In a press conference Monday, New Mexico State Auditor Brian Colón announced his office’s findings regarding multiple secret payouts approved by former Gov. Susana Martinez’s administration. Colón said he was “disappointed” and “disgusted” with the way the Martinez administration handled 18 confidential legal settlements totalling $5 million in taxpayer money. The payouts were in response to a lawsuit filed against Martinez and her former chief of police, alleging workplace harrasment and discrimination.
“This is about abuse of power, a lack of transparency, and particularly as it relates to political appointees by our former governor,” Colón said.
The Martinez administration finalized the settlements in question just before she left office and approved by a cabinet secretary she appointed. News stories about the settlement highlighted not only a mysterious audio recording that reportedly contained a conversation between Martinez and her husband, but also an unusually long confidentiality period.
But state law still allows settlements like these to remain confidential for 180 days. Colón said he’d like to see a change in that law.
“I look forward to standing at the Legislature and explaining to them if we’re going to restore people’s trust in government, we have to change the confidentiality agreement, period,” Colón said.
Colón is not the first official to call for a revamp of the state’s confidentiality law for legal settlements.
The state of New Mexico released the specifics of another settlement on Monday from the final days of the Susana Martinez administration that showed the state paid $1 million to settle claims related to a discrimination lawsuit filed by former state employess. The state paid $900,000 to settle claims from three former Department of Public Safety employees against State Police chief Pete Kassetas and the state Department of Public Safety. The state also paid $100,000 to settle alleged violations of New Mexico’s Inspections of Public Records Act. The DPS employees, Lt. Julia Armendariz, Deputy Chief Michael Ryan Suggs and Sgt. Monica Martinez-Jones, filed a lawsuit alleging discriminatory and retaliatory behavior from Kassetas after sexual harassment and other behavior.
A New Mexico law that allows legal settlements with state agencies to be kept a secret for at least six months may get a makeover in the next legislative session.
General Services Department Secretary Ken Ortiz told NM Political Report his office, which oversees the state’s Risk Management Division, is in the process of creating a working group to address a relatively unknown statute that mandates settlements stay secret for 180 days. The same law that established the Risk Management Division, which often serves as the state’s de facto insurance provider, contains a “confidentiality of records” section, which is often referred to by its citation number 15-7-9 as legal shorthand.
That section of the statute is less than 300 words and is ambiguous about exactly when the 180 days starts. There are four instances in which the law says the clock starts ticking: when “all statutes of limitation applicable to the claim have run,” when litigation is done, when the “claim” is settled or when the claim is in “closed status.”
Ortiz said previous claims filed with Risk Management were sometimes never put into closed status, simply because someone failed to close it in division’s computer system.
“I wanted to take the human element out of 15-7-9,” Ortiz said.
The failure to “physically click on a button,” Ortiz said, would sometimes delay the start of the 180 days by an extra six months.
“What we’ve seen when we reviewed settlements is, for whatever reason, it took several months after the final action on that case for the staff to administratively close it,” Ortiz said.
That means a 180-day confidentiality period could easily run for more than a year. Last year, for example, the New Mexico Corrections Department settled a lawsuit with six women who sued the state, claiming they were sexual assaulted and harassed by their superiors. That case was settled in January 2018, but GSD’s lawyer at the time said claims were not complete until all of the state’s legal bills were paid, which did not happen until six months after the case was dismissed.
Now Ortiz said he’s working with the governor’s office and lawmakers to better define when the confidentiality period starts, and possibly address whether it should even be 180 days.
Mr. Ortiz goes to the Legislature
Ortiz said he was aware of the confidentiality period before he took the job as cabinet secretary, but was not fully aware of the issues it presented until he started getting calls from news reporters—this one included—about settlements.
“We thought, ‘This is truly tax payer money and people have a right to know,’” Ortiz said.
Ortiz said conversations about transparency also came up when State Sen. Sander Rue, R-Albuquerque, and State Rep. Linda Trujillo, D-Santa Fe, introduced a bill that would require the state to post the specifics of all human rights settlements online. Ortiz said he wants to include the two lawmakers in crafting legislation to address the issue.
New Mexico’s Republican Party condemned the Gov. Susana Martinez administration Thursday for reportedly paying out $1.7 million in confidential settlements to former state officials. “We are deeply troubled by the recent breaking news about secret payouts to state employees that appear to have violated state procedures which are supposed to protect taxpayers from paying out frivolous claims,” a press release from the party said. The party’s announcement came after KRQE-TV reported that not only did the state settle with a handful of former state employees, but that the specifics of the settlement are confidential for almost five years. Normally, New Mexico statute requires all settlements that go through the state’s Risk Management Division be kept confidential for 180 days. It’s still unclear why both the former state employees and Risk Management agreed to an unusually long confidentiality period.