That’s the question I’ve asked the attorney general to consider.
The
Theus received a $100,000-per-year pay increase from the private sector. The new contract, university officials announced at the time, included a buyout clause of almost $1 million if Theus didn’t stay for another two years.
Martin received a deferred compensation payment – which he only collects if he stays through 2012 – of $100,000, with 70 percent paid by the private sector, and a $6,000-per-month housing allowance, paid for by the private sector, that he could use if he and his wife decided to move out of the university president’s residence.
The NMSU Foundation, a non-profit organization that exists to raise cash for the university, denied my request in May for information about the donors, saying it can legally keep those lists secret. I wrote at the time about the fact that courts in a number of states have disagreed and found that state university foundations are state agencies for the purpose of public records laws and have to release such records.
My concerns about the potential for impropriety, or at least its appearance, were validated when Theus showed up at a Las Cruces City Council meeting three weeks after he received the pay increase to ask the council to approve a controversial development being proposed by a builder who has long been cozy with NMSU.
That developer, Philip Philippou of
Philippou later told me he wasn’t contributing to the compensation for Theus and Martin.
Since then:
• We learned last week that Martin would take advantage of the privately funded housing allowance. He’s building a new home on
• Theus left NMSU in June to coach the Sacramento Kings, and we learned that he wouldn’t have to pay the university any money for leaving before the end of the two-year contract that was announced in May.
That’s because, according to the Albuquerque Journal, the new deal was “never signed and activated.” The previous contract, which was apparently still in effect when Theus left, was intended to require that Theus pay the school $550,000 if he left early, but the misplacement of parenthesis, which the NMSU athletics director called an “error in drafting the contract,” meant that Theus didn’t have to pay a penny.
Was that a simple mistake, a sign that the university is playing fast and loose or an indication of a deeper problem? Read on.
Skirting open meetings, public records laws
At the regents’ July 17 meeting, board President Laura Conniff announced that the meeting would be “informational only” because, though the agenda had been posted with enough notice at the library and online, it wasn’t posted in the time required at the communications office, the Las Cruces Sun-News reported.
The regents discussed everything on the agenda at the July 17 meeting, but did not take any action. They scheduled a special meeting for Monday, properly provided notice of it, and quickly approved all agenda items at that meeting because they had already discussed them at the July 17 meeting, the Sun-News reported in a separate article.
At the time I wondered whether, if the July 17 meeting was not properly noticed, the regents had violated the state Open Meetings Act by discussing the formation of public policy, even if they did not formally vote. Though the regents don’t allow any public input at their meetings, the meeting that was not properly noticed would have been the venue for the public to learn about the formation of public policy.
It gets worse.
On the agenda for both meetings, and approved Monday, was a new agreement between NMSU and the NMSU Foundation. I’ve been awaiting the approval of this agreement because it would provide further information about the foundation’s relationship with the university. Despite approval of the agreement, according to the Sun-News, “NMSU Foundation Executive Director Rebecca Dukes (also a university vice president) would not release a copy of the document to the media Monday. She said it had not become a legal agreement yet because, even though regents had voted to approve the document, they hadn’t signed it yet.”
Since when is a document not public until it’s signed? Documents should become public once they’re included on publicly-released agendas of public meetings, to allow the public time to scrutinize them and give input before the regents vote publicly. Certainly they’re public once the regents approve them in a public meeting.
I requested a copy of the agreement Thursday in an e-mail to Dukes. She replied by writing back that “My understanding from the university’s attorney is that email records requests are not in accordance with the law.” I explained to her what the attorney general spokesman told me earlier Thursday: that “the AG believes an email request that meets all the requirements under IPRA should be treated as a written request.”
The attorney general’s compliance guide for the Inspection of Public Records Act admits the ambiguity in the statutory requirement that requests should be “written,” but states that “the best policy would treat an e-mail request to inspect public records in the same manner as a written request.” State Rep. Joseph Cervantes, an attorney who has frequently worked on open government laws, told me that “there’s lots of federal law that says it is a writing” and added that “precluding electronic requests defies the spirit of the law.” He said he will, if necessary, introduce legislation to clear up the ambiguity and clarify that e-mail requests are valid.
Dukes’ response to me was to write that the agreement between the university and foundation “is not fully executed” and won’t be until, “hopefully,” next week, because it hasn’t yet been signed by all parties. She said it won’t be released to the public until that happens.
Earlier today, university Attorney Bruce Kite informed me in an e-mail that, “generally, an e-mail request does not comply with the provisions of the Inspection of Public Records Act,” but, regardless, the agreement will be made available to me, at a cost of $1 per page, once it is “fully signed.”
I’m not sure that I’ve ever, in my eight years of focusing on open government as a journalist, come across an assertion as ridiculous as the claim that a document formally discussed and approved in a public meeting isn’t a public record. The bottom line is that the university is not only keeping secret the identities of people who are helping pay NMSU employees, but also the agreement that allows the university to accept such donations in the first place.
I’m asking for involvement by the AG, legislators
The university has been straddling – and possibly crossing – legal lines for several months. At the very least, NMSU’s leaders have created an appearance that the university may now be in the hands of special interests and skirting of open government laws.
I sent a letter to the attorney general last night, which you can read by clicking here, requesting an investigation into three issues:
• Whether, since the July 17 meeting was not properly noticed, it was legal under the Open Meetings Act for the regents to meet and discuss public policy, even though they did not take formal action.
• Whether the university violated the Inspection of Public Records Act by considering e-mail requests to be invalid and by refusing to release the agreement, even though it has been discussed and approved in a public meeting by the Board of Regents.
• Whether NMSU violated the Inspection of Public Records Act in denying my request for information about the identities of donors who contributed to the compensation for Martin and Theus.
I also sent a letter to the entire delegation of
I’m still awaiting answers on whether the attorney general will investigate and whether any lawmaker will seek an opinion. I’ll let you know what happens.