NMPR

Just days after a state senator called for the resignation of New Mexico Human Services Department Secretary Brent Earnest, the two kept things relatively cordial with one another in their first public meeting since then.

Sen. Jerry Ortiz y Pino, D-Albuquerque, chair of the interim Legislative Health and Human Services, gave the floor to Earnest during the Monday morning committee hearing by the committee to explain how he is addressing allegations in several court testimonies of a department policy to falsify and delay emergency food benefit applications.

โ€œI donโ€™t believe that anything has been said about what youโ€™re doing about that,โ€ Ortiz y Pino told Earnest.

Last week, Ortiz y Pino made a statement calling the alleged practice โ€œcompletely unacceptable.โ€

โ€œIf Secretary Earnest did not know this was happening, he failed to lead the agency,โ€ his statement said. โ€œIf he did know, but did nothing, then this is may be a very serious legal matter.โ€

During the hearing Monday, Earnest explained that since the allegations first surfaced in April, his department launched an internal investigation and issued a written directive to employees telling them to follow federal guidelines.

The allegations come as part of a legal motion against the state by the Center on Law and Poverty, which asked a federal court to appoint an independent monitor to direct SNAP and Medicaid application processing at HSD.

Specifically, nine former and current employees alleged in federal court that the department added fake assets to applicants who qualify for emergency aid from the federal Supplemental Nutrition Assistance Program (SNAP), commonly known as food stamps.

Employees and managers would add fake assets to overdue emergency applications that hadnโ€™t been processed within the required seven days, according to testimonies. This practice allegedly helped clear the departmentโ€™s backlog of overdue emergency SNAP applications, but applicants who qualified were then denied emergency aid.

In a statement provided to KUNM public radio last Friday, an HSD spokesman referred to the departmentโ€™s internal investigation as โ€œindependent.โ€ Ortiz y Pino questioned Earnest on how independent the internal investigation could actually be.

โ€œWhat we have available is our inspector general who does operate independent of our division,โ€ Earnest said, referring to the Income Support Division, which manages SNAP and Medicaid applications. โ€œSo he reports to me as the secretary.โ€

Ortiz y Pino responded that he had heard concern that employees โ€œmay be reluctant to be fully forthcoming with an internal investigation.โ€

So far, the State Auditorโ€™s Office is the only outside entity that announced an investigation into the SNAP fraud allegations.

The topic of retaliation against employees who first made the allegations also came up. In court, one woman said her superiors deleted emails showing evidence of her allegations after first testifying while another said sheโ€™d was being monitored more since first coming forward.

Human Services Department Secretary Brent Earnest
Human Services Department Secretary Brent Earnest

โ€œI know theyโ€™ve all expressed concerns,โ€ Earnest said. โ€œBut we take that also very seriously and we also have discussed with supervisors that we have an anti-retaliation policy, and we remind them of that.โ€

Ortiz y Pino also asked Earnest about the โ€œbrowbeatingโ€ and aggressive questioning in court earlier this month from attorney Paul Kennedy, who is representing HSD.

During that hearing, Kennedy questioned the morals of Alexandra Hancock, a Silver City-based application processor for the department who testified that her superiors reprimanded her for processing a late application the correct way instead of adding fake assets to delay the benefits.

After Hancock described herself to the court as a โ€œsocial justiceโ€ advocate for one of her reasons for coming forward, Kennedy questioned her on why an advocate would come forward with the allegations now and not two years earlier when Hancock said she first learned of the alleged fake asset practice.

Center on Law and Poverty attorney Sovereign Hager objected to the question as โ€œharassing the witness,โ€ which federal Magistrate Judge Carmen Garza sustained.

Kennedy, a former State Supreme Court justice, is a frequent lawyer for Gov. Susana Martinezโ€™s administration and also represented Jay McCleskey, Martinezโ€™s top political operative, when he was recently under federal investigation.

โ€œI just wonder if itโ€™s wise to go along with an approach that basically says, โ€˜If weโ€™re being accused of something weโ€™re going to defend ourselves, even if it later turns out to be true,โ€™โ€ Ortiz y Pino told Earnest. โ€œโ€˜And weโ€™re going to do it in a way that puts the workers that brought this to light in a defensive posture.โ€™โ€

Earnest responded by saying that โ€œhaving sat in the witness stand, browbeating is apparently the tactic that attorneys like to use in that setting.โ€

โ€œAnd Iโ€™m not saying that happened,โ€ Earnest continued. โ€œItโ€™s an uncomfortable place to be. But regardless, itโ€™s important that our employees know the canย speak freely about this.โ€

Earnest added that his department would give employees a safe place to speak up and said their union representation was available. The American Federation of State, County and Municipal Employees Council 18, which represents HSD employees, helped the employees to come forward with their allegations in federal court.

Both Sens. Cisco McSorely, D-Albuquerque, and Howie Morales, D-Silver City, criticized a statement released to media by HSD last week that attacked Ortiz y Pino after he called for Earnestโ€™s resignation.

Theyโ€™re referring toย this statement that HSD spokesman Kyler Nerison gave to select media outlets (not including NM Political Report): โ€œThis is a blatant political stunt from an out-of-touch extremist who is on record calling child abuse โ€˜acts of passion.โ€™ He has no credibility whatsoever.โ€

The โ€œacts of passionโ€ comment came in 2013 when Ortiz y Pino called child abuse crimes, โ€œacts of passion, of momentary insanity, of craziness,โ€ in response to a bill seeking increased penalties on child abusers, according to KOAT-TV.

โ€œIt just seems that by personalizing things and calling out the chairman when heโ€™s trying to do his duty is not the best policy here,โ€ McSoley told Earnest. โ€œIt was people from your own department that were making these allegations. It was not anybody else.โ€

Morales added that the statement was โ€œextremely aggressive toward our chairman.โ€

โ€œYou just stated a while ago that any employee shouldnโ€™t feel intimidated by fear,โ€ Morales said. โ€œWhat kind of assurance and comfort can we give to the employees who want to give that truth out if thatโ€™s the kind of tone thatโ€™s being sent?โ€

No lawmaker questioned Earnest about three of his officials invoking their Fifth Amendment rights in court this month and refusing to answer nearly 100 questions about the allegations and more.

The results of HSDโ€™s internal investigation are due to federal court at the end of June.

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