{"id":2029,"date":"2007-07-27T12:48:00","date_gmt":"2007-07-27T18:48:00","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/2007\/07\/is-nmsu-violating-government-transparency-laws\/"},"modified":"2007-07-27T12:48:00","modified_gmt":"2007-07-27T18:48:00","slug":"is-nmsu-violating-government-transparency-laws","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2007\/07\/is-nmsu-violating-government-transparency-laws\/","title":{"rendered":"Is NMSU violating government transparency laws?"},"content":{"rendered":"

\"\"<\/a>That\u2019s the question I\u2019ve asked the attorney general to consider. <\/p>\n

<\/o:p><\/p>\n

The New Mexico<\/st1:placename> State<\/st1:placetype> University<\/st1:placetype><\/st1:place> Board of Regents<\/a> stepped into a gray area in May by using money from private donors<\/a> to boost the financial compensation for President Michael Martin<\/a> and then-men\u2019s basketball coach Reggie Theus<\/a>. Since then, a number of actions raise questions about the integrity of university leaders and the decisions they are making.<\/p>\n

<\/o:p><\/p>\n

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\u2019t stay for another two years.<\/p>\n

<\/o:p><\/p>\n

Martin received a deferred compensation payment \u2013 which he only collects if he stays through 2012 \u2013 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\u2019s residence.<\/p>\n

<\/o:p><\/p>\n

The NMSU Foundation<\/a>, 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<\/a> 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.<\/p>\n

<\/o:p><\/p>\n

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.<\/p>\n

<\/o:p><\/p>\n

That developer, Philip Philippou of Las Cruces<\/st1:city>, flew Land Commissioner Pat Lyons and others, at his own expense, to the Aggies\u2019 NCAA tournament game<\/a> in Washington<\/st1:place><\/st1:state> in March. Theus\u2019 endorsement of Philippou\u2019s project raised further questions because Lyons<\/st1:city> was embroiled in his own scandal for bypassing his own bidding process and leasing the land to Philippou after the developer gave $20,500 to a political action committee that passed most of it on to Lyons<\/st1:place><\/st1:city>.<\/p>\n

<\/o:p><\/p>\n

Philippou later told me he wasn\u2019t contributing to the compensation for Theus and Martin.<\/p>\n

<\/o:p><\/p>\n

Since then:<\/p>\n

<\/o:p><\/p>\n

\u2022 We learned last week that Martin would take advantage of the privately funded housing allowance. He\u2019s building a new home<\/a> on Union Avenue<\/st1:address><\/st1:street>, complete with a pool, courtesy of a secret donor. What happens if that donor threatens to pull his funding when Martin makes a decision he doesn\u2019t like?<\/p>\n

<\/o:p><\/p>\n

\u2022 Theus left NMSU in June to coach the Sacramento Kings, and we learned that he wouldn\u2019t have to pay the university any money for leaving before the end of the two-year contract that was announced in May.<\/p>\n

<\/o:p><\/p>\n

That\u2019s because, according to the Albuquerque Journal<\/a>, the new deal was \u201cnever signed and activated.\u201d 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 \u201cerror in drafting the contract,\u201d meant that Theus didn\u2019t have to pay a penny.<\/p>\n

<\/o:p><\/p>\n

Was that a simple mistake, a sign that the university is playing fast and loose or an indication of a deeper problem? Read on.<\/p>\n

<\/o:p><\/p>\n

\n

Skirting open meetings, public records laws<\/span><\/p>\n

<\/o:p><\/p>\n

At the regents\u2019 July 17 meeting, board President Laura Conniff announced that the meeting would be \u201cinformational only\u201d because, though the agenda had been posted with enough notice at the library and online, it wasn\u2019t posted in the time required at the communications office, the Las Cruces Sun-News<\/a> reported.<\/p>\n

<\/o:p><\/p>\n

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<\/a>.<\/p>\n

<\/o:p><\/p>\n

At the time I wondered whether, if the July 17 meeting was not properly noticed, the regents had violated the state Open Meetings Act<\/a> by discussing the formation of public policy, even if they did not formally vote. Though the regents don\u2019t 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.<\/p>\n

<\/o:p><\/p>\n

It gets worse.<\/p>\n

<\/o:p><\/p>\n

On the agenda for both meetings, and approved Monday, was a new agreement between NMSU and the NMSU Foundation. I\u2019ve been awaiting the approval of this agreement because it would provide further information about the foundation\u2019s relationship with the university. Despite approval of the agreement, according to the Sun-News, \u201cNMSU 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\u2019t signed it yet.\u201d<\/p>\n

<\/o:p><\/p>\n

Since when is a document not public until it\u2019s signed? Documents should become public once they\u2019re 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\u2019re public once the regents approve them in a public meeting.<\/p>\n

<\/o:p><\/p>\n

I requested a copy of the agreement Thursday in an e-mail to Dukes. She replied by writing back that \u201cMy understanding from the university\u2019s attorney is that email records requests are not in accordance with the law.\u201d I explained to her what the attorney general spokesman told me earlier Thursday: that \u201cthe AG believes an email request that meets all the requirements under IPRA should be treated as a written request.\u201d<\/p>\n

<\/o:p><\/p>\n

The attorney general\u2019s compliance guide for the Inspection of Public Records Act<\/a> admits the ambiguity in the statutory requirement that requests should be \u201cwritten,\u201d but states that \u201cthe best policy would treat an e-mail request to inspect public records in the same manner as a written request.\u201d State Rep. Joseph Cervantes<\/a>, an attorney who has frequently worked on open government laws, told me that \u201cthere\u2019s lots of federal law that says it is a writing\u201d and added that \u201cprecluding electronic requests defies the spirit of the law.\u201d He said he will, if necessary, introduce legislation to clear up the ambiguity and clarify that e-mail requests are valid.<\/p>\n

<\/o:p><\/p>\n

Dukes\u2019 response to me was to write that the agreement between the university and foundation \u201cis not fully executed\u201d and won\u2019t be until, \u201chopefully,\u201d next week, because it hasn\u2019t yet been signed by all parties. She said it won\u2019t be released to the public until that happens.<\/p>\n

<\/o:p><\/p>\n

Earlier today, university Attorney Bruce Kite informed me in an e-mail that, \u201cgenerally, an e-mail request does not comply with the provisions of the Inspection of Public Records Act,\u201d but, regardless, the agreement will be made available to me, at a cost of $1 per page, once it is \u201cfully signed.\u201d<\/p>\n

<\/o:p><\/p>\n

I\u2019m not sure that I\u2019ve 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\u2019t 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.<\/p>\n

<\/o:p><\/p>\n

I\u2019m asking for involvement by the AG, legislators<\/span><\/p>\n

<\/o:p><\/p>\n

The university has been straddling \u2013 and possibly crossing \u2013 legal lines for several months. At the very least, NMSU\u2019s leaders have created an appearance that the university may now be in the hands of special interests and skirting of open government laws.<\/p>\n

<\/o:p><\/p>\n

I sent a letter to the attorney general last night, which you can read by clicking here<\/a>, requesting an investigation into three issues:<\/p>\n

<\/o:p><\/p>\n

\u2022 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.<\/p>\n

<\/o:p><\/p>\n

\u2022 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.<\/p>\n

<\/o:p><\/p>\n

\u2022 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.<\/p>\n

<\/o:p><\/p>\n

I also sent a letter to the entire delegation of Do\u00f1a<\/st1:placename> Ana<\/st1:placename> County<\/st1:placename><\/st1:place> state lawmakers, which you can read by clicking here<\/a>, requesting that they seek a formal opinion from the attorney general about whether the NMSU Foundation can legally keep information about its donors secret. Such a request from a lawmaker is required before the attorney general will consider the issue.<\/p>\n

<\/o:p><\/p>\n

I\u2019m still awaiting answers on whether the attorney general will investigate and whether any lawmaker will seek an opinion. I\u2019ll let you know what happens.<\/p>\n","protected":false},"excerpt":{"rendered":"

That\u2019s the question I\u2019ve asked the attorney general to consider. The New Mexico State University Board of Regents stepped into a gray area in May by using money from private donors to boost the financial compensation for President Michael Martin and then-men\u2019s basketball coach Reggie Theus. Since then, a number of actions raise questions about […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2029","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/2029","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=2029"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/2029\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=2029"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=2029"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=2029"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}