June 30, 2016

Guv’s office doesn’t keep financial records of contingency fund

Gov. Susana Martinez

The governor’s office contends a taxpayer-funded account used to host dignitaries and throw parties isn’t subject to open records laws to the same extent other public funds are.

Gov. Susana Martinez

Gov. Susana Martinez

Sometimes the subject of controversy, the account catapulted into public view last winter when one of the parties its money was used for ended with police responding to noise complaints from a possibly intoxicated Martinez.

Each year, the state Legislature grants $70,000 in taxpayer money to the governor for a contingency fund, which per state law she can use for “purposes connected with obligations of the office.”

The fund is unusual in that, unlike most state government accounts filled with public money, the state Legislature exempts it from required annual audits.

But after NM Political Report filed an Inspection of Public Records Act request with the governor’s office this spring for six years worth of expense documents associated with the contingency fund, the office only provided broad summaries of the expenses.

Missing were documentation like the checks, purchase orders, reimbursements and purchase requests associated with the fund that we asked for. In their place were summary reports of the expenses with money figures but lacking details of where that money got spent beyond broad categories like “food/supplies” and “dignitary visits.”

State Auditor Tim Keller, who has frequently clashed with Martinez, previously criticized her office’s contingency fund summary reports for lacking “adequate transparency regarding the specifics of how the money is being used.”

In her response to our public records request, governor’s office Records Custodian Pamela Cason wrote that the type of “supporting documentation” NM Political Report sought from her office “is only maintained for the brief transitory period needed to create an annual roll-up.”

In other words, the “supporting documentation” NM Political Report sought out no longer exists.

Cason, in her written response, defended this practice as transparent beyond what’s required from state law.

“As you know, our Office has gone beyond the statutory requirement and instead creates and, upon request, provides quarterly roll-ups,” she wrote.

Not everyone agrees with the position.

“Nothing exempts the Governor’s office from public records laws,” Justine Freeman, a spokeswoman for Keller, said in a statement. “The public deserves the same accountability for this spending that we expect for every other tax dollar in government.”

Governor’s Office spokesmen Chris Sanchez and Michael Lonergan also didn’t respond to multiple requests seeking comment for this story. The two public employees tasked with responding to media typically do not respond to questions from NM Political Report.

To Susan Boe, the executive director of the New Mexico Foundation for Open Government, the governor’s office’s handling of the funds leaves several questions.

“Does that mean that the documentation has been in fact thrown out or destroyed?” Boe asked in an interview.

If so, state regulations suggest that the waiting time before destroying financial documents should be at least six years—the same amount of time Martinez has been in the governor’s office.

New Mexico State Records Administrator Linda Trujillo, along with the New Mexico Commission of Public Records, is tasked with maintaining and preserving state government records in New Mexico. In an interview, she pointed to two state regulations that allow state government to destroy records for accounts payable and accounts receivable. Checks, purchase orders and reimbursements would fall under this category.

In both iStock_000001334173_Smallcases, the state regulation instructs the government to “destroy six years from date audit report released.”

Because the governor’s contingency fund is exempted from audits, in this case the annual “roll-up” reports could substitute for “audit report.”

State agencies, including the governor’s office, are also required to receive approval from the State Records Center before destroying the records.

The most recent time the governor’s office sent the State Records Center a request to dispose of records that included purchase orders and payment vouchers came last fall. But it only applied to records produced before July 1, 2012 and not to any that occurred in the past four years.

State agencies also send expense reports and supporting documentation to the state Department of Finance and Administration, which processes state financial affairs. DFA spokeswoman Julia Ruetten did not respond to voicemails and emails asking whether the governor’s office sends documents associated with the contingency fund to her agency.

While Cason wrote that the financial documents are kept “only for the brief transitory period” before the roll-up report is complete, Trujillo explained that financial documentation isn’t considered a “transitory” record.

Per state regulations, government agencies don’t need to retain transitory documents. But state regulations defines transitory documents as “messages which serve to convey information of temporary importance in lieu of oral communication” that are “not required to control, support or to document the operations of government.”

Trujillo gave the example of a routine email between one state employees asking another to go to lunch. Government financial documents, Trujillo said, go well beyond this.

“Clearly what you’re asking for, those are things that are necessary for the function of government,” Trujillo said. “So that doesn’t meet the definition of transitory.”

This isn’t the first time the Martinez administration has run into controversy in how it handles the contingency fund.

Earlier this year, an audit of the governor’s office commissioned by Keller’s office took issue with the fact that her office rolls over leftover money in the account from one fiscal year to the next instead of reverting it to the general fund.

House Minority Leader Brian Egolf filed legislation to require the fund to be subject to audits like most other state funds. That legislation never received a message from the governor, meaning it could not be discussed by the legislature in the 30-day session.