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Where is Martinez’s ‘new level of transparency?’
Heath Haussamen
Gov.-elect Susana Martinez’s “bold change” was supposed to include a “new level of transparency” not seen before in state government.
In one of the first tests of that pledge, Martinez is coming up short.
The Santa Fe New Mexican requested copies of applications for state police chief and head of the Department of Public Safety from Martinez’s transition team, which is working to set up the administration before Martinez is sworn in on Jan. 1.
If Martinez had already been sworn in, the applications would be public. But because Martinez isn’t yet governor, her transition team claims, nothing about the applicants is public.
“Gov.-elect Martinez takes her responsibilities in relation to open government and transparency very seriously,” Martinez spokesman Danny Diaz was quoted by The New Mexican as saying. “The reality of the situation is that these are not public records; therefore, there is no records custodian due to the fact that there are no public funds, employees or equipment dedicated to the matter.”
N.M. Foundation for Open Government Executive Director Sarah Welsh disagrees.
“Those people are applying for state jobs, not campaign or transition team jobs – their salaries will be paid with taxpayer money, and they will be managing large state agencies,” she said. “Their applications are being received, used and held on behalf of the executive branch by the transition team.”
Appellate court ruling sets precedent
Welsh referred to a 2009, precedent-setting ruling from the Court of Appeals in favor of her organization and the Farmington Daily Times that required the City of Farmington to release applications for the job of city manager.
“In this Court’s opinion, New Mexico’s policy of open government is intended to protect the public from having to rely solely on the representations of public officials that they have acted appropriately,” Judge James. J. Wechsler wrote in the ruling. “…As a result, when, as here, the application is for a high-ranking public position, the public’s interest in disclosure outweighs the City’s concern that fewer people will apply, and, thus, disclosure is required.”
And yet, the “fewer people will apply” argument was used by the Martinez transition team in responding to The New Mexican’s request. The New Mexican reported that a “senior member of the transition team” said applicants “need to be afforded a reasonable amount of privacy. Otherwise, highly-qualified people might be reluctant to apply. Most candidates don’t tell their current employer when they are applying for a job.”
Though the precedent set in the Farmington case is relatively recent, universities have been required by law to release information about presidential finalists for a long time. Some regents have complained over the years about having to do that, but it’s worked out in the end.
And the release of finalists’ names has forced regents to involve employees, students and the public in the process – so, as Wechsler wrote, the public’s interest in disclosure outweighs any concern about fewer applicants applying.
Transition refuses to answer questions
I wanted the Martinez transition to elaborate on its reasons for not releasing the applications, so I asked for an explanation of the legalities. All I got was the same statement Diaz gave The New Mexican about Martinez taking her responsibilities to be open and transparent seriously but stating that these are not public records because “there are no public funds, employees or equipment dedicated to the matter.”
I think the Martinez transition is missing the point, so I asked these follow-up questions: Considering that the records would be public if Martinez had already been sworn in as governor, why not set an example of openness by releasing them? Is there some overarching reason that doing so would be counterproductive or cause harm that overrides setting such an example?
The transition refused to answer those questions.
This isn’t transparency
I can acknowledge that there are arguments on both sides of the debate about whether these applications are public records. But doesn’t bringing a new level of transparency to government imply that, when in doubt, you’ll err on the side of transparency instead of secrecy?
If you’re going to err on the side of secrecy, wouldn’t explaining the reasoning for that be the transparent thing to do? Doesn’t the public deserve to know why the secrecy is necessary?
Maybe the Martinez transition has fully explained its reasoning, and the simple answer is that they won’t release the applications because they don’t have to. If that’s the case, it’s secrecy at its worst and is cause for concern.
Or perhaps their reasoning is that they’re worried about discouraging applicants, even though that wasn’t an explanation Diaz gave to me. If that is their reasoning, it’s simply wrong.
I’m told that transition teams have not treated such information as public before. But that’s not the point. Martinez’s slogan – “bold change” – means doing something in a way that hasn’t been done before. There’s nothing bold about doing the same thing past transition teams have done.
Martinez’s team should either release these records, or, if there’s a compelling reason to keep them secret, explain it to the public.
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DJ, whatever you “pour over all the resumes” is most likely going to make them less transparent.
(Chuckle–Couldn’t resist.)
What about people willing to do more than the law requires and less than the law allows with respect to truth telling.
The only real limit on transparency in politics and public service is the law. Unless it breaks the law, stakeholders have a right to know the truth. How else are they to participate meaningfully in decision making that affects their interests?
It is clear from reading this thread and others, that there needs to be a clearer line drawn, between the truth that the people should know, and the truth they shouldn’t.
The placement of the line is the prerogative of the people, not of politicians and public servants.
The power is ours, the resources are ours, the truth about how they are being spent is ours; all of it.
And we should have ready access to it; access that can only be denied by transparent due process.
The power to redact should not lie in the hands of the most to redact. Let the Attorney General’s Office handle any redactions; impartially, transparently.
Got it.
Totally agreed Heath. But this organization is also interpreting the law with their opinion. I also agree interpreting the law is the courts’ job, my point was that if they are so sure of their interpretation, go to court, otherwise they should just clearly state this is their opinion and has nothing to do with interpreting the law.
Dr. J,
Yes, theirs is just an opinion on how to interpret the law, but so is Martinez’s. My only point is that you and Richard_C both interpreted the law, while my article does not. It states that there is ambiguity about the law.
I understand this organization’s opinion, but that is not a statement of fact in the law. If they think a law is being broken, then say so and file, otherwise it is just another opinion, and we know everyone has those, just like navels.
Dr. J, here’s the Foundation for Open Government’s counter argument:
Heath, if you can’t file an open records request and get these records, then I would say the law is clear. Can you file one or not? And if you do don’tyou thin it will be thrown out? Then I would say the law is clear these are not public records, que no?
Richard_C and Dr. J,
The article says there is ambiguity in the law and that there are arguments on both sides. It doesn’t say that these are public records or that they aren’t, as you are arguing.
Richard_C, you should also read the article, it says the law doesn’t apply to a Gov.elect. No one is breaking any law by not releasing tons of applications (most of which are irrelevant and ot contendors) prior to the Guv taking office. As I said before, wait until she is Guv and then you can satisfy all the looky-lou, gossipy, rumor-mongering you like when the files are released.
If a court ruling defines the law, a prosecutor (still) should be the first to follow it and the first to insist that her staff follow it.
An applicant reluctant to accept public scrutiny for an upper-level appointment may be presumed to have something to hide. In which case, the public scrutiny provides the public services of screening out the unworthy.
An applicant who cannot explain to a superior (the applicant is a subordinate? to whom?) the opportunity of a high-level public position may have problems in his or her position or in relationships which public scrutiny would disclose.
One question: is the application process the real thing or a political ploy pretending to openness. I wonder how many positions will be filled in response to “cold” applications, that is, those not encouraged. (Don’t you think that someone, Heath, should do some research and report on this effort?) I have friends who responded to the same invitation from the president-elect; they submitted detailed applications and never got so much as an acknowledgment.
Yes. Let’s get over our petty insistence that elected and appointed officials obey the Open Meetings Act and other pesky little laws.
I happen to know the name of an applicant for a cabinet position and he swore me to secrecy. I truly hope he gets the position but I fully understand why he swore me to secrecy. I question the motives of the commenters here a heck of a lot more than the motives of the gov-elect. Clear that most are sprung-loaded in the criticize position re Martinez and will continue to be throughout…….I understand a journalist’s position to annoy the comfortable but many critics will never get over that they got beat. Get over it Dems.
This issue is that earth shaking, but it could certainly show that they already do not want to follow the law. Frankly, I could care less about who has applied for work there. Maybe even my old friend Jose Garcia has! What I want to know is what kind of contacts and influence the oil and gas and mining interests will have. I hope someone will track everyone of those meetings and the subjects discussed.
Dr. J, perhaps you should read the article. The law says that these fall under the public’s right to know.
What they do in private businesses is irrelevant.
In my experience in private business, over several decades, it is very, very common to not tell your current employer when you are applying for or discussing another job with a different employer. This is just the way things are done, and confidentiality is always upheld by the headhunter agencies a well and many times pledges have to be signd to uphold the confidentiality if you are allowed to view the recruiting files. Even in academia searches, the applicants are not divulged to the public at large until the finalists are selected and they are aware and agree with that release of information to the public. That makes perfect sense, but I know government types don’t understand that.
The Santa Fe New Mexican reports they said they need to keep the names secret because,
Most candidates then, have a real problem with being candid, forthright and honest with their current employers, and should be eliminated from further consideration.
Sounds like a good weeding out process to me; screen out the ones who need to be sly.
Transparency in a republican administration? HA HA HA HA HA! Yeah, right…that’ll be the day!
Just like she promised not to cut education and medicaid but now she is. FLIP FLOP.
Another lying, power hungry republican…anyone surprised?
I’m not overly worried about the “non-transparency” issue with Martinez’ transition process at this time. If they do a good job of vetting, and ensure the appointees are ethical, qualified and credible professionals, then it should all come out in the wash. Inasmuch as this would be a refreshing change from the Richardson admin, I can see hints of cronyism lurking behind the scenes. Time will tell.
I am disappointed. In the absence of any good and ethical reason to keep the names secret, they should be disclosed. Whether or not the law requires it, is moot unless the law, the lowest standard of acceptable conduct, is highest standard of conduct to which you will hold yourself accountable.
There is no higher standard of conduct that does not include transparency and honesty .
People are motivated to be candid, forthright, and honest, or they are not. Their mindset is manifest in their conduct.
This is not the first time that Gov Elect Martinez has been less than candid, forthright and honest in response to a legitimate question.
The “law” is no guarantee of transparency. The only guarantee of transparency is transparency. This is not a mind set that only operates after January 1st. Either is operates now, or there is no reason to expect it to operate later.
Heath,
thanks for pointing out that “bold change” is only a campaign slogan. Here was the first test of change of how our state government runs and martinez failed.
Thanks for trying to keep them honest.
This appears to be a tempest in a teapot. Soon after the inauguration you can pour over all the resumes you like, as will the Senate, nothing will be hidden. If you find “smoking guns”, then start removal proceedings against the appointees. Sorry, I doubt you will find any, Gov. Martinez is not stupid.