Merry Christmas Guvner

What’s Wrong With This Picture?

This is my annual digital Christmas card offering.

These decorations on the tree in Governor Bill Richardson’s office lobby are representative of New Mexico. On the left is a dream catcher, a Native American art made of willow, sinew, feathers, and other natural items.

The yellow globes are hand painted with the red Zia Sun as used on the New Mexico State flag.

So what’s wrong with this picture?

The picture was taken of Freelance Journalist Peter St. Cyr, center, talking with Santa Fe County Commissioner for District 1, and its Chair Harry B. Montoya, right and fellow Freelance Journalist Bryant Furlow, left, when I traveled to Santa Fe to serve a copy of a complaint and summons for Gov. Richardson and his office’s Official Records Custodian Marcia Maestas.

St. Cyr filed a complaint for declaratory and injunctive relief for violations of the right to inspect public records, earlier on Thursday in the Second Judicial District Court for Bernalillo County in Albuquerque.

The case is assigned to Judge Shannon Bacon, of the Civil Court Division XXIII.

St. Cyr brought suit after filing an inspection of public records request on November 11, 2010.

All applications for Executive Clemency received in the past six months, including applications for full pardons, commutation of sentences, conditional releases, reprieves, pardons to restore civil rights and summary reports received from the Probation and Parole Board.

On November 17, Maestas,

On November 12, 2010, I received your request to inspect certain records. Pursuant to the Inspection of Public Records Act, a response will be forthcoming within 15-days of our receipt of your request. “We have determined your request to be broad and burdensome. As such, we will need additional time to respond to your request.”

On December 9, 2010, St. Cyr wrote Maestas stating that he:

…would like to come to the office next Wednesday – in Santa Fe – to simply inspect any open applications that are pending.

On December 14, 2010, Ms. Maestas wrote:

…to your email of December 9, 2010, revising your previous request.

We still believe that your request is burdensome and/or broad due to the fact that many of our records have been boxed and prepared for archiving and retrieving those documents responsive (sic) will take time.... Accordingly, pursuant to the Inspection of Public Records Act, NMSA 1978, Sec. 14-23-10, we are entitled to an additional reasonable period of time to respond to your request.

St. Cyr responded, requesting the “pending” applications asking:

…to review any and all applications (for clemency) presently under review in the Governor’s Office.

On December 17, 2010, St. Cyr’s attorney Paul Livingston wrote Maestas to produce the requested records

The Governor’s Deputy Chief Legal Counsel Stephanie Kiger responded:

. . . as stated quite clearly, the Governor’s Office continues to work on Mr. St. Cyr’s December 9, 2010 IPRA request. It is, however, under no obligation to provide the records requested on November 11, 2010, as that request was superseded by Mr. St. Cyr’s new request of December 9, 2010.

In addition to unilaterally denying St. Cyr’s Nov. 11 request, Kiger claims that the Dec. 9 request was overly broad and burdensome and claimed the office had until Dec. 29 to provide the inspection of records.

The Governor’s office ignores the IPRA requirement to provide inspection “immediately or as soon as practicable”, and attempts to use the fallback 15-day statement.

Fifteen days added to the dates Maestas states she received the requests are:
November 12, plus 15-days is November 27, at which time Maestas had not given St. Cyr access to the documents or a date certain for the Governor’s office to provide the inspection.

Even if one accepts the December 9, clarification as a new request, superseding the November 11 request, a point St. Cyr emphatically rejects, adding15-days is December 24, not December 29.

On December 16, 2010, the Office of New Mexico Governor Bill Richardson’s Communications Director Alarie Ray-Garcia put out a press statement for immediate release:

Governor Bill Richardson to Consider Billy the Kid Pardon Petition

Ironically at the bottom of the e-mailed release is the standard boilerplate warning:

Confidentiality Notice: This e-mail, including all attachments is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited unless specifically provided under the New Mexico Inspection of Public Records Act. If you are not the intended recipient, please contact the sender and destroy all copies of this message....

One has to question the notice on a press release, “… is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited unless specifically provided under the New Mexico Inspection of Public Records Act.”

The press release recognizes the provision of the New Mexico Inspection of Public Records Act, and is, along with the petition and supporting attachments, are documents that should have been revealed to St. Cyr under his request.

If one literally follows the warning, how are journalists to disclose the contents of the press release? Of course nobody either returns such e-mails or obeys the confidentiality notice, because a press release is anything but confidential.

Richardson’s consideration of a pardon for Billy the Kid is nothing more than a sideshow, a simple distraction from weightier matters of the day. It’s cheap entertainment, brought to you by the politically elite. Randi McGinn a top lawyer in the state takes up a 147 year-old claim for free for a man who had a propensity for killing law enforcement officers.

McGinn is married to the current Chief Justice of the State Supreme Court Charles Daniels, left, whom Richardson appointed to the bench.

McGinn’s free time might be put to better service doing pro bono work for some indigent without a lawyer, or convincing her friend Richardson of being more sensitive to open government, even as he leaves office, or some worthy causes affecting people here and now.

Billy the Kid’s infamy will not be changed one way or another by the results of this “bread and circus” performance.

On December 22, 2010, New Mexican’ Political Reporter Kate Nash learned that Santa Fe Attorney Carlos Fierro who pleaded no contest to homicide by vehicle and leaving the scene of an accident involving great bodily harm and or death sought clemency from Richardson.

The family of William Tenorio, victim of Fierro’s hit-and-run, were aware of the pardon request, but efforts by at least, St. Cyr, the New Mexican and the Albuquerque Journal, and maybe others to get the same information were futile, none of them were notified by the Governor’s office.

Nash’s front-page, above the fold, lead story, ran on Dec 23, with the headline, “Fierro asks for pardon.”

Had St. Cyr been allowed to inspect the records “immediately or as soon as practicable”, he might have had a competitive advantage over other media outlets by having started early.

Posing for Furlow, this might have been St. Cyr's headline based upon his inspection, rather than Nash's actual headline, based on her access to legal sources.

After serving copies of the suit and summons, the Governor's Communications Director Alarie Ray-Garcia, released a written statement to the press:

Mr. St. Cyr's allegations are ludicrous. The governor's office has been working diligently to complete his request and is in full compliance of the law. It's a shame that he has chosen to the waste the precious time and resources of our judicial system on something so completely unnecessary.

Merry Christmas!

Analysis

Let’s review their claim, “...the governor's office has been working diligently to complete his request.”

Thanks to the debut of the New Mexico Sunshine Portal earlier this month, a quick check of the payroll records for Governor Richardson’s office shows its authorized strength is 28-exempt-positions, which includes the Governor and First Lady Barbara Richardson.

During a rare public appearance, the State's First Lady spoke in support of then, U.S. Sen. Barack Obama, during a campaign visit with working women at Flying Star, June 23, 2008, some six months after her husband abandoned his presidential aspirations.

However, eight of the positions are vacant.

Some of those eight vacant exempt positions are not filled because employees sought classified positions in state government to continue to have jobs.

One such employee was Press Assistant Caitlin Kelleher, center, who is now a Public Affairs Specialist at the New Mexico Department of Military Affairs, since about August when she began writing and photographing for the New Mexico Minute Man the official magazine of the New Mexico National Guard.

Governor Bill Richardson, right, is with Ray-Garcia, left, at a fire fighter protection bill signing in Albuquerque.

Other vacant positions in the governor’s office include: two constituent services positions: a director and deputy director, a deputy chief of staff, a deputy director of legislative services, a special assistant I, a director of boards and commissions, and an administrative assistant I.

The annualized savings of those eight vacant exempt positions is $528,902.40, however, there is no reason to believe the positions have been empty that long.

The claim by Richardson that St. Cyr’s IPRA request is too broad and burdensome may be in part because almost a third of the governor’s staff are no longer on the job. Four or five of those positions: press assistant, two constituent services, a special assistant, and an administrative assistant, are likely to have been the personnel who might have done the necessary research.

Allowing necessary staff to drift away to find safe harbors in classified positions for their once politically insecure jobs, during the lame-duck period of Richardson's term-limited final eighth year in office, doesn't make the continued requirements to carry out the mandatory, non-discretionary, and time sensitive duties, to be used as an excuse to not comply with the requirements of the law.

Had the governor’s staff been up to it’s authorized full compliment then. “working diligently” might take on an entirely different meaning.

The second comment in the Governor’s public reaction: “…and is in full compliance of the law”, is reason enough for a lawsuit to test their assertion.

This is not the first time Richardson’s office has refused to release documents. About a year ago Richardson announced 59 exempt state employee positions were eliminated for a saving of some $8.3 million. Richardson’s Deputy Chief of Staff and Communications Director Gilbert Gallegos refused to name the employees released from state service citing they would not be dignified for them to publicly reveal their names. Of course Gallegos’ reasoning fails and “dignified’ does not fall within any of the exceptions to the IPRA act.

According to New Mexico Politics with Joe Monahan, he and his alligators identified more than 20 of the 59 exempts positions terminated:
Department of Public Safety Chief Information Officer Stephen Easley,
Public Employee Relations Board Deputy Director Pilar Vaile,
NM National Guard Lawyer Shanon Riley,
NM Commission on the Status of Women Administrative Assistant Darla Aiken,
Regulation and Licensing Department Director New Mexico Securities Division Bruce Kohl,

Workforce Solutions Department Constituent Liaison Rebecca Vigil-Giron, right. The former Secretary of State was indicted on 50 counts with three others: political consultant contractor Armando Gutierrez, lobbyists Joseph Kupfer and his wife, Elizabeth Kupfer. Charges stem from work the three did for the Secretary of State's office in 2004 and 2006 on $6.3 million to produce vote-education television advertising State and federal audits could only account for $2.6 million. The main allegations pertain to filing false pay vouchers: money laundering, fraud, soliciting or receiving kickbacks, and tax evasion. Vigil-Giron had been allowed to continue her $60,000 job until she was dismissed as one of the 59-exempt employees.

Workforce Solutions Department Administrative Services Director Lloyd Garley,
Workforce Solutions Department Deputy Secretary Theresa Gomez,
Workforce Solutions Department Francis Ray,
Workforce Solutions Department Priscilla Martinez,
Workforce Solutions Department Workers Comp Division Jim Moran,
Workforce Solutions Department Nick Nieto,
Workforce Solutions Department Randy Romero,
NM Expo Attorney Nasha Torrez,
NM Expo former ABQ State Rep. Al Otero,
NM Expo Art Department Bob Cooper,
NM Expo Special Projects Leo Pacheco,
NM Expo Special Projects Harry Pavlides,
NM Expo involved with Expo construction Architect John Hooker,

Economic Development Department Office of Science and Technology Director Stephan Helegson, left, and
Indian Affairs Department Public Information Officer David Harwell.

KRQE TV Investigative Reporter Larry Barker uncovered a deception in job shuffling of exempt position employees into high or equal paying classified state jobs for the Governor's loyal political appointees.

Barker, right, also added to the list of names for the 59 exempts:
Tourism Department New Mexico Sports Authority Deputy Director Noah Trujillo,
Tourism Department New Mexico Sports Authority Administrative Assistant Patricia Duran.


Richardson refused to comment on Barker’s investigation, instead having a spokesmen state, “the Governor feels he’s going to be “screwed” on this story and doesn’t want anything to do with it,” Barker said.

Journal Staff Writer Albuquerque Thomas J. Cole wrote in a February 24, 2010, “Up Front, daily front-page news and opinion column,” entitled, “'Vacant,' But Appointees on Job”, points out that at least 17 exempt employees applied for or were in classified positions.

Cole added to the list:
Energy Department Director Oil Conservation Division Mark Fesmire,
Department of Cultural Affairs Janice Spence.

New Mexico WatchDog’s Jim Scarantino wrote an article On June 20, 2010, “Albuquerque Journal Sues Gov. Bill Richardson For Withholding Public Records.”

Scarantino included a copy of the lawsuit:

The Albuquerque Journal and Colleen Heild as a reporter for the Albuquerque Journal sued The Office of the Governor, Marcia Maestas, Custodian of Records for the office of the Governor, and John Does 1-3

The Journal/Heild v Office of the Governor/Maestas lawsuit filed June 3. 2010, is open and pending the legal proceeding leading up to a trial, with the discovery process still to come. The case is assigned to the same judge, Shannon Bacon, as is St. Cyr's.

Final Thoughts

There is little doubt that the governor’s office receives numerous clemency requests for all the listed categories found in the State Constitution Section 6 granting the Governor's power to pardon and reprieve.

Subject to such regulations as may be prescribed by law, the governor shall have power to grant reprieves and pardons, after conviction for all offenses except treason and in cases of impeachment.

The law prescribes a process for handling and vetting such requests through the Probation and Parole Board.

On request of the governor the board shall investigate and report to him with respect to any case of pardon, commutation of sentence or reprieve.

31-21-17. Executive clemency; investigation and reports.

The board’s role is gathering documents, such as: the original indictment, conviction, sentencing records, and generating the report.

Should Richardson announce any grant(s) of reprieves or pardons, it will be proof of his office’s failure to follow the Inspection of Public Records Act request. The question of inspection of those records that were reviewed and denied, like Fierro’s issue, which made its way to the public through Nash, is also proof of the violation.

As I witnessed when serving the complaint and summons, the governor's office made me fill out two logs and the receptionist time stamped the documents. There is no doubt the office's staff can track the whereabouts of every document or file at all times. Gathering up the current files pertaining to clemency requests should not have been a major task for a person familiar with office protocol By no stretch of the imagination, should it have taken more then 50 days.

Unfortunately, contrary to the spin, the real shame is the Governor's decision to not follow the law and causing a journalist, acting as a watch dog, seeking strict accountability on governmental official acts to exercise the Constitutional guarantees for assuring an open government to require using our judicial system to compel compliance.

It is for you, my readers, to decide if one or the other parties in this case is acting “ludicrous,” or is it simply the use of a rash word to distract the publics' attention from judging for themselves when government officials have refused to perform their duties.

The days of St. Cyr getting the short radio interview with this willing Governor are now in the past, yet principles sometimes must take precedence.

The watchdogs from the fourth branch of government must growl, snap, and bark; they may also nip, bite, and even sometimes maul to keep public officials remembering that it is all about, "We the People..." and it is a, "government of the people, by the people and for the people," as President Abraham Lincoln said during his Gettysburg Address, November 19, 1863.

Lincoln understood what it took to keep a country together, though he exercised the Constitution as much as any other president, he knew our strength came from government leaders trusting its own people.

In the Supreme Court of Vermont case John Doe, et al. v. Thomas P. Salmon, et al., where recipients of pardons sued to have their records of receiving a clemency kept under seal to protect their privacy, the court wrote:

Since the granting of a pardon is an official act, we turn to Chapter I, article 6 of our State constitution, which provides:

That all power being originally inherent in and [consequently] derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them

The Vermont Supreme Court went on:

As a correlative to the right of inspection of public records and documents, the custodian of those records has a legal duty to the public to accord that right. This duty is ministerial in nature and so clear and specific that no element of discretion or of official judgment is involved in its performance.

Clement v. Graham, supra, 78 Vt. at 318.

This is a case on point, meaning in the absence of a New Mexico Supreme Court ruling, another States’ Supreme Court’s finding on the same issue may be offered as persuasion.

So, at a time of giving, the citizens of New Mexico received a lump of coal from their governor.

Otherwise, may the rest of the season be bright.

(Picture from Old Town Friday night is another for my collection in my "share the light" project, as this visitor was struck by a flash while having his photograph taken.)

One can always hope for a Happy New Year!

Disclosure: I did some Para-legal work on the St. Cyr case and served the documents as a volunteer process server.