and in particular, Mexican students at UNM.

The final thought is that the flag is a symbol; meaning different things to different people and a perceived insult to one who considers them self a patriot, does not authorize or excuse violating another law. It is the symbol of “We the People.” All the people who are in the country, whether some welcome all of them or not.


The flag code should not be taken so seriously, because it is inconsistent with the First Amendment’s guarantee of free expression. It should not bother a true patriot, wrapped in the flag, when someone expresses their displeasure by destroying or burning a flag that they own.

To do otherwise would just be un-American.