September 9, 2015

State ordered to pay legal fees to union in open records case

A Santa Fe district judge’s ruling on Wednesday afternoon awarded an education group additional money in a lawsuit against the state’s Public Education Department.

Photo Credit: Joe Gratz cc

Joe Gratz

Photo Credit: Joe Gratz cc

The ruling comes after First Judicial District Judge Sarah Singleton awarded damages to National Education Association New Mexico (NEA-NM) after the group accused PED of violating the Inspection of Public Records Act, or IPRA.

In court on Wednesday, Singleton awarded the group money for legal fees, totaling $14,071.31 according to a press release by NEA-NM following the decision.

In a press release sent out before the hearing, NEA said the judge’s determination would set a precedent on who is actually able to sue over public records violations.

“Is our government meant to be only ‘open’ for the wealthy who can afford to pay their own legal expenses to obtain Court rulings against agencies who fail to comply with the Inspection of Public Records Act?” NEA-NM President Betty Paterson asked.

After the hearing Patterson and an NEA-NM attorney called the case a “win” for them, even though the damages awarded were less than what the union’s lawyers requested.

Patterson said that while she was happy with the outcome, she was disappointed it was at the expense of taxpayers.

“The money is going to come out of the pockets of children,” Patterson said.

Legal fees

At issue during the hearing was how much PED should pay for legal fees. NEA-NM also filed other public records requests that were ultimately fulfilled.

Jerry Todd Wertheim, who represented NEA-NM, said the big takeaway from the hearing was that the court awarded the union damages based on how much legal work went into the case instead of how much attorneys charged for that work. He said he was “very pleased” that Singleton “recognized the importance of the full-market rate” of attorneys.

Attorneys for PED argued that NEA-NM’s lawyers rates were too high and that damages should only be based on what the group paid for legal counsel.

NEA-NM attorney’s argued that legal fees should be based on a “lodestar” rate or market rates for lawyers.

Singleton ultimately ruled in favor of NEA-NM, but reduced the award to 85 percent. While the judge said she would award damages based on the actual work of the lawyers, she also said the compensation would only be for the work done on a single public records request.

“If you have a case where you get records there are no damages,” Singleton said, refer referring to two other open records requests by NEA-NM.

Attorneys for PED declined to discuss the case with New Mexico Political Report and referred questions to spokesman Robert McIntyre, who did not respond to New Mexico Political Report’s questions. We will add his response if and when one is provided.

’99 percent’ claim

The case against PED started a year ago when an NEA-NM official requested documents to back up a claim by PED about teacher evaluations.

PED claimed that the previous system rated 99 percent of teachers effectively. NEA-NM and other critics of PED had long criticized the number and said it was misleading and false.

PED delayed the initial request, calling it “overbroad and burdensome.” Eventually, the department said the records did not exist.

In July, Singleton ruled that PED violated IPRA and ordered the department to pay NEA-NM almost $500, or about $5 for each day they were in violation.

New Mexico Foundation for Open Government Director Susan Boe also attended the hearing and said she sees this as a win for open government advocates.

“This shows that IPRA is still alive and you’re slapped with attorney’s fees if you don’t comply,” Boe said.