Heath Haussamen

I’ve not found a suitable buyer for NMPolitics.net, so I’m shutting down the site. Before I go, I want to leave you with some parting thoughts about the importance of finding common ground.

When I started looking for someone to purchase NMPolitics.net, I wasn’t sure what I was seeking. I knew I wanted my successor to continue the site’s journalistic integrity and its nonpartisan focus. Other than that, I was open to ideas.

Some journalists considered it but passed for various reasons. Two newspapers thought about it but decided the site’s identity was too closely tied to mine. In other words, they think NMPolitics.net and me are inseparable.

While I think otherwise, the decision was theirs to make.

In short, I’ve not found a suitable buyer for this site. Regrettably, that leaves me with one option: to shut down NMPolitics.net. I’ll leave the site up for archive purposes. Nearly seven years of work by me and others exists here. I believe it’s important to continue to provide access to those archives.

So consider this my farewell column. I want to thank you, NMPolitics.net’s readers, donors, advertisers, and others who helped make this site a success for 6.5 years. I could not and would not have done it without you.

I want to leave you with some parting thoughts:

This country works when people come together

We’re in the heat of yet another divisive election season. Countless dollars are being spent on messages that point out how different we are instead of reminding us of what we have in common. Politicians are working to divide us. Other groups are doing it. Many in the media are doing it.

In the power struggle that is the game of politics, they exaggerate our differences and ignore one key fact: What we have in common is greater than our differences.

I’m not downplaying our disputes, which are many. But at the end of the day, even our Republican governor and the GOP U.S. Senate candidate, like most on the right, believe in a government safety net, even if they think it should be smaller than it currently is. And most on the left agree that we need thriving companies, and that winning their business sometimes involves giving concessions, even if they think our government currently gives too much.

Who doesn’t want to live in a society in which we can make enough money to take care of ourselves and our families, get a good education and medical care, and have freedoms including the right to influence how our society operates? And who among us doesn’t want the same for others?

The details are where our differences lie. But when it comes down to it, we inhabit the same planet. We’re all human beings, though we may sometimes think otherwise about those with whom we disagree.

I’ve written on this topic frequently for NMPolitics.net. In my mind, one of the most notable posts came when I covered former Democratic U.S. Sen. Chris Dodd’s speech at the 2008 Domenici Public Policy Conference in Las Cruces.

Dodd traveled all the way from Washington to honor his retiring friend – the legendary Republican from New Mexico – and to talk about the civility and respect that once existed in Washington that today is sorely lacking.

“It’s important to know that this country works when people of different ideas can come together to make a difference,” Dodd said.

I firmly believe that. I believe 100 senators honestly debating a policy and looking for compromise can come to a better solution to our problems than me or any other individual can alone.

We can be better than this

But we spend too much of our time instead playing the game and ramping up the rhetoric as we jockey for power. As a result, we live in one of the most divided and dysfunctional times in our nation’s history.

I say to all of you – Democrats, Republicans and others – that we can do better than this. We can be better than this. I challenge you to be better than this.

If we spent our time focusing on common ground instead of fighting, our society would have fewer problems. I really believe it’s that simple.

I’m heading off to focus on New Mexico In Depth – a project I hope will help cut through the rhetoric and focus on what’s most important, and, in doing so, help us understand each other on a deeper level.

Understanding is the key to respect and civility, and to addressing our problems and creating a better society.

If we value our society and our future, developing a deeper understanding of each other is not optional. I hope NMPolitics.net helped some of you develop a deeper understanding of each other. It certainly did that for me.

Onward.

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Heath Haussamen

It’s time for me to focus on New Mexico In Depth, but I want this site to continue and hopefully to grow. At this point, it has a better chance of doing that if someone else takes it over.

After 6.5 years, I’ve decided to put NMPolitics.net up for sale.

I know I promised a couple of months ago, when we announced the creation of New Mexico In Depth, that NMPolitics.net wasn’t going anywhere. I hope it’s not going anywhere. But recent circumstances have made clear that it’s time for me to move on.

NMPolitics.net has been on hiatus for the last month while I dealt with some serious family issues. Being pulled out of my routine, frankly, helped me realize I had too much on my plate. Something had to give.

I’ve run this site for almost seven years as a labor of love. Building and maintaining an influential political news website has been my full-time work, and the site has grown and turned a profit every year, but, like all small businesses, it has required a lot of blood, sweat and tears.

It’s time for me to focus on New Mexico In Depth and its goal of fostering, promoting and publishing journalism in the public interest. And it’s time to pass the NMPolitics.net torch.

I believe firmly in NMPolitics.net’s two-fold, nonpartisan mission: to hold government and political leaders accountable through hard-hitting but fair reporting while also encouraging policy and political debate that promotes the common good. I want this site to continue and hopefully to grow. At this point, it has a better chance of doing that if someone else takes it over.

So I’m looking for a buyer. I’ve already reached out and started discussions with some but wanted to publicly announce my intentions in case someone I’m not thinking of is interested. Also, I didn’t want to leave you, NMPolitics.net’s loyal readers, hanging any longer. You deserve to know what’s happening.

If you’re interested in learning more about the site and possibly purchasing it, e-mail me at heath@haussamen.com or call me at 575.644.5129.

As I think back to NMPolitics.net’s first post, on March 20, 2006, and all the news articles and columns I’ve written and published since, I have fond memories. This site has been an amazing learning experience for me, and I believe it has made a difference for New Mexico.

I still have a handful of articles and columns to publish in the next week or two, so check back regularly. I hope to find a suitable buyer who will continue the site’s nonpartisan mission. I’m excited about what the future might still hold for NMPolitics.net. I will keep you updated.

Know that I won’t sell the site to anyone who isn’t committed to maintaining its journalistic integrity.

Thanks for supporting this site – and me – for the last several years. I remain grateful and humbled.

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Heath Haussamen

In the wake of the Aurora massacre we can, and perhaps should, debate the role of guns in our society. But as long as we focus on that at the expense of working to solve our core problems, we’re seeking a Band Aid instead of true societal healing.

Hours after the shooting at a movie theater in Aurora, Colo. on Thursday, a friend told me he was essentially hoping the tragedy would spark a conversation that would lead to greater gun-control measures.

I had the opposite reaction: I told him I thought it was too bad no one in the theater was carrying a concealed handgun.

But as the media facilitated a debate about gun control – and whether it was even appropriate to debate gun control in the wake of such a tragedy – I came to believe we were failing to focus on what matters most.

We could ban assault weapons such as the semi-automatic rifle used in the theater shooting and we wouldn’t stop every massacre. Some would still find a way to get their hands on such weapons; others would simply use shotguns, or hunting rifles, or handguns. And if we banned those too, they’d find other ways to spread death and chaos.

Similarly, we could allow people to legally carry concealed weapons in every state, and there would still be places where horrific crimes would occur without well-meaning, gun-toting citizens near enough to help. And there’s always the possibility that such a citizen could make a mistake and exacerbate the situation, though there are plenty of examples in America of them stopping crimes.

Though either potential solution might help combat crime, neither addresses the deeper societal question fewer have been discussing since the Aurora massacre: What drives people to commit such atrocities?

The answer is complex. Some suffer from mental illness. Some are dealing with struggles such as divorce or loss of a job. Some are hardened by what life has done to them. And those superficial stabs at providing partial answers don’t even scratch the surface.

We can be better than this

But there is a lot we can do to create a society in which fewer people are driven to commit such crimes, and the solution goes far beyond government alone. It includes our nonprofits, our churches and other religious institutions, our businesses, and each of us.

We need to work toward goals that include lower unemployment and poverty rates, more effective schools, more affordable health care, better access to services, improved infrastructure including roads and Internet lines, stronger families and community support systems, and better care for the mentally ill.

Many work toward these goals every day. But are we as a society doing enough? How many of us are involved in figuring out how government can help address these issues? How many of us donate time and money to organizations that work to fix these problems? How many of us could afford to give a little more but opt to spend it on ourselves instead?

On an individual level, how many of us are willing to truly sacrifice to help out a friend or family member in need? How many of us know someone who is depressed or on edge but aren’t offering help? How many of us have concerns about the way a neighbor or classmate is acting but fail to share those concerns with someone who can get them help they may need – and potentially stop a massacre?

Some of you are giving everything you have, and I commend you. Some are working toward solutions to society’s woes but could do more. I find myself in that category. And some are doing little or nothing at all.

We need to do more. As a society, we’re capable of doing more. We can be better than this.

We can, and perhaps should, debate the role of guns in our society. But as long as we focus on that at the expense of working to solve our core problems, we’re seeking a Band Aid instead of true societal healing.

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Heath Haussamen

As investigators scramble to figure out what’s going on at the New Mexico Finance Authority, and NMFA officials claim they were duped by a rogue employee who created a fake audit but say little else, there are questions the agency can – and needs to – answer now.

There was a lot of debate this week about whether the New Mexico Finance Authority should proceed with the hiring of an independent investigator from outside the state to get to the bottom of its fraudulent audit in an attempt to calm Wall Street’s fears.

Ultimately, State Auditor Hector Balderas and Gov. Susana Martinez are pleased that the NMFA Board cancelled the $1.275 million contract with the Washington law firm Steptoe and Johnson and subcontractors. Both essentially argued that Balderas’ special audit and law enforcement probes should come first – and NMFA had been putting its independent probe before those.

Balderas also told the NMFA Board during a special meeting on Wednesday that it could recommend to his office an outside firm to help, and it appears that will happen. The same firm may be rehired – just under new terms agreed to by Balderas.

The shift came after Balderas told the NMFA – basically the bank for government agencies in New Mexico – that it hadn’t complied with state regulations that required it to notify the auditor in writing of the facts surrounding the fraudulent audit, to recommend an outside auditor to complete the still-lingering 2011 audit, to immediately provide a list of NMFA bank account numbers and authorization to access the accounts, and to provide the auditor with the scope of Steptoe and Johnson’s planned investigation.

Balderas told NMPolitics.net he’s “pleased with the leadership of the board,” which “is now heading in the right direction in getting the agency in compliance with state law.”

Martinez spokesman Scott Darnell said the governor, who appoints the majority of members to the NMFA board, “thinks that process should be very open, and believes NMFA should cooperate fully with law enforcement and the state auditor at every turn.” He said the board’s move to cancel the contract and work with Balderas “should send a strong message about how serious the matter is being taken.”

Sen. Mary Kay Papen, who heads the NMFA Oversight Committee, wasn’t impressed. Long a fan of Balderas, she said she’s not concerned with the competence of his office. But she said Wall Street experts have advised that the state needs to bring in outside help, and New Mexico needs to take that advice. She had previously called for the NMFA Board to uphold the $1.275 million contract.

“We want to make sure that our money is safe and what we’re doing is safe,” Papen said, adding that she hopes Steptoe and Johnson is rehired.

I honestly don’t know who’s right, but I know the stakes are high. Wall Street has put the state on notice that its credit rating could be downgraded. If it is, New Mexico will have to pay higher interest rates to borrow money for public works projects including roads and schools. That means taxpayers will have to pay more for each project, which ultimately means fewer projects will be built.

Lots of questions to answer

What I do know is that NMFA has a lot of questions to answer – to the taxpayers, to Wall Street, to investigators, to everyone. Some of them it should be able to answer immediately, but to date it has not.

Among the questions:

• The fraudulent audit (which you can read here) says an exit conference was held with the firm conducting the audit on Dec. 10, 2011. Board member Paul Gutierrez has already said publicly such a conference never took place. And minutes of the board’s December 2011 meeting state that the audit committee never met that month. What of those officials who should have attended such an exit conference? If none happened, why didn’t they notice it needed to take place and had not?
• The fraudulent audit was posted on NMFA’s website and circulated on Wall Street for months, but in May, the auditor’s office flagged the agency as being late on its audit because none had been submitted to it as required by law. Why did no one at NMFA notice that it was providing an audit to Wall Street while failing to submit it to the state auditor? Why did the fake audit remain on NMFA’s website until last week, when the agency had been flagged two months earlier for not turning in an audit?
• As others have written (here and here), the audit contains obvious red flags that, in retrospect, make pretty clear that it’s not real. Why did no one at NMFA notice?
• There are monetary differences between the valid 2010 audit and the fraudulent 2011 audit. Again, how did this go unnoticed?

At best, shocking negligence

You’ll notice I’m giving NMFA the benefit of the doubt in saying this all went unnoticed. It’s certainly possible that something more nefarious happened – that, despite NMFA’s attempts to put all the blame on a rogue controller, there was a larger conspiracy. I’m not alleging that, I’m just mentioning it as a possibility.

That possibility is why NMFA needs to do a better job of communicating with Balderas and other investigators, and with the public and Wall Street. Immediately. How are we to know this agency wasn’t involved in massive, fraudulent activity and a widespread cover-up? As Balderas pointed out, we currently know nothing about NMFA’s financial health – or lack thereof.

The fraudulent audit itself may be a crime, and the head of the state Securities Division, which is investigating, says, “we have already determined that fraudulent activity was not limited to the audit report alone.”

Right now NMFA’s only answer seems to be that it doesn’t know what happened or how and that it was deceived by a rogue employee. If that’s the case, it appears others at NMFA are guilty of, at best, shocking negligence.

Let’s hope taxpayers don’t end up paying the price for that. Martinez, Balderas, Papen and others all want to calm Wall Street’s fears before the state’s credit rating takes a hit. Let’s hope they can work together to move forward despite their current disagreement on how to do it.

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Heath Haussamen

If the Las Cruces Tea Party wants to be taken more seriously, it needs to consider why so many have viewed its float as offensive and demonstrate a greater sensitivity for their feelings and opinions.

Political correctness can certainly be taken too far. But ignoring it completely can be offensive and shut down dialogue.

At best, the Tea Party in Las Cruces is guilty of such an offensive with its recent inclusion of the Confederate flag in its Fourth of July parade float.

In our society, the flag has two competing meanings. One is about states’ rights, Southern heritage and independence; the other is about slavery and racism.

Including the flag in displays might be appropriate in certain circumstances if it’s presented in the proper context. The Tea Party says it was attempting to do just that – create a float that recognized New Mexico’s history and the flags that flew over it.

The technical problems with their attempt have already been discussed widely, so I’ll mention them only quickly here: The Confederate flag probably never flew over New Mexico; if any flag of the Confederacy ever did, as local historian (and occasional NMPolitics.net contributor) Christopher Schurtz pointed out, it was probably the Stars and Bars.

Second, the Tea Party failed to include Spanish or Mexican flags on its float. Both have had a much greater and more lasting impact in New Mexico than the Stars and Bars. Any attempt to recognize this state’s history that fails to include those aspects falls far short.

Disregard for others’ opinions and feelings

But this isn’t the first time the Confederate flag has flown at a Tea Party event in Las Cruces. Stephen Jones documented another incident for the lefty blog Democracy for New Mexico in 2010.

And, as you can see in this screen shot that I took from the Las Cruces Tea Party’s website, the group has a photo of a black man – Al Sharpton – with the words “Socialist, Marxist, Maoist, Leninist, Communist” above it and, below the photo, the statement “In our midst! These vermin need to be checked at the door!”

I realize the Tea Party probably intended the use of “vermin” to refer to socialists, Marxists, etc. The image of Sharpton is actually an embedded video that, when you play it, shows a number of left-leaning people – some black, most white – talking about redistributing wealth to the poor.

But one has only to do a quick web search to find the racist underbelly of society that refers to black people as vermin. Those who call the Tea Party racist think it’s conveying exactly the message it wants to convey.

Maybe the Tea Party hasn’t thought about that, or maybe it’s simply disregarding the way some people might interpret the web page. I think it’s disregard for the opinions and feelings of others.

If I give the Tea Party the benefit of the doubt, the best-case scenario is that it has demonstrated the same disregard with its use of the Confederate flag.

‘Well, to hell with them’

Tom Cooper, the group’s treasurer, rejected the way some feel about the Tea Party using the flag in its float. The Albuquerque Journal quoted him as saying critics “need to wake up and get a life,” and, about those who view the flag as a symbol of racism, “Well, to hell with them.”

That’s an intentional and combative dismissal of the valid and understandable opinions and feelings of others.

I’ve been a defender of the Tea Party in the past. In this instance, I’ve written nothing for more than a week as I watched this controversy play out, considered various opinions and did my own research.

At the end of the day, I don’t think the Tea Party – in Las Cruces or elsewhere – is an overtly racist organization. But there are certainly some signs, including the continued display of the Confederate flag, of a culture whose people once fought and died to defend slavery.

So, in addition to an apparent heritage of racism and discrimination among some in the Tea Party, we also see a group that tends to be, at best, dense or uncaring about how its actions will be viewed by others.

In this instance, I find the Tea Party’s use of the flag – and its combative reaction since – indefensible. I understand why some see it as racist.

‘This nation truly is a wonderful melting pot’

Days ago, the Tea Party posted on its website (It’s no longer there, but here’s a screenshot) a letter that stated this:

“I think there is not a person of European descent in this community who feels slavery was a good idea, or that racism is something of value.

“The war, in fact, was one of State’s rights and economics. It is terrific that the Union won that war. If it had not, there would have been no United States to pull Europe’s tail out of the fire, twice. There would have been none of the great contributions of this nation’s people, of all races, have given to this world. This nation truly is a wonderful melting pot of the world’s people. And her measures welcome of people of all colors and races can stand as a testament of God’s good work and guidance.”

Great. Then start acting like you believe that. Regardless of whether you feel it’s fair, many people take offense at the use of the Confederate flag. People who oppose slavery and those who have supported slavery and discrimination have viewed the flag as a symbol of white supremacy. Do you really want to join the Klu Klux Klan in flying this flag in the 21st Century?

Using the flag to recognize a chapter in our history might – might – have been appropriate, if the Spanish and Mexican flags were also included and other steps were taken to ensure the Confederate flag was being recognized but not glorified. That would have demonstrated cultural sensitivity and presented a more accurate picture of New Mexico’s history.

Spanish and Mexican influences have had a lot more to do with the development of this state than the Confederacy.

Absent those flags, the Confederate flag should have been excluded.

Don’t be so insular

The combative stance the Tea Party has taken since the parade demonstrates why it’s still a fringe group, at least in Las Cruces. “To hell with them?” Not if you want to be taken seriously. The Tea Party must demonstrate a willingness to listen to the concerns of others, to try to understand others’ opinions and feelings and worldviews.

In other words, if you truly believe this nation is a “wonderful melting pot,” don’t be so insular.

Our society is built on the premise that we must work together to move forward. We can’t do that if we’re not trying to understand each other. I’ve spent a lot of time trying to understand the Tea Party, which is why I’ve ended up defending it from the bad rap I believe it often gets.

Not this time.

If the Tea Party wants to be taken more seriously, it needs to consider why so many have viewed its float as offensive and demonstrate a greater sensitivity for their feelings and opinions.

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Heath Haussamen

Two situations that have recently made headlines show how sought-after teachers’ personal information is. Teachers, like the students they work so hard to educate, are caught in the middle of a war.

I didn’t know until this weekend that, if you want to be an Albuquerque Public Schools teacher, you have to give up your right to keep personal information private.

As the Albuquerque Journal reported, the APS contract with the Albuquerque Teachers Federation requires the district to “submit to the union updated reports of all teachers’ home addresses, home phone numbers, Social Security numbers and educational experience” twice a year.

In the case of those who vote to join the union – about half of the district’s 7,260 eligible teachers and other employees – that’s perfectly understandable. They join a group that is authorized to bargain on their behalf and it gets their personal information primarily so it can contact them outside school. Fine.

But what about the other half, those who choose to not join the union? I understand that they still benefit from the union’s bargaining, but does that give APS the right to waive their legal right to privacy without their consent?

A legal right to privacy is exactly what’s at stake. APS considers employees’ home addresses, home phone numbers and Social Security numbers exempt from release under the Inspection of Public Records Act and won’t give them to anyone else. But the union contract says APS shall give them up, so give them up APS does.

If I was a non-union member who didn’t particularly like the union, or being solicited in general, I think I’d be upset. If I was a non-union member who didn’t agree to the release of my Social Security number and had a past experience with identity theft, I think I’d be livid.

The union could argue that it has a duty to inform non-union members of the increased benefits they receive after a new contract is negotiated. In fact, that’s what ATF President Ellen Bernstein was quoted by the Journal as saying.

“It’s a federal law that we negotiate (a bargaining agreement) for everybody, so we have an obligation and a right to inform everybody,” Bernstein said.

If that were all her organization sought to use non-union personal information for, I don’t think I’d see a problem.

But the union is using non-union teachers’ home addresses to influence opinion and organize, not just to disseminate information. In a May 31 letter, it attacked the state Public Education Department’s teacher evaluation proposal, saying a call for nominations to serve on an advisory council is a suspected “façade, intended to hide the fact that the team is probably preselected to do work that has a predetermined outcome.”

AFT will call on employees “to rally against the proposed changes,” the letter stated. It also urged non-union members to “join today.”

Guv’s political advertiser also wants info

That’s not the only concerning situation related to teachers’ information to recently come to light. The Public Education Department compiled a statewide list of teachers’ government e-mail addresses earlier this year and then divided it by unionized and non-unionized districts. It sent the list to Gov. Susana Martinez’s political adviser, Jay McCleskey, who runs her political action committee and isn’t a state employee.

The move has caused quite a stir, leading to an attorney general investigation and accusations from the American Federation of Teachers and others that McCleskey is plotting a political attack using government resources.

The list didn’t include personal information. PED denied McCleskey’s second request for home addresses. All PED did was put publicly-accessible information together in one document. Staffers took teachers’ government e-mail addresses off public websites and divided them up based on which districts have union contracts and which do not.

PED spokesman Larry Behrens said the list was compiled before McCleskey made his request. And McCleskey said the list Behrens sent him wasn’t what he wanted, which is why he followed up with a second request for teachers’ addresses.

But in a statement to NMPolitics.net, McCleskey acknowledged that he suggested PED should create a statewide list of teachers.

“I have long believed that information about PED efforts on education reform is not being accurately disseminated from union officials and administrators to classroom teachers and have freely shared my opinion that direct communication is the logical solution, whether e-mail or otherwise,” he said. “That’s simply good policy and commonsense.”

McCleskey said the list he requested “for political purposes” – the list of teachers’ addresses – “is nothing like the list PED developed for their own use.” He said a list “to be used for political purposes would necessarily be of personal contact information, not government contact information, and the only way to accurately update a voter file with any public list would be by matching the registered address.”

So, he said, it’s “completely illogical” to accuse PED staffers of compiling a political list when it contained no personal information.

Still, there’s the fact that Behrens divided the list by unionized and non-unionized districts. If I were a unionized teacher, I would probably suspect a political motive. Even if it doesn’t contain the personal information needed to contact teachers, such a list is a good starting point for an attempt to contact, for example, non-union teachers who might be friendlier to Martinez’s proposals.

There’s nothing wrong with McCleskey using such information if it’s available in the public record, regardless of his motive. But if PED used government resources to compile the list for the governor’s political machine, that might be illegal.

Caught in the middle of a war

The AG is investigating the possibility that PED staffers violated the Governmental Conduct Act by compiling the list of teachers for political purposes. And, back to the ATF issue, the Journal quoted APS Superintendent Winston Brooks as saying he will raise his concern about giving the union Social Security numbers next time the contract is negotiated.

Both are positive steps that help air out these important issues. The union’s access to the personal information of APS employees who didn’t consent to it being shared is concerning. And though employees can opt out of ATF mailings, Bernstein acknowledged that they are inadvertently put back on the list sometimes. Besides, even if they opt out, ATF still has their personal information.

And on the PED issue, even if Behrens and others didn’t have a political motive, their actions created the appearance of one. In addition to the dividing of the list into union and non-union districts, the fact that Behrens sent the list to McCleskey from his personal e-mail account and copied a number of Martinez administration officials on their accounts creates the appearance that this deed was intended to be off the books. Behrens has said he should have sent the list from his government e-mail account.

Most unionized teachers may think the PED situation is far worse. And perhaps non-union teachers see the release of their personal information to the union as the larger offense. I think issues in both situations are questionable.

At the end of the day, both are about lobbying teachers in a polarizing battle over education reform. There’s much at stake and tensions are high. Teachers, like the students they work so hard to educate, are caught in the middle of a war.

I’ve been discussing the issue with several people in recent days. One teacher’s comment to me stood out.

“I think teachers are smart enough to read and don’t need either unions or public officials – certainly not McCleskey – telling us what to think,” the teacher told me.

Well said.

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Heath Haussamen

Whether personal e-mail accounts should be used for public business and whether such e-mails are public record are issues that beg for clarity. I’d accept a legislative solution or, if anyone wants to take this issue to court, a judicial solution.

Martin Esquivel is a N.M. Foundation for Open Government (FOG) Board member, a media law attorney, and a 2006 recipient of FOG’s Dixon Award for championing open government.

He’s also an elected member of the Albuquerque Public Schools Board of Education who uses his personal e-mail address as his APS contact.

That means Esquivel falls into the category of public officials who are using personal e-mail to conduct official business but, I asserted earlier this week, should instead use official e-mail accounts so there’s no question they’re creating records that are subject to the state’s Inspection of Public Records Act (IPRA). I talked with Esquivel about it, and he believes the situation is more complicated than that.

First off, Esquivel said he wanted to make clear that he’s not trying to hide anything by using his personal e-mail account. He said it’s “purely a matter of convenience” – he’s trying to avoid having to juggle too many accounts.

“There’s really nothing nefarious about it,” Esquivel told me.

He said APS staffers send him notices of events and schedule meetings. They contact him using government e-mail accounts, so e-mails to and from them would turn up in response to a records request to APS for his e-mail. He told me those are “clearly a public record.”

What about other APS-related e-mails? Esquivel isn’t the only APS Board member to use a personal e-mail account. In fact, it’s not uncommon among local elected officials throughout the state. APS spokesman Rigo Chavez told me board members may communicate with constituents using personal e-mail but they’re not discussing business that might show up on a meeting agenda with each other because they’re aware of the need to avoid rolling quorums that would violate the N.M. Open Meetings Act.

‘Similar to a verbal or telephone conversation’

Esquivel told me he wanted to make clear that he doesn’t know APS Superintendent Winston Brooks’ private e-mail address and isn’t communicating with him secretly.

But there’s no doubt Esquivel communicates with constituents, and at least occasionally with other APS officials, about official APS business using his personal e-mail account. He said that’s “similar to a verbal or telephone conversation.”

That sounds a lot like what Gov. Susana Martinez’s spokesman Scott Darnell was quoted by the Albuquerque Journal as saying after e-mails showed that Martinez and others in her administration were using e-mail to discuss official business.

“There is no law that prohibits the use of personal e-mails, but there are regulations that govern which e-mail messages are public record and which are not,” the Journal quoted Darnell as saying. “Like the majority of legislators and other officials throughout the state, we occasionally communicate on personal e-mails when those communications are not considered public records.”

“These are the types of conversations that are in lieu of oral conversations,” he said. “Those oral conversations would not be recorded and preserved, and that’s why state regulations do not require that these e-mails be maintained.”

Esquivel said the difference between what he is doing and what Martinez did is intent. While his use of personal e-mail is for convenience, he accused the administration of using private e-mail accounts to avoid IPRA. He said that’s what was so concerning to FOG about the Martinez administration’s actions.

‘IPRA has not caught up with our electronic age’

Esquivel said he has no problem turning over constituent e-mails sent to his personal address.

“I don’t consider myself a records custodian, but the way I look at it, if Mr. and Mrs. Smith send me an e-mail complaining about the operations at a middle school, is there any expectation of privacy there? I don’t think so,” he said, though he added that one person who feared retaliation was recently upset with him for passing on a complaint to an APS administrator.

Esquivel’s response points to a problem. He doesn’t consider himself a records custodian. Then who should a request for those e-mails be directed to? Lack of clarity on how to obtain records is a stumbling block to requests for public records. It’s one reason I believe public officials should use public accounts for communications related to their public positions.

Esquivel said a legislative fix is needed.

“I’ve been maintaining for the last 10 years that IPRA has not caught up with our electronic age. It was not written for electronic databases and e-mails and everything else,” he said. “So there are going to be some kinks.”

‘The way we converse now’

Another “kink,” according to Esquivel, is what to do about text messages. When they relate to public business, they are arguably records that meet IPRA’s definition of documents that must be maintained and, unless they meet an exemption, made available publicly. But text messaging is “the way we converse now,” Esquivel said, “and, “If I converse with another board member, that’s not necessarily a public record. No one could force me to go back and document the conversation.”

“Does the fact that it’s in electronic form, text messages, change that?” he asked.

The same question could be asked about e-mails that Darnell and Esquivel maintain are sent instead of having an oral conversation.

FOG has urged other government agencies to follow Martinez’s lead and require all government employees to use official e-mail accounts to discuss official business. And the Attorney General’s Office weighed in two years ago, stating its opinion that the Las Vegas mayor’s e-mails related to public business were subject to IPRA regardless of whether they were sent or receiving using a public or personal e-mail account.

Esquivel said the idea that e-mails sent to and from his personal account that relate to APS business are or should be subject to IPRA “merits consideration.”

“I hadn’t really given that much thought, in terms of preserving those as public records,” he said.

This from one of the most prominent transparency lawyers in the state. Clearly, the e-mail scandal that has dogged the Martinez administration and spread beyond in recent weeks has caught lots of people off guard.

Legislative or judicial clarity needed

I believe electronic records such as e-mails and text messages already fall under IPRA’s definition of public records, which is “all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained (emphasis mine).”

You know what that means? If a government employee or official records a verbal conversation, even though he or she is not required to do so, it’s still a record that must be maintained and released publicly unless it qualifies for an exemption to IPRA. Why would an e-mail or text message be any different?

I don’t really see the gray in the situation that Esquivel does. Still, based on all the disagreement on this issue, I agree with his assertion that the situation begs for clarity.

“Clearly IPRA was not written for this age. And we’re going to have to rewrite it, revisit it and make sure it catches up with the times we’re living in,” Esquivel said.

I’d accept a legislative solution or, if anyone wants to take this issue to court, a judicial solution.

Martinez has already signaled a willingness to work with lawmakers on this topic. Her statement directing employees under her authority to use official e-mail accounts also states that she “would be pleased to work with interested parties to ensure that our records statutes and regulations are coherent, strong, practical and consistent across government.”

House Minority Leader Tom Taylor was quoted in the Albuquerque Journal today as endorsing the creation of a policy on lawmakers’ use of personal e-mail accounts, because none currently exists. I hope he and other lawmakers will also be proactive about resolving this issue for all government employees and officials in New Mexico, not just legislators, by clarifying IPRA.

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Heath Haussamen

Government officials throughout New Mexico, including legislators, should use public e-mail accounts, which are undoubtedly subject to the Inspection of Public Records Act, to discuss public business.

There’s been a lot of criticism of Gov. Susana Martinez lately because she and staffers were using private e-mail accounts to discuss public business.

Martinez took a positive step by directing all executive branch employees – including, apparently, herself – to use public e-mail accounts in the future to conduct state business.

There’s a wider issue to consider. Private e-mail use pervades many corners of government in New Mexico. Dozens of legislators use private e-mail accounts for official business and even list private addresses as their official contact information on the Legislature’s website, including Senate Majority Leader Michael Sanchez, House Majority Leader Ken Martinez and House Minority Leader Tom Taylor.

I recently requested from all three, under the state’s Inspection of Public Records Act (IPRA), all e-mails sent to and from those personal accounts for the prior 30 days.

They jointly sent me a response saying I raised an issue that was “important, interesting and complex.”

“Frankly, there are a lot of unresolved questions of how, or even whether, the Inspection of Public Records Act applies to emails on legislators’ personal email accounts,” they wrote. “Among those are whether individual legislators are considered public bodies as defined in the act, how emails to and from constituents should be treated under the act and whether individual legislators have the authority to direct policy or take official action like executive officials.”

The three suggested that we meet to discuss the issue further next time I’m up north.

‘Unresolved’ questions aren’t unresolved

I’m happy to meet with Sanchez, Rep. Martinez and Taylor, but I don’t believe the questions they raise are unresolved.

Are individual legislators considered public bodies? Of course not. But as a group, the Legislature is a public body. Records it creates are subject to IPRA, which defines a “public body” as “the executive, legislative and judicial branches of state and local governments and all advisory boards, commissions, committees, agencies or entities created by the constitution or any branch of government that receives any public funding…”

And public records, according to IPRA, are “all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business…”

To suggest that records created by an individual legislator may not be included in that definition is to read the law in an extremely narrow way that has wide implications. It would suggest that any records created by an individual county commissioner or school board member, for example, aren’t public records. It would suggest that any records created by a single member of the executive branch who doesn’t have decision-making authority, such as an administrative assistant or a low-level staffer, aren’t public records.

I’ve never seen the act interpreted that way in all my years as a journalist.

The lawmakers raised a question about how e-mails to and from constituents should be treated under the act. Do we expect correspondence to and from constituents who contact Gov. Martinez to be public records? Absolutely. Why would it be any different with legislators? The act doesn’t give the Legislature any more wiggle room than the executive.

On the three lawmakers’ final question: Whether “individual legislators have the authority to direct policy or take official action like executive officials.” It’s irrelevant. Again, IPRA doesn’t apply only to documents created by those who have the authority to direct policy or take official action. It applies to all records “used, created, received, maintained or held by or on behalf of a public body.”

Building public confidence in government

I’m admittedly not an attorney, but the way I read the law, it seems clear to me that e-mails public officials send or receive related to public business meet the state’s legal definition of public records, regardless of whether those e-mails are located on public or private servers.

I would argue that e-mails from a personal account that relate to public business are being used and held on behalf of a public body – and that’s part of IPRA’s definition of a public record.

In addition to requesting the three lawmakers’ e-mails, I’ve also requested all e-mails sent to and from Gov. Martinez’s Susana PAC account or accounts for a 30-day period. The PAC told me to send the request to Martinez’s government office. That office has promised a formal response by July 10.

I don’t know whether the governor will agree with my assertion that public officials’ private-account e-mails relating to public business are public record. I don’t know whether a court would agree with me. It’s a controversial topic.

But I do know this: Government officials throughout New Mexico, including legislators, should use public e-mail accounts, which are undoubtedly subject to IPRA, to discuss public business.

Scandal after scandal means the public is justifiably skeptical of its government. We’ve recently seen people close to Gov. Martinez, using private e-mail, create the appearance that the awarding of a state contract was an insider deal.

Officials need to seek ways to build public confidence in government. In this case, full transparency is the best way to accomplish that goal.

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Heath Haussamen

Pat Rogers has spent much of his legal career fighting for government transparency, but his recent actions helped create the appearance that the Martinez administration’s controversial contract with the Downs at Albuquerque was an insider deal.

I first met Pat Rogers many years ago when dealing with government transparency issues while a reporter at the Las Cruces Sun-News.

Rogers is an excellent sunshine lawyer who is a past president of the N.M. Foundation for Open Government (FOG), a current board member, and a 2004 recipient of the organization’s Dixon Award for fighting for open government.

But, as I wrote last week, Rogers’ recent actions helped create the appearance that the Martinez administration’s controversial contract with the Downs at Albuquerque was an insider deal.

Rogers represented the Downs in the process. He’s also the Republican National committeeman for New Mexico and a former general counsel for the state GOP.

This is what the Downs deal looks like: A company that gave lots of money to Republican Gov. Susana Martinez’s 2010 campaign won a state contract after hiring a GOP insider (Rogers) who was communicating privately about the contract, before it was awarded, with people close to Martinez.

Sending e-mails to private addresses

Since publishing last week’s column, I’ve obtained an additional three Rogers e-mails that contribute to the insider appearance of the deal, bringing the total to six.

Among the six Rogers e-mails, which were obtained and released by the left-leaning Independent Source PAC (read them here and here), are two that relate to compliance with the Open Meetings Act. Rogers sent two e-mails to Dan Mourning, the general manager of Expo New Mexico and overseer of the lease contract process, on Nov. 1, weeks before the State Fair Commission voted to award the Downs the contract.

He sent them to Mourning’s personal e-mail address, not his government address.

In the first, Rogers advised Mourning that the State Fair Commission’s Open Meetings Act resolution didn’t allow members to participate in meetings by telephone. He also wrote that he would have some additional notes on Commissioner Charlotte Rode’s “flagrant open meetings act violations.” Rode has been the most vocal critic of the way the Martinez administration handled the lease process.

Less than an hour after that first e-mail, Rogers sent additional notes in a second e-mail. Rogers then forwarded both e-mails to Martinez’s deputy chief of staff for boards and commissions, Ryan Cangiolosi, using Cangiolosi’s Martinez campaign e-mail address rather than his government address. Rogers also forwarded the e-mails to Martinez’s political adviser Jay McCleskey, who is not a state employee.

Rogers sent the other four e-mails provided by Independent Source PAC to Cangiolosi’s campaign e-mail address. He also sent two of them to McCleskey. They all appear to relate to the Downs deal, and at least one indicates a chummy relationship: In it, Rogers referred to “Mr. McCluskey” kissing Albuquerque Journal reporter Charles Brunt’s “posterior” and being involved in “the erosion of the executive branches’ authority and majesty.”

In that same Sept. 1 e-mail he sent to Cangiolosi and copied to McCleskey, Rogers also wrote that his “position is that Hossie needs to run everything” – an apparent reference to State Fair Commissioner David “Hossie” Sanchez of Albuquerque that leaves little doubt about the topic of the e-mail, especially given that Brunt covered the Downs deal.

Appearance of an insider deal

Martinez’s spokesman says Cangiolosi’s e-mails were illegally intercepted and he never received them. But whether one of the people close to Martinez received the e-mails isn’t the point of this column.

Rogers’ actions are.

I was concerned several years ago when Rogers became the GOP’s national committeeman from New Mexico. He was a member of the FOG board’s executive committee at the time, and I wondered how he would be able to juggle heavy involvement in a nonpartisan government watchdog organization with such a partisan position.

Now my concern has risen to a level that compels me to speak out.

There would be nothing wrong with Rogers, through official channels and on behalf of his client, communicating with the State Fair Commission or the Governor’s Office to express concern about potential Open Meetings Act violations and to lobby for the contract. In fact, as I pointed out in my previous column, he did lots of communicating about this deal through official channels.

But these e-mails show that Rogers was also communicating about potential Open Meetings Act violations and other issues related to the contract with people close to Martinez privately – hidden from the government sunshine for which he’s spent so much time fighting. That contributes to the appearance that this was an insider deal.

Sunshine group under a cloud

As a journalist who has focused often on government transparency and as a member of FOG, I believe Rogers’ continued membership on FOG’s board of directors casts a cloud over the organization.

I hate to say it, because Rogers has spent much of his career fighting for government transparency and done lots of good work, but, for the sake of the integrity of the organization, Rogers’ membership on the FOG board needs to come to an end.

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Heath Haussamen

A company that donated to the governor’s campaign won a lucrative state contract after hiring a political insider who was communicating privately with at least one person in the governor’s inner circle before the contract was awarded. Think I’m talking about Bill Richardson? Think again.

While a candidate for governor in 2010, Susana Martinez worked hard to convince New Mexicans that state government was corrupt.

For example, former Gov. Bill Richardson and Lt. Gov. Diane Denish created “one of the most corrupt state governments in New Mexico history where ‘pay-to-play’ has become a household term,” Martinez wrote in a guest column for NMPolitics.net.

Martinez promised to do things differently.

“The acceptance of a culture of corruption will finally come to an end, and a new culture of zero tolerance and responsibility will be instilled in the Roundhouse as we once again serve the people we represent,” she wrote in that same column.

Well, we haven’t seen proof of actual corruption. But the appearance created by the recent revelation that Martinez insiders, including some staffers, have discussed public business using private e-mail accounts smacks of the same sort of activity that got Richardson in so much trouble.

The Downs deal

The most damning example yet was revealed Tuesday when the left-leaning Independent Source PAC released a new batch of e-mails it had obtained. The three e-mails, sent from attorney Pat Rogers to people close to Martinez, relate to the awarding of a contract for a 25-year lease at the state fairgrounds and were sent after the bidding process was complete but before the State Fair Commission approved the lease.

Rogers represented the Downs at Albuquerque, which had already been recommended and ultimately won the contract. Companies have the right to lobby for contracts, and there are lots of e-mails Rogers sent to Martinez officials’ government accounts, proving he did much of his communication through official channels.

What’s unique in this instance is that Rogers sent the three e-mails to Deputy Chief of Staff Ryan Cangiolosi’s campaign e-mail account. Two of them also went to Martinez’s political adviser, Jay McCleskey, who is not a state employee.

In one e-mail, Rogers told Cangiolosi and McCleskey that a state fair commissioner who cried foul over the Downs at Albuquerque deal had copied an Albuquerque Journal reporter on an e-mail she sent to an official involved in the process.

“I need 5 minutes of your time, quickly, this am, now,” Rogers’ e-mail states.

As NMPolitics.net reported today, the Martinez administration claims the e-mails to Cangiolosi were “illegally intercepted” and he never received them. Regardless, the situation raises questions about what other off-the-record communications Rogers had with people close to Martinez about the Downs deal.

Why is that important? Rogers is a GOP insider. He’s the Republican National committeeman for New Mexico and a former general counsel for the state GOP. His client won the contract in question after giving at least $70,000 to Martinez’s 2010 campaign (it also gave $50,000 to Martinez’s opponent, Denish).

And now we have evidence that Rogers was communicating or attempting to communicate about the contract, using private e-mail, with a Martinez government staffer and her political adviser – people who have influence.

Martinez promised to be different

It’s true that we don’t know the full context of the e-mails, but the context doesn’t really matter. The point is this: A company that gave lots of money to Martinez’s 2010 campaign won a lucrative contract after hiring a GOP insider who was communicating privately about the contract, before it was awarded, with, at the very least, McCleskey – who Martinez has called “a top adviser.”

How is that different than what Richardson did?

There’s one important difference: There were too many situations like this in the Richardson years to track them all. We haven’t seen as many from Martinez. That’s an improvement.

But it appears that such situations are still occurring.

I’m not calling Martinez or her administration corrupt. We’ve not seen proof of actual graft. However, we usually didn’t see proof of actual pay-for-play in instances in which Richardson donors won state contracts. That didn’t stop Martinez from working to convince voters – successfully – that Richardson’s actions were actual corruption.

And she promised to be different.

Avoiding the appearance of impropriety

I understand that New Mexico is a small state and many of us have ties that create awkward ethical situations from time to time. We wear many hats. I’ve disclosed repeatedly that I’m friends with Bill McCamley, who is a candidate for a state House seat this year.

In an ideal world, that would mean I never cover McCamley’s races. But I don’t have the resources to pass an entire race off to someone else. So I do the next best thing – be fully transparent about the situation and let you hold me accountable for providing fair coverage.

Here’s another example of the lengths I believe those who have influence over the public debate have to go at times to avoid the appearance of impropriety. Awhile back I was cited for running a stop sign in Las Cruces. I didn’t believe I had run the stop sign, and considered contesting the ticket. I had every right to contest it.

But that would have meant pleading my case before one of two municipal judges, and I had written about both having run-ins with the Judicial Standards Commission. I didn’t want to create a situation in which, if I wrote positive stories about the judge, people would question the potential appearance of a quid pro quo: the dismissal of my ticket in exchange for more favorable coverage.

So I paid the fine.

Establishing that you have nothing to hide

I’m not saying Rogers shouldn’t represent a company seeking a state contract. That’s his choice. But if he’s going to do it, he’d better make damn sure the situation is as transparent as possible. He should know that, given that he is on the board of the N.M. Foundation for Open Government and one of the best government transparency lawyers in the state. All communications should be through official channels – to government e-mail accounts, for example – so there’s a public record. Creating a public record establishes that you have nothing to hide.

Independent Source PAC’s Michael Corwin told me that, in response to a records request, he received “a whole bunch” of e-mails that Rogers sent to Martinez officials’ government accounts during the lease process. That’s great. It’s what should have happened with every e-mail. The fact that it wasn’t raises further questions about why Rogers sent some to private addresses.

McCleskey’s request for information from the Public Education Department, which also recently came to light, creates a similarly negative appearance. McCleskey first made the request verbally to public information officer Larry Behrens. Behrens sent his initial response from his personal e-mail account to McCleskey. The personal e-mail accounts of high-raking Martinez administration officials were copied on the response.

That creates the appearance that the request was to be off the books – an appearance that was compounded by the fact that Behrens separated union teachers from non-union teachers for McCleskey before sending him a list of teachers’ e-mail addresses.

That apparently wasn’t what McCleskey wanted, and his consulting business later filed a formal, written request for teachers’ addresses and received a formal denial.

McCleskey should have used such formal channels from the start.

It’s not because McCleskey isn’t allowed to pick up the phone and request documents. McCleskey, like anyone else, is entitled to request information from government, and the Inspection of Public Records Act allows verbal requests. But McCleskey should instead make written, official requests to create public records and establish that he’s using formal channels, not insider status, to get records.

Martinez’s next step

It’s possible Martinez wasn’t aware of Rogers’ e-mails to people close to her about the state fairgrounds lease. And Behrens’ response to McCleskey using his personal e-mail was sent to Martinez’s susana2010.com address that her administration says was compromised, so it’s possible she never saw it.

Other e-mails that came to light recently show that Martinez was discussing Corrections Department business with staffers using a political action committee e-mail account.

Martinez took a positive step last week by ordering state government employees to use state e-mail when conducting official business – an order that apparently also applies to herself. Now she needs to take the next step and direct others around her, such as McCleskey and Rogers, to use official channels when they communicate with her administration about official business.

Otherwise, the appearance of special treatment for insiders created by these e-mails – the very same appearance Martinez correctly criticized Richardson for creating – will remain.

This commentary has been updated to clarify that Rogers sent his e-mails after the bidding process was complete but before the contract was awarded. An earlier version incorrectly stated that he sent them before the bidding process was complete.

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