April 24, 2019

Archives for January 31, 2019

The Lonely Worker

In four years, my law firm went from me and my laptop to $800,000 and climbing, and suddenly we were twelve of us in newly decked out offices complete with $100,000 in telecommunications and electronics upgrades.

Obviously we’d hit a sweet spot, and we were having fun. We laughed a lot. We ate together, visited each other’s homes. We took firm ski days and watched the Rockies at Coors Field. We had crazy non-policies like “take as much vacation as you need to come to work refreshed.” We had the coolest Christmas event ever. And we did kick-ass legal work.

But then the numbers got bigger and I got serious. An accountant said our vacation policy was unsustainable — we needed one, in a real live employee manual. I wrote one but never had the heart to show it to anyone. We sat in meetings with consultants formulating heartless strategic plans we all ignored. We had an employee retreat that was just plain weird.

The worst thing I took seriously was myself. I totally blew the lesson basketball Hall-of-Famer and Orlando Magic founder Pat William put in the title of his book Humility:  The Secret Ingredient of Success. Time and chance had favored us — I’d stumbled  into doing the right thing in the right place at the right time. Work had often been a rollicking, happy social occasion. But then I decided I must  have been responsible for it, and paved Paradise, put up a parking lot, and didn’t know what we had ‘til it was gone.

We’d been in our new offices one week. My wife and I had flown  back the day before from a cushy five-day CLE at a resort in San Diego, and I was heading out to visit our new satellite office when the phone rang. It was the associate-soon-to-be-partner  we’d put in charge. “There’s something going on you need to know about,” he said.

The date was September 11th. The second plane had just hit the second tower.

Our clients — mostly small businesses — got hammered in the mini-recession that followed. As a result, so did we. I sought advice from two Denver law firm icons. They were sympathetic — they’d done that, too — expanded too much too quickly and paid for it in a downturn. A couple other people said you have to let people go — I followed their advice and let one person go — a move I mourn to this day. That’s when I decided we’ll survive or go down, but we’re doing it together.

We limped along until January 2004, when the new leader of our major referral source called to say they were “moving in a new direction” and March 31st would be the date we were officially toast. For the next three months I wrote job recommendations, we gave people their furniture and computers, sold the rest, archived files…

When I went to the office on April 1st (April Fool’s Day), the place echoed. I’d never felt so lonely in my life. Rotten timing, victim of circumstance, happens to everyone… yeah maybe, but all I could think was I miss my friends.

We don’t usually associate loneliness with work. We ought to, says Emily Esfahani-Smith in her book The Power of Meaning: Crafting a Life That Matters. She cites findings that 20% consider loneliness a “major source of unhappiness in their lives,” that 1/3 of Americans 45 of older say they’re lonely, and that close relationships at work are a major source of meaning. Former Surgeon General Vivek Murphy agrees and then some:

There is good reason to be concerned about social connection in our current world. Loneliness is a growing health epidemic.

Today, over 40% of adults in America report feeling lonely, and research suggests that the real number may well be higher.

In the workplace, many employees — and half of CEOs — report feeling lonely in their roles. “At work, loneliness reduces task performance, limits creativity, and impairs other aspects of executive function such as reasoning and decision making. For our health and our work, it is imperative that we address the loneliness epidemic quickly.

And even working at an office doesn’t guarantee meaningful connections: People sit in an office full of coworkers, even in open-plan workspaces, but everyone is staring at a computer or attending task-oriented meetings where opportunities to connect on a human level are scarce.

Happy hours, coffee breaks, and team-building exercises are designed to build connections between colleagues, but do they really help people develop deep relationships? On average, we spend more waking hours with our coworkers than we do with our families. But do they know what we really care about? Do they understand our values? Do they share in our triumphs and pains?

These aren’t just rhetorical questions; from a biological perspective, we evolved to be social creatures. Over thousands of years, the value of social connection has become baked into our nervous system such that the absence of such a protective force creates a stress state in the body.

Work And The Loneliness Epidemic: Reducing Isolation At Work Is Good For Business,” Harvard Business Review (2017).

He offers these remedies:

  • Evaluate the current state of connections in your workplace.
  • Build understanding of high-quality relationships.
  • Make strengthening social connections a strategic priority in your organization.
  • Create opportunities to learn about your colleagues’ personal lives.

And, he might have added, you might want to rethink your stingy vacation policy.

For more, see Work Loneliness and Employee Performance, Academy of Management Proceedings (2011).

If you like Kevin Rhodes’s posts, you might enjoy his new Iconoclast.blog, which focuses on several themes that have appeared in this blog over the years, such as how belief creates culture and culture creates behavior, and why growth and change are difficult but doable. You can also follow Iconoclast.blog on Facebook.

Colorado Court of Appeals: ALJ Should Apply De Novo Review to State Personnel Board Evidentiary Hearing

The Colorado Court of Appeals issued its opinion in Stiles v. Department of Corrections on Thursday, January 24, 2019.

State Personnel Board—Disciplinary Proceedings—Standard of Review.

Stiles was selected for a random drug screening while serving as a full-time correctional officer for the Department of Corrections (DOC). The day after the test, Stiles submitted a confidential incident report to DOC admitting to marijuana use and explaining the extenuating circumstances that led to it, including a bout of insomnia and personal problems. The test results came back positive for THC, the main psychoactive chemical in marijuana. The warden issued a notice of disciplinary action terminating Stiles.

Stiles appealed his termination to the Colorado State Personnel Board (Board). An administrative law judge (ALJ) conducted a hearing and issued an initial decision finding that the warden’s decision was arbitrary, capricious, and contrary to rule or law. Specifically, the ALJ found that the warden had (1) failed to candidly and honestly consider all of the evidence he procured, particularly Stiles’s lack of prior disciplinary history and his extenuating mitigating circumstances; and (2) imposed discipline that was not within the range of reasonable alternatives by failing to consider the disciplinary alternatives set forth in the DOC regulation directed at marijuana use. The ALJ rescinded Stiles’s termination and modified his discipline. On review, the Board adopted the ALJ’s initial decision.

On appeal, the DOC contended that the ALJ employed an incorrect standard of review and improperly reweighed the evidence when he reviewed the disciplinary action. A C.R.S. § 24-50-125(4) hearing is a de novo hearing at which the ALJ makes credibility, factual, and legal findings without deference to the appointing authority. Therefore, the ALJ applied the correct standard of review.

The DOC next contended that the ALJ misapplied the arbitrary and capricious standard in modifying the warden’s decision. Here, the ALJ’s decision and the Board’s order adopting it were supported by the record, including the warden’s failure to properly weigh the mitigating evidence and the absence of any prior discipline and the imposition of the most severe form of discipline for Stiles’s misconduct.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Attempted Extreme Indifference Murder Constitutes “Grave and Serious” Crime for Proportionality Purposes

The Colorado Court of Appeals issued its opinion in People v. Terry on Thursday, January 24, 2019.

Constitutional Law—Cruel and Unusual Punishment—Criminal Procedure—Postconviction Remedies.

Terry was charged in two cases with multiple offenses arising from two separate incidents. In the first incident, Terry rammed his truck into a patrol car when officers attempted to stop him for breaking into parked vehicles. In the second incident, officers responded to a report of an intoxicated man (later identified as Terry) driving his truck around a Walmart parking lot. Terry got into his truck, slammed an officer’s hand in the door, and ran over the officer’s foot as he sped away. After a chase, Terry sped toward officers and rammed the patrol cars. A jury found him guilty of attempted extreme indifference murder, second degree assault on a peace officer, two counts of first-degree criminal trespass, third degree assault on a peace officer, two counts of criminal mischief, two counts of vehicular eluding, and four habitual criminal counts. After the court adjudicated Terry a habitual criminal in a separate trial, it sentenced him to an aggregate total of 204 years in the custody of the Department of Corrections.

Terry filed pro se for postconviction relief with a request for counsel. The district court denied three of his four claims and appointed counsel to address only the one claim on which it had not already ruled. It simultaneously ordered that a copy of the motion be served on the Office of the Public Defender (OPD) and the prosecution, and instructed the prosecutor to respond to the pro se motion and any supplemental motion within 30 days of its filing. The OPD determined it had a conflict of interest, so alternate defense counsel was appointed who filed a supplemental motion raising six claims of ineffective assistance of counsel. The district court concluded that five of the six claims did not entitle Terry to relief and ordered the prosecution to respond to the remaining claim, which Terry withdrew. The district court dismissed his five claims of ineffective assistance of counsel, without first ordering the prosecution to respond.

On appeal, Terry contended that the district court erred in denying his petition for postconviction relief because Crim. P. 35(c)(3)(V) requires, in the circumstances presented here, that the prosecution respond and the defendant be allowed an opportunity to reply to that response. Crim. P. 35(c)(3)(V) does not prevent the court from ordering the prosecution to respond to only that portion of a postconviction motion that the court considers to have arguable merit. Here, the district court’s procedure fell within the bounds of prescribed procedure; it ruled on the pro se and supplemental petitions based on the motions, record, and facts and ordered the prosecution to respond to the one claim it deemed potentially meritorious. The trial court did not err, but even if it did, any error was harmless because Terry did not show prejudice.

Terry next contended that the district court erred in denying his postconviction petition because Terry sufficiently pleaded ineffective assistance of counsel. Here, (1) trial counsel’s decisions not to pursue a not guilty by reason of insanity plea or other mental health defense were objectively reasonable; (2) trial counsel’s failure to pursue a voluntary intoxication defense was strategically sound; (3) it was not error for defense counsel to decide not to pursue lesser nonincluded offenses based on trial strategy; (4) defense counsel did not err in deciding not to file a suppression motion; and (5) defense counsel did not err in failing to request a proportionality review, because attempted extreme indifference murder constitutes a per se “grave and serious” crime for purposes of an abbreviated proportionality review. Therefore, the trial court did not err in denying the postconviction motion.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/30/2019

On Wednesday, January 30, 2019, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Hayner v. City and County of Denver

United States v. Parra

Hopkins AG Supply v. Wright

United States v. Parra

Phan v. National Jewish Health

United States v. Monaco

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.