September 5, 2018

State tries to keep $2.5 million Corrections Dept. settlement under wrap

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Photo Credit: Joe Gratz cc

After almost two years of legal battles, the State of New Mexico agreed to settle a lawsuit filed against its Corrections Department. In 2015, six female employees at the state prison in Los Lunas sued the department, saying some of their male supervisors assaulted and sexually harassed them.

The six women collectively received $2.5 million according to the settlement agreement signed in January.

Their attorney, Laura Schauer Ives, said the women sued the Central New Mexico Correctional Facility to shed light on what they called a culture of demeaning female corrections officers.

The 140-page lawsuit alleged a history of aggressively sexual comments and crass words directed at female officers. One woman, according to the complaint, was targeted by some male colleagues who repeatedly called her on a jail phone while she was at work to demand sex and called her a “fucking bitch.” Another woman recounted seeing “If you don’t swallow then you should quit,” written on a dry-erase board in plain view of supervisors.

But the state agency tasked with paying the settlement refused to release the settlement specifics, saying state law requires settlements stay confidential for 180 days. The case was settled and dismissed by a state court judge in January, but instead of releasing the settlement amount in August—well beyond 180 days after the case was settled—the state’s Risk Management Division insisted the information could not be made public until next January, or a year after the settlement agreement was signed and a month after Gov. Susana Martinez leaves office.

But the attempted secrecy in this case is not unique.

Misreading the statute

According to state law, settlement claims handled by New Mexico’s Risk Management Division are required to be kept confidential for about six months. It’s unclear why the Legislature added confidentiality language when they established  the Risk Management Division decades ago, but lawyers who represent both sides in civil lawsuits seem to agree a six month delay on legal settlement specifics helps the public lose interest. Many of the top Corrections Department officials named in the lawsuit regarding the Los Lunas prison, for example, have retired or otherwise left the department. By next January, a new administration will be in place, further separating the state from the multi-million-dollar payout.

NM Political Report filed a public records request last week with the state’s General Services Department, which oversees the Risk Management Division, asking for the settlement specifics. Officials denied that request, citing section 15-7-9 of state statutes, which outlines four possible start times for the 180-day clock. According to General Services Division General Counsel Alexis Johnson, the Risk Management Division did not consider the case closed until it finished paying private attorneys the state hired for the almost three-year long legal proceedings.

“A dismissed case, even if dismissed with prejudice and without any appellate rights, is not automatically closed on the date of dismissal,” Johnson wrote in an email to NM Political Report. “Following its standard procedure, the Risk Management Division must reconcile outstanding legal fees and associated defense costs before it can close a case.”

Further, Johnson wrote, the case was closed 60 days after the last payment was made to the state’s contracted attorneys.

According to state law, one of the events that kicks off the confidentiality period is “the date the claim has been placed on closed status.”

Schauer Ives provided the settlement agreement to NM Political Report and disagreed with Johnson’s interpretation of the law. She cited language from the agreement that specifically says “the public has no right of access to any settlement agreement or the amount of the settlement for 180 days from the settlement,” and argued that the confidentiality period began when the agreement was finalized, not when the state finished paying its legal bills.

“It is unfortunate the state has defaulted to secrecy instead of having the important and timely conversations about this issue that are necessary to move forward,” Schauer Ives told NM Political Report.

The New Mexico Foundation for Open Government did not view the settlement agreement, but a spokeswoman for the organization said the General Services Department and the Risk Management Division are misreading the state statute.

“As we’re reading [the statute] the 180 days began on the day of the settlement,” New Mexico Foundation for Open Government Executive Director Melanie Majors said. “The public interest is best served by promptly providing the settlement agreement and other information as requested.”

Regardless of the original intention of the confidentiality statute, its broad wording seems to provide ample room for interpretation.

15-7-9

The New Mexico Legislature established the Risk Management Division to protect the state’s assets and it  covers state agencies, as well as public schools, some local government agencies and boards and commissions. According to the division’s website, the agency’s purview “is substantial and reaches across all of state government.”

If a major public agency or institution in New Mexico settles a lawsuit, chances are high that the settlement claim will go through the Risk Management Division and the payout amount will be kept under wraps for at least six months.

When the University of New Mexico was recently sued for allegedly retaliating against a medical resident after she told her supervisors she was raped by a colleague, the Risk Management Division handled the settlement claim, and also, at least partially paid for private attorneys to handle its case.  Risk Management also kept that settlement confidential for 180 days.

The General Services Department, which oversees the Risk Management Division, also tried to use the confidentiality statute to keep billing information for Gov. Martinez’s contract attorney a secret.

Like many other public agencies in the state, Martinez’s office hired a private attorney to handle certain legal matters, like lawsuits aimed at uncovering public records.

In June, New Mexico journalist Jeff Proctor sued the General Services Department for violating the state’s Inspection of Public Records Act (IPRA). Proctor sought billing records for Paul Kennedy, an attorney with multiple legal contracts—spanning at least three years—to represent Martinez’s office.

The General Services Department initially denied Proctor’s request, saying the contract information was considered to be attorney-client privilege. After the state’s Attorney General’s Office issued an opinion refuting the claim, the department leaned on NMSA 15-7-9 as the reason it could not provide complete billing records to Proctor. That case is still pending, but ironically, if Proctor and the General Services Department agree to a settlement, the specifics could be statutorily kept a secret until well after Martinez leaves office and her cabinet secretaries—and their top-ranking staffers—are replaced.

In the settled Corrections Department case, the General Services Department said the agreement specifics would not be public until 180 days after the department deemed the claim closed.

But according to Johnson, the department’s legal counsel, the claim was not officially closed until the Risk Management Division paid its legal bills.

“While this particular case was dismissed on January 26, 2018, the Risk Management Division continued receiving and paying related invoices until May 29, 2018,” Johnson wrote in an email to NM Political Report. “The file was closed on July 28, 2018, 60 days after payment of the last invoice.”

In other words, the Risk Management Division paid its contract attorneys and waited 60 days before deeming the claim closed. According to the state’s schedule of events, the settlement between the six women and the Department of Corrections would not have been public until January 24, 2019—or almost a month after a new governor is sworn in.

Keeping quiet

Although the settlement specifically mentions that the state does not admit guilt by agreeing to pay the six women,  Schauer Ives, who represented the six women against the Corrections Department, said the final outcome in cases like hers shine light on dangerous working situations.

“The public’s interest in this information cannot be overstated,” Schauer Ives said. “The often agreed upon confidentiality of sexual harassment settlements perpetuates toxic, hyper-sexualized environments and isolates other woman experiencing the same.”

Schauer Ives said all but one of her clients left their correctional officer jobs out of fear. A fear, Schauer Ives said, that was worse than what the women felt from the inmates they guarded.

Besides providing relief to the alleged victims, significant payouts may also spur institutional change, simply to ensure more lawsuits do not follow, Schauer Ives said.

“[The six women] continue to hope as a result of their lawsuit other women will be heard when they complain about sexual harassment within NMCD and, more importantly, that they never have to experience it.”

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