By Daniel Libit
Journalist Jeff Proctor, who filed a public records lawsuit last June against New Mexico Gov. Susana Martinez, after her administration refused to turn over billing records showing how much her contract attorney charged state taxpayers, tells NMFishbowl.com that the parties have now reached a settlement agreement.
“In the very near future, I am going to be writing and publishing a story based on documents I obtained as a result of that litigation,” says Proctor, who currently covers criminal justice for New Mexico In Depth and the Santa Fe Reporter.
Proctor revealed this update in the latest episode of The NMFishbowl Podcast, where we discussed the importance of and impediments to governmental transparency in the Land of Enchantment. You can listen to our conversation by clicking below (or download it on iTunes here):
Martinez, whose two-term governorship has now wound down to a final month, originally campaigned in 2010 on the pledge/slogan to have the most transparent administration in New Mexico history — a laughable, if not contemptuous, claim in retrospect. Proctor’s lawsuit was just one in a series of public records civil complaints, filed against Martinez’s administration, in which litigants prevailed with either favorable judicial rulings or settlements.
Initially, Martinez denied Proctor’s Inspection of Public Records Act requests for her legal bills, by citing attorney-client privilege.
“I, for once in my life, wasn’t the sort of shouting-at-the-rain problem child, and I went through the formal processes,” Proctor says. He filed a complaint with the Attorney General’s Open Government Division, which determined that attorney-client privilege didn’t apply and that Proctor should be given the invoices from prominent attorney Paul Kennedy, who represented Martinez’s administration in a handful of cases over controversial matters.
Ever recalcitrant, Martinez next tried to invoke an arcane legal statute (15-7-9), which deals with the confidentiality of settlement agreements maintained by the state’s Risk Management Division. The statute says that such records cannot be publicly disclosed until 180 days after a settlement has been finalized, although it leaves murky precisely when the clock starts ticking. Again the AG’s Office rejected Martinez’s argument and sided with Proctor. So, the administration folded its arms and simply then refused to turn over Kennedy’s invoices, leading Proctor to file suit. He was represented by the Albuquerque law firm Freedman Boyd Hollander, which has represented me in two disclosure lawsuits against the University of New Mexico Foundation and Lobo Sports Properties.
Tellingly, the details of Proctor’s settlement agreement with the governor are, for now, shrouded behind a non-disclosure clause which, because of N.M. Statute 15-7-9, won’t be lifted for another 180 or days — months after Martinez is out of office.
“That is incredibly unfortunate and, in my view, pretty cynical as well,” Proctor says. “I think there was an incentive [by Martinez] to (settle) because of the clock, certainly, and the [political] landscape shift we are seeing here in New Mexico, or will when the new administration takes office…I think it was also probably incentivized by the fact that they knew they had a loser.”
Proctor is one of the state’s most passionate transparency advocates, and has been honored for those efforts with the William S. Dixon First Amendment Freedom Award from the New Mexico Foundation for Open Government.
Previously, Proctor worked as an investigative reporter and producer for KRQE-TV and, before that, he spent a decade writing about the courts for the Albuquerque Journal. There, his aggressive coverage of excessive-force incidents at the Albuquerque Police Department helped prompt a Justice Department investigation of APD’s practices.
As part of our 90-minute conversation, Proctor and I delve into the lack of spine and ambition exhibited by the Albuquerque Journal’s masthead, particularly when it comes to confronting public officials and institutions in New Mexico. Fair warning: there is even more righteous indignation and casual swearing in this episode than usual.
Here are some key takeaways (click the relevant links to jump directly to that portion of the SoundCloud audio)…
Proctor on the final analysis of the Martinez administration’s commitment to transparency: “I think I’m disappointed, to some degree, and also unsurprised, which are two pretty common emotions for me when it comes to evaluating tenures of appointed officials in the state of New Mexico. I certainly remember her campaign against Diane Denish, when she ran the first time and won the governorship…And one of the things she frequently said on the campaign trail…’I pledge that mine will be the most transparent administration in New Mexico history.’…'”
“There was a level of cautious refreshment when I saw Gov. Martinez, then Candidate Martinez, put that issue front and center. I thought that was something I hadn’t seen a whole lot of in high office campaigns in the state of New Mexico…It couldn’t have been more diametrically opposed, in the final analysis, in terms of the Martinez administration’s commitment to transparency…”
“The sunshine portal, which…was supposed to be this terrific innovation in dumping a whole bunch of public records onto a big database on the governor’s website — that would save people the hassle of having to file public records request — has been an abject failure. I think it is an absolute disaster: it is untrustworthy; I don’t know a single journalist in the state who uses it as a single source to publish information about the Martinez administration. And, in the end, I think this became a really insular administration that really didn’t have a terrific interest in a public and transparent and open dialogue with the citizens of New Mexico, who may have had even the slightest disagreements, philosophically, with the way they tried to govern the state.
Proctor on how public record disclosures are systemically under-prioritized in New Mexico: “I think your listeners will be familiar with the job title of ‘Records Custodian.’ That is the person who you actually send the public records request to, who is responsible for processing it, and getting it to you in a timely fashion. Here in New Mexico, in the overwhelming majority of instances, the people who are designated as records custodians for these entities, it’s not their only job. They are doing numerous other jobs and the public records processing part is sort of a side dish…What ends up happening, as a result of that, is it becomes a headache — public records requests become a headache for these people. It’s just more work for these people, even the ones that genuinely believe in the high-minded ideals of open government and transparency…This is getting worse and worse. There hasn’t been a lot of commitment to spending money — I know that’s anathema to a lot of folks who think about the financial picture in a poor state like New Mexico — to really formalizing this.”
Proctor on why he has fought to obtain the records of what attorney Paul Kennedy billed Martinez’s administration for his defense work: “A number of these cases that he has been contract counsel for the Martinez administration have been these public records lawsuits. She has hired him and his firm to help her hide public records when she gets sued under the state’s sunshine laws. So, there is a little bit of irony in that and, for me, there are a whole host of types of cases in which he has represented her, including what I would consider some of the biggest scandals of the Martinez administration.”
“As an example of that, a case was brought in which employees of the Human Services Division were being ordered by their superiors to add assets to emergency food-stamp applications, so (applicants) couldn’t get the food stamps…Kennedy represented the Martinez administration in that case — a really, really, really kind of cynical government move. So, he has done this kind of wide range of what some people would consider dirty work for the administration. What I wanted to know was how much that has cost me and you, Dear Reader, for the various publications I write for…I would have loved to have been able to go to the sunshine portal, and see all of the contracts that he had gotten, and how much he money he actually got paid. But, of course, the sunshine portal is, for fans of the old David Bowie move ‘Labyrinth,’ the ‘Bog of Eternal Stench’ when it comes to actually being able to find things.”
Proctor on experiencing, journalistically, the insularity of New Mexican political power and corruption: I certainly share your experience and have had it many times, the regardless what dive I’m taking…what direction or what particular narrative thru-line I’m pursuing, yes, the same characters continue to pop up over and over and over again. And sometimes there is even some overlap. You think of one of the early scandals of the Martinez administration, the contract awarded to the Downs to run the racetrack and casino in the middle of the most impoverished area in Albuquerque, and crime-ridden area in Albuquerque…One of the guys who has been involved in that operation is a [former Gov. Bill] Richardson crony named Paul Blanchard…You see some of these characters float in and out regardless of what political party happens to be in power. But that is a long-standing New Mexico — I’m going to use the word ‘tradition’ — but really what it is a long-standing sort of practice of New Mexico fuckery…It’s a smaller number of people who are carving up for themselves a disproportionate slice of a small pie — it makes it worse.”
Proctor on the Albuquerque Journal’s telling reaction to my 2013 National Journal story about Martinez’s administration: “I sort of watched the internal machinations in response to that story. And essentially, the assignment that was handed down — rather then trying to build on the reporting you had done, or even match the reporting you had done about the way the Martinez [and Jay] McCleskey machine operated…the assignment was: let’s figure out who Libit’s sources were, and publish their names in the newspaper. That was what they did, in response to the story you wrote. Meanwhile, 60 percent, 70 percent of the reporters in the newsroom devoured that story…We were so glad to see this whole thing stitched together.”
Proctor on the absence of a firewall between the Journal’s editorial page and its news pages: One of my big complaints for the period of time I worked at the newspaper is that there wasn’t enough of a firewall, that sort of traditional separation of church and state, between the standards of the editorial staff and the news operation. There was too much bleed over. I don’t know if anyone has told you this story before, but I’m happy to repeat it publicly for your podcast listeners: it was Journal policy and, to the best of my knowledge remains Journal policy, that reporters were required to read editorials that were based on their stories, (before they) were going to be published in the newspaper. And the sort of fig leaf there was that we were going to be fact-checking these things…Really, what they wanted was sort of your tacit approval of what they had written, editorially, based on a news story you had written. That is a huge problem. That is a journalistic original sin: there must be that firewall.
Proctor on the conservatism and lack of ambition of the Journal’s masthead: “In particular, in the more modern media landscape, explanatory reporting and those big stitched-together things that help readers really understand the stories that they have been reading on the front pages Tuesday, Wednesday, Thursday and Friday — those are really important in this day in age, because there is so much media out there to consume. That is not the type of thing the Albuquerque Journal is interested in doing. I had a million ideas that were killed — either died on the spike after I had written them, or died the moment I pitched them as I pursued the APD story, for example. It is a very conservative newspaper in terms of its news judgment…”
“Generally speaking, they are far more interested in letting a mayor or governor come into the conference room in the newspaper — and I sat through these — where it’s a handful of editors of the newspaper, a couple of reporters at the newspaper, and name-them public official who wants to float a new policy position, or a new budget position…The editors ask all the questions in the room, and the reporter is then assigned to write a ‘news story’ about what these people come in and said, but the whole thing is embargoed.”
“So, I can remember instances where [Former Albuquerque] Mayor [Richard] Berry would come in and talk about what was going on with the police department or a new idea he had for the police department, or whatever it was, and it was embargoed. I wasn’t allowed to call anybody else and let them weigh in on what this new idea was. It was basically — I hate to say it this way — it was publishing press releases. I don’t really see that as the core mission of journalism. And again, the newspaper is, I think they operate, at least in terms of the masthead, a little scared and a little conservative, and I don’t mean conservative necessarily in the political context, they are just scared. I certainly have got my ideas about the origin story of all that if people want to go and research the [William] Marchiondo [libel] lawsuit, I think things changed after that. There was a time when the Journal was a very aggressive sort of muckraking newspaper…”
“Hell, they bought a racehorse one time and did an undercover series of stories to expose doping in New Mexico horse racing. That is just not the kind of thing you see the Albuquerque Journal do anymore and haven’t for quite some time. So, that’s sort of my thumbnail sketch of what I think is going on in terms of why we didn’t see that National Journal piece you wrote [appear] in the pages of the Albuquerque Journal. At that time, they had the horses, man: [Journal reporters] Colleen Heild and Thom Cole could have done that story.”
Proctor on the Journal’s long-time former editor Kent Walz: “He has since stepped back a bit and I think they are calling him senior editor these days. Occasionally, you will see [him byline] a Sunday front-page story that the Journal considers a profile…Kent is also a co-founder for the New Mexico Foundation for Open Government. Kent and (NMFOG) and the Journal for many, many years, back when there was some ambition and all of that, they were the push-back machine against the old, Democratic Party patron network that ran the state of New Mexico. Lots of corruption in there…people who went to prison — Manny Aragon, for example…”
“In those days, the newspaper was functioning as newspapers are supposed to, as the fourth estate, as the watchdog on power…During that period of time — and these are things I witnessed, personally — Kent made some friends on the other side of the political spectrum, who were also trying to push back on, admittedly, what in many cases, was a very corrupt system. When his friends began to gain power, that is when the newspaper sort of changed into more of a: what we’re going to do is help them spread the word of their agenda and the way they want to change things. That said, people often have this idea of the Journal that it is just a Republican boosting newspaper. That is not true…What is really at the root of that is that the masthead, and Kent in particular, became part of the power structure rather than remaining apart from it.”
Proctor on why he continues to root for the Albuquerque Journal, even now as a professional competitor: “As much of a vocal and public critic and sometimes pooh-pooher of the institution, I really do love that newspaper. It was my first home as a journalist. I made lasting relationships there; I learned things there. Because of the way the editorial structure was set up, I became a better reporter because my stories had to meet impossible bars, because of the ideological makeup of some of the people at the top. I became a much more thorough and hardened reporter as a result of having worked there. Moreover, I am one of those people who lives in Albuquerque, New Mexico by choice. I wasn’t born here. I’ve lived here for 17 years. I’ve chosen to make this place my home. I want it to do better on any number of the measuring sticks that we do so poorly on and I think a huge part of making that so would be for the Journal to take a little more of an adversarial or critical look at the way it presents the newspaper to the readers every day. I am a huge cheerleader, although I have my own prickly way of doing that, of the Albuquerque Journal. I want that to be a bad-ass newspaper. And come on, man: it’s New Mexico. There is not a more target-rich environment on planet earth to go and do the thing. And I see it happen sometimes — I see thoughtful, compassionate reporting in the paper, it does happen.”
Proctor on uncovering racial disparities in Albuquerque sting operations conducted by the Bureau Alcohol Tobacco Firearms — and improper sealing of public records in New Mexico’s federal court: “It’s really been a series of stories that I hope reached people who thought that the so-called ‘War on Drugs’ is over…In the course of doing that reporting, I’ve gotten to tell some of the most impactful and important and meaningful stories of my whole career that have resulted in much shorter prison terms, in some cases looming, outright dismissals of charges based on racial-racial-profiling claims…”
“A couple of the stories that sprung from reporting on the ATF series are some of the stories I am very most proud of…I was sort of able to uncover this really crazy practice of the way documents are sealed in federal court in New Mexico…”
“If something is going to be sealed, kept from the public, which cuts against the notion that the public should have the most possible access to the functions of its government, the way it is supposed to work is one of the parties, whether it be the prosecutor or defense lawyer, goes to the judge in writing…And then the judge decides whether that particular party has met the threshold to countervail the public interest in that particular case. I came to discover that the practice in New Mexico for a long time is that lawyers, not judges, decide what gets to be sealed…”
“The problem is that I, as a citizen, and particularly as a journalist, if I believe that a document has been improperly sealed…I don’t even know it exists, so I can’t go challenge this practice that went into sealing this particular document. I am just left in the dark, totally and completely up the proverbial creek, with nothing to paddle with but a crusty leaf from a Magnolia tree.”
Here are some additional reading materials and useful links…
- Jeff Proctor on Twitter
- The New Mexico Sunshine Portal
- Skeptic by Nature: Jeff Proctor, Criminal Justice Reporter — New Mexico News Port
- Officer Said His Job Is ‘Human Waste Disposal’ — Albuquerque Journal
- U.S. Department of Justice’s Investigation into Albuquerque Police Department
- FOG Will Honor Dixon Winners — Albuquerque Journal
- With govenror and her staff, transparency is a campaign slogan, not reality — New Mexico In Depth
- The Man Who Discovered Susana Martinez Could Also Be Her Downfall — National Journal (subscription required)
- Battling Over the Governor’s Political Advisor — Albuquerque Journal
- Writer: Source isn’t ex-aide — Albuquerque Journal
- Suit Revives Old Report Tying Apodaca To Crime — New York Times (re: Marchiondo libel suit against the Albuquerque Journal)
- Editor Kent Walz Retiring from the Albuquerque Journal after 35 years — KOAT
- State faces new open records suit over pay to guv’s favored attorney — The NM Political Report
- Reporter sues over access to public records — Albuquerque Journal
- The governor’s ‘pit bull’ — Santa Fe New Mexican
- Former Lobo hoops staffer indicted on felony embezzlement charges — Albuquerque Journal
- The Petty Politics of Loboland — NMFishbowl.com
- Stung in Albuquerque: ATF descends on New Mexico’s largest city with questionable results — New Mexico In Depth
- Secrecy practice in NM federal court goes deeper than documents, defense lawyers say — New Mexico In Depth
- A scrap over DWI coverage spurs accountability questions — Columbia Journalism Review
- Lawsuit: AG violated open records laws — The NM Political Report
Featured Image by Andreas Dress / Unsplash