June 2, 2017

State faces new open records suit over pay to guv’s favored attorney

Joe Gratz


A lawsuit filed Thursday afternoon in Santa Fe District Court aims to uncover how much New Mexico taxpayers shelled out for a private attorney to represent Gov. Susana Martinez’s office in a number of court cases.

Journalist Jeff Proctor* filed the lawsuit against the state’s General Services Department (GSD) for not releasing attorney Paul Kennedy’s invoices for his public work, claiming the department failed to comply with the state’s Inspection of Public Records Act (IPRA).

The suit calls for the state to release specific invoices and bills that show how much the state has paid Kennedy to represent Martinez as contract counsel in several cases. In addition to retaining Kennedy, Martinez also has access to four state employed legal staff, whose combined salaries total $341,850.

The lawsuit states by not releasing Kennedy’s billing records GSD not only violated the open records law, “but also offend the spirit and intent of the law governing matters of public concern.”

That spirit of the law, said Proctor’s lawyer Frank Davis, “is to make sure we have an informed electorate.”

“We need to know where dollars are being spent,” Davis said.

Kennedy has been contracted for at least $850,000, but it’s unclear how much he has actually been paid or for what work he’s been compensated for.

New Mexico Foundation for Open Government Executive Director Peter St. Cyr called on Martinez to direct staff at GSD to release the billing records.

“For seven years, Gov. Susana Martinez has consistently promised New Mexicans that transparency is a top priority in her administration,” St. Cyr said. “It is in the public interest for the governor to honor that commitment and to recognize the doctrine that the people have a right to know.”

A spokesman with Martinez’s office referred questions to GSD.

GSD’s attorney Alexis Johnson told NM Political Report he had just seen the lawsuit and could not comment on pending litigation.

“I have no comment at this time,” Johnson said. “I’d have to look at it, but if there’s a proceeding on file I’m not going to have a comment right away.”

NM Political Report reached out to Kennedy for a response but did not receive one by press time.

According to the lawsuit, Proctor first requested about three years’ worth of “records of payment” from the state to Kennedy last June. In a delayed response, GSD informed Proctor it would send him responsive documents by July 5, 2016. After that deadline passed and the state didn’t release the documents, Proctor filed a formal public records complaint with New Mexico Attorney General Hector Balderas, whose office is tasked with enforcing compliance with IPRA.

About a month after the initial request and a formal complaint to the AG’s office, GSD provided Proctor with three contracts between Kennedy and Martinez’s office. Those contracts contained provisions requiring Kennedy to report his expenses and services performed to the state. But the records released to Proctor did not contain those reports from Kennedy.

Besides representing Martinez in the Santa Fe Reporter lawsuit, Kennedy also represented her in two other major IPRA lawsuits. One was filed by the Associated Press and the other was filed by the former head of the New Mexico Finance Authority.

The state department turned over three contracts, two with redacted billing records, but refused to disclose specifics of Kennedy’s scope of work.

In December, Balderas’ office determined that GSD not only violated IPRA in Proctor’s request by missing key deadlines, but its officials also failed to turn over key public documents.

“The Department should have provided, at a minimum, copies of the billing records requested with redaction of specific details of the attorney services which constitute attorney-client privilege,” Assistant Attorney General Joseph Dworak wrote in a December 2016 letter to GSD’s general council.

Proctor’s attempts to uncover those records culminated in an article for the Santa Fe Reporter examining Kennedy’s professional relationship with Martinez. In the article, Proctor noted that it is not uncommon for political figures to pay for legal counsel in addition to having attorneys on staff.

Proctor also found conflicting information regarding Kennedy’s contracts. In one instance, Proctor found that the state awarded Kennedy $850,000 in contracts with hourly payments ranging from $150 to $250, depending on whether Kennedy or a lower level attorney was doing the work. In another instance, Proctor found through the state’s public database that Kennedy was awarded $716,633 in contracts but was actually paid $413,528.

According to New Mexico’s court records database, besides Martinez, Kennedy has 14 other pending criminal and civil cases in state court going back to 2013. There are also a few dozen closed cases Kennedy worked on, according to the same database.

* Proctor has written a freelance story for NM Political Report in the past and we occasionally run his stories from New Mexico In Depth. Proctor did not have any input into this story.

Update: added a response from Martinez’s office.