September 28, 2016

Judge holds HSD secretary in contempt of court

Human Services Department Secretary Brent Earnest

A federal judge ordered New Mexico Human Services Department Secretary Brent Earnest held in contempt of court for failing to comply with orders in a long-running food aid case.

The order from U.S. District Court Judge Kenneth Gonzales came down on Tuesday afternoon. The contempt order came in civil court.

“It’s extremely rare for department officials to be held in contempt by federal court,” Sovereign Hager of the Center on Law and Poverty explained. “It’s a very bad and serious thing, especially for low income people who need these programs to live. It is serious and is a huge consequence.”

The Center on Law and Poverty represents the plaintiffs in the lawsuit.

NM Political Report requested comment from an HSD spokesman Tuesday afternoon and Wednesday morning but received no response.

We will update this story and add any response from the department that we receive.

The contempt order applies to administrative and procedural failings in the department’s handling of food benefits applications.

Long-running case

The case itself dates back nearly 30 years.

In addition to the contempt order, earlier this year the court appointed a special master to oversee food and medical aid benefits programs at HSD. That special master will answer to the court, not to HSD, and will be tasked with bringing New Mexico’s benefits processing into compliance with federal law.

The special master will be paid for by HSD.

“The court has already appointed a special master and I think the meaning of the contempt order is the judge really showing HSD that he’s serious and that if they don’t come into compliance, the consequences in the future will be much, much greater,” Hager said. “He’s going through all the potential remedies.”

The judge found no evidence that Earnest “diligently attempted in a reasonable manner to comply with” the the federal court orders.

The court objected to all four objections by HSD to the judge’s findings, but Judge Gonzales wrote even if all four objections had been sustained, “there is more than sufficient evidence in the record to support a finding of contempt.”

Judge criticizes Earnest

The judge pointed out testimony where Earnest did not know about the expiration of a contract to put all language in notices about benefits at a sixth-grade reading level.

As NM Political Report reported from when Earnest testified:

Yohalem pressed Earnest to admit that HSD isn’t under contract with MAXIMUS. Earnest said he was not aware of the contract expiring and responded multiple times that the department would contract again with MAXIMUS if it had to.

“Secretary Earnest’s testimony is indicative of a general lack of awareness and managerial engagement over HSD,” the judge wrote.

The judge said this was “especially concerning” because Earnest removed Marilyn Martinez from per position as director of the department’s Income Support Division. Earnest testified he and Deputy Cabinet Secretary Sean Pearson would be more involved in that division.

“Secretary Earnest’s testimony suggests that he is not so involved,” Gonzales wrote.

The judge also noted while the department was unable to comply with the orders from the federal court that led to the contempt order, “HSD managed to develop entirely new notices and employee training, and promulgated new rules… that his Court found similarly failed to meet regulation requirements.”

These were new state work requirements for food stamps. Gonzales delayed the imposition of the requirements earlier this year—again as part of this nearly three-decade long lawsuit.

This is the same case, which NM Political Report has covered throughout the year, where HSD personnel were allegedly told by supervisors to add fake assets to some applicants for food aid through the Supplemental Nutrition Assistance Program so the applicant would no longer qualify for emergency food benefits.

Federal law requires emergency applications be processed within seven days. So by allegedly adding fake assets to the applications, HSD would have more time to evaluate the application.

Meanwhile, the practice would delay benefits to those who qualified and, worst case scenario, block benefits from those qualified to receive them.

Brent Earnest contempt of court order by New Mexico Political Report on Scribd