Heath Haussamen
Gov.-elect Susana Martinez’s “bold change” was supposed to include a “new level of transparency” not seen before in state government.
In one of the first tests of that pledge, Martinez is coming up short.
The Santa Fe New Mexican requested copies of applications for state police chief and head of the Department of Public Safety from Martinez’s transition team, which is working to set up the administration before Martinez is sworn in on Jan. 1.
If Martinez had already been sworn in, the applications would be public. But because Martinez isn’t yet governor, her transition team claims, nothing about the applicants is public.
“Gov.-elect Martinez takes her responsibilities in relation to open government and transparency very seriously,” Martinez spokesman Danny Diaz was quoted by The New Mexican as saying. “The reality of the situation is that these are not public records; therefore, there is no records custodian due to the fact that there are no public funds, employees or equipment dedicated to the matter.”
N.M. Foundation for Open Government Executive Director Sarah Welsh disagrees.
“Those people are applying for state jobs, not campaign or transition team jobs – their salaries will be paid with taxpayer money, and they will be managing large state agencies,” she said. “Their applications are being received, used and held on behalf of the executive branch by the transition team.”
Appellate court ruling sets precedent
Welsh referred to a 2009, precedent-setting ruling from the Court of Appeals in favor of her organization and the Farmington Daily Times that required the City of Farmington to release applications for the job of city manager.
“In this Court’s opinion, New Mexico’s policy of open government is intended to protect the public from having to rely solely on the representations of public officials that they have acted appropriately,” Judge James. J. Wechsler wrote in the ruling. “…As a result, when, as here, the application is for a high-ranking public position, the public’s interest in disclosure outweighs the City’s concern that fewer people will apply, and, thus, disclosure is required.”
And yet, the “fewer people will apply” argument was used by the Martinez transition team in responding to The New Mexican’s request. The New Mexican reported that a “senior member of the transition team” said applicants “need to be afforded a reasonable amount of privacy. Otherwise, highly-qualified people might be reluctant to apply. Most candidates don’t tell their current employer when they are applying for a job.”
Though the precedent set in the Farmington case is relatively recent, universities have been required by law to release information about presidential finalists for a long time. Some regents have complained over the years about having to do that, but it’s worked out in the end.
And the release of finalists’ names has forced regents to involve employees, students and the public in the process – so, as Wechsler wrote, the public’s interest in disclosure outweighs any concern about fewer applicants applying.
Transition refuses to answer questions
I wanted the Martinez transition to elaborate on its reasons for not releasing the applications, so I asked for an explanation of the legalities. All I got was the same statement Diaz gave The New Mexican about Martinez taking her responsibilities to be open and transparent seriously but stating that these are not public records because “there are no public funds, employees or equipment dedicated to the matter.”
I think the Martinez transition is missing the point, so I asked these follow-up questions: Considering that the records would be public if Martinez had already been sworn in as governor, why not set an example of openness by releasing them? Is there some overarching reason that doing so would be counterproductive or cause harm that overrides setting such an example?
The transition refused to answer those questions.
This isn’t transparency
I can acknowledge that there are arguments on both sides of the debate about whether these applications are public records. But doesn’t bringing a new level of transparency to government imply that, when in doubt, you’ll err on the side of transparency instead of secrecy?
If you’re going to err on the side of secrecy, wouldn’t explaining the reasoning for that be the transparent thing to do? Doesn’t the public deserve to know why the secrecy is necessary?
Maybe the Martinez transition has fully explained its reasoning, and the simple answer is that they won’t release the applications because they don’t have to. If that’s the case, it’s secrecy at its worst and is cause for concern.
Or perhaps their reasoning is that they’re worried about discouraging applicants, even though that wasn’t an explanation Diaz gave to me. If that is their reasoning, it’s simply wrong.
I’m told that transition teams have not treated such information as public before. But that’s not the point. Martinez’s slogan – “bold change” – means doing something in a way that hasn’t been done before. There’s nothing bold about doing the same thing past transition teams have done.
Martinez’s team should either release these records, or, if there’s a compelling reason to keep them secret, explain it to the public.