By Daniel Libit
Once. Twice. Three times transparency.
As part of my ongoing effort to help the University of New Mexico with its long-striving and oft-asserted commitment to openness, I have now filed a third public records lawsuit against a UNM component unit or direct-support organization. The latest defendant is arguably the most egregious offender of the trio: the UNM Lobo Club, the athletic department’s booster organization.
You can read the civil complaint here, drafted by my attorney, Nicholas Hart, who has represented me in my other cases.
Like the UNM Foundation — the defendant in a records lawsuit I’ve initially won on summary judgement — the Lobo Club claims to be a legally distinct, 501(c)(3) non-profit organization, unconstrained by New Mexico’s Inspection of Public Records Act. Our lawsuit contends that this has long been an absurd contention, made even more absurd by recent developments.
The Foundation, meanwhile, which is appealing Judge Nancy Franchini’s May 24 ruling in my favor, recently filed a motion to stay her decision until the appellate court has had a chance to rule. In its Dec. 18 filing, the Foundation accused Franchini of “using unnecessarily and inappropriately broad language” when ordering it to comply with my previous public record requests.
In her decision, Franchini found that the UNM Foundation met all nine factors established in a 2012 decision by the New Mexico Court of Appeals, which “determine when a private entity quote ‘acts on behalf of a public agency’.”
Foundation attorneys now argue that, since Franchini’s ruling, the organization has been consumed by a “deluge of IPRA requests” and forced to spend more than $70,000 for “additional staff to process and respond to the requests.” (Those responses, incidentally, have all been denials.)
The Foundation is also named as a co-defendant in my Lobo Club suit, as are UNM’s Board of Regents, Lobo Club interim Executive Director Jalen Dominguez, Foundation paralegal Jen Jelson and UNM interim Public Records Custodian Christine Landavazo, all in their official capacities. The caption of the case indicates how intractably interwoven the university’s fundraising operation is, which happens to be at the heart of the complaint.
Since 2015, the Lobo Club has operated according to a Memorandum of Agreement with both the Foundation and the university. The MOA stipulates that the Lobo Club’s “sole purpose” is for “soliciting, managing, and distributing private gifts and donations given for the benefit of the University of New Mexico athletic programs, and, as the primary organization for developing and coordinating fundraising activities for University athletic programs.”
The university and Foundation employ all of the Lobo Club’s staffers, per the MOA, and the Lobo Club offices for free out of the UNM Athletics administration building. In addition, the university assumes the “cost of utilities, maintenance and repairs, property insurance, and any other physical facility support services for the Lobo Club.” And UNM provides the Lobo Club free “business, financial, legal, public relations, and consulting services.”
Indeed, when it comes to this arrangement, it’s impossible to know where the public institution ends and the supposedly private non-profit begins.
In October, NMFishbowl.com profiled UNM’s organizational human centipede and highlighted the current effort being undertaken at the behest of university administrators (i.e., public employees) to further synthesize the Lobo Club into the university while still claiming that the Lobo Club should be immune from public disclosure requirements. It’s a good gimmick, if you can get away with it.
This latest lawsuit grew out of my reporting efforts, during which time the Lobo Club denied most (although, not all) of the IPRA requests I submitted. In those requests, I sought the following materials:
- UNM Lobo Club Finance Committee and Executive Committee meeting minutes since January 2017
- A current list of UNM Lobo Club Champions Council members
- “Titan” system reports for the top-10 largest contributing donors to the Lobo Club, showing amounts pledged and current amounts paid.
- “All check and financial documents that (are) contained in the Lobo Club Board’s Finance Committee minutes packets”
- “Un-redacted Forever Lobo Society pledge agreements — or any other documents that codify posthumous pledges” for Rudy Chavez and Raleigh Gardenhire.
- “The receipt and any backup documentation for a $1,138.36 restaurant expense paid/reimbursed out of the Lobo Club US Bank Account (1050.00) on/around 3/13/2017.”
- “The receipts and any backup documentation for any additional ‘Cultivation & Stewardship’ expenses paid/reimbursed out of the Lobo Club US Bank Account (1050.00), in either March 2017 or March 2018.”
- “The receipts and any backup documentation for any reimbursements to UNM Athletic Director Eddie Nunez in 2018.”
- “All reimbursements made by the Lobo Club to UNM Athletic Director Eddie Nunez in 2017.”
- “Copies of any/all invoices or checks re: payments to Fidel Perner & Michnovicz, or any of the firm’s principals, for services rendered to the Lobo Club in 2018.”
- “All emails between Jalen Dominguez and Bart Kinney since May 1, 2018 …exclud(ing) emails where there are more than one recipient.”
- “The most current accounts receivable documents for LSF and The Pit Suites.”
Eventually, the Lobo Club consented to provide limited copies of the Finance and Executive committee minutes, with numerous redactions and omissions. When I queried Dominguez about the reasons for the redactions, he said they were either for “attorney client privileged information” or “confidential donor information.” The Lobo Club denied all my other requests, hurling a kitchen sink of excuses that appealed to everything from trade secret protections to privacy claims under the U.S. Constitution.
In an Oct. 16 email, Lobo Club Board President Bart Kinney informed his fellow directors of my requests and how the Lobo Club had decided to largely dismiss them. “As a non profit 501(c)3, we believe that such information is private between you and the UNM Lobo Club,” Kinney wrote. “The Lobo Club staff and the board works very hard to support our student-athletes at a high level and with great integrity.”
After I subsequently threatened litigation, the Lobo Club enlisted the outside help of attorney Marshall J. Ray, who previously worked as a deputy cabinet secretary and general counsel in Gov. Susana Martinez’s administration. In a Nov. 21 response to my attorney, Ray made a piteous offering on behalf of the Lobo Club: namely, the organization’s 990 tax return, “which contains extensive financial information regarding the Lobo Club,” and which was already public and easily findable online.
So, once more unto the breach, dear friends, we confront a public institution’s private information storehouse, where records relating to millions of dollars of university business are kept. Presumably, the Lobo Club will harken to the central argument made by the Foundation (after all, they’re the same entity, in the end) that this secrecy is essential to soliciting donors, and therefore essential to the financial health of the university.
In its latest motion for stay, the Foundation leans heavily on an affidavit from UNM Law School Dean Sergio Pareja, who, asserting his expertise as a one-time estate attorney for “high net worth individuals in Indiana and Colorado,” insists that the university would be irreparably damaged if the school couldn’t keep its donor activities in the dark. Pareja cited a $2.5 million gift to the law school, given by an anonymous donor in late 2017, for the purpose of funding a scholarship endowment. The whole ordeal was run through the Foundation.
According to Pareja, the donor agreed only to gift the money if assured of his or her anonymity. Now, Pareja says, the university and the Foundation would be “at risk of litigation by the donor,” if they would ever be required to reveal his or her identity. He further stipulates that, “based on my experience with this recent donor…(and) as as an estate planning lawyer for other high wealth individuals,” the university would stand to lose “a substantial source of funding from certain donors,” if it were forced to comply with IPRA requests.
Why Pareja would have made such assurances of anonymity to a prospective donor, at a time when the UNM Foundation was up shit creek in IPRA litigation, is beyond me. But I’m not sure he’s someone whose word I’d be inclined to take on faith, all due respect.
Pareja insists that the donor, in this instance, received no tangible benefit from the university, and I suppose we’ll just have to take his word for it. Even if all this is true, UNM is attempting to create a reality where the school could take all manner of controversial or even objectionable alms, with all sorts of problematic obligations or preconditions, and the public would be none the wiser to any of it.
Also, let’s remember that many of the documents I’ve requested have nothing to do with donors, nor would they implicate their identities, so this notion that the Foundation is simply trying to uphold “donor confidentiality” is already bull(redacted).
As for the specific contention about donors’ general aversion to notoriety: the various buildings around UNM’s campus, bearing the names of their benefactors, immediately calls this into question. According to the Foundation’s latest annual report, just two out of the 108 new members of the Tom L. Popejoy Society (consisting of individuals who have given lifetime contributions of over $50,000 to UNM) requested anonymity. Two.
An amici curiae brief filed in support of my Foundation lawsuit, by the Brechner Center for Freedom of Information and New Mexico Foundation for Open Government, noted that since California passed a law explicitly requiring university foundations to disclose their records, foundations across that state have reported “record donations, so it manifestly does not handicap these institutions to make their operations transparent.”
(Pareja’s full affidavit is really worth reading, as an example of shameless casuistry. He concludes his statement by trying to smuggle in a completely inconsequent religious freedom argument in support of the Foundation’s secrecy. Good lord, indeed.)
Even if you’re buying what Pareja is selling, UNM’s donor relations should never wag the dog of the public’s right to know. The Lobo Club and UNM Foundation’s annual private hauls are relative drops in the bucket of a $3 billion-a-year public research university, whose biggest donor has been, and will forever be, the taxpaying citizenry.
A point I’ve already belabored to death deserves belaboring once more: transparency is supposed to be a bitch. Accountability is inherently and necessarily inconvenient. That’s a good thing: it’s an antidote to the baser instincts of those entrusted with public money. And yet, in each culminating instance, one can and often does encounter an expediency argument, however disingenuous, in opposition to openness. This just happens to be a particularly lame one.
We’ve seen, by now, that UNM (and, especially, Lobo) fundraising not infrequently exists with strings attached and with individuals, public and private, receiving personal benefits. And yet, UNM’s contention is that the public be made to assume all is well and good — or at least not mind if it isn’t. This isn’t just a recipe for disaster: it’s an entire fucking cookbook.
Albuquerque businessman Steve Chavez essentially launched his fledging Wise Pies Pizza brand off the ludicrously one-sided “gift” agreement he signed with the UNM Foundation for the naming rights to The Pit. (A WisePies spokesman later publicly criticized the Foundation for the secrecy of the deal, saying that it had come at Chavez’s expense.) The infamous Scotland scandal began with former Athletic Director Paul Krebs arranging a golfing junket for private donors through the Lobo Club. Somehow, UNM ended up paying almost $64,000 of public monies and Krebs became an “anonymous donor” under criminal investigation.
Here’s how deranged “donor confidentiality” has gotten at UNM: the Foundation’s General Counsel Pat Allen, who is co-defending the organization in my IPRA suit, was called out recently by the New Mexico Attorney General for providing contradictory and misleading statements about Krebs’ secret $25,000 donation made to cover misappropriated Scotland monies that violated the state’s anti-donation clause.
So, does Pareja want to personally indemnify the public against all future impropriety or incompetence that may transpire in this closet full of skeletons? Would a current UNM or UNM Foundation employee like to volunteer themselves as a future sacrificial lamb, if human failure once more contravenes the public interest? Anybody?
That’s what I thought.
And so, we’re back to the nub of the Lobo Club case, which is the core of the American tradition of public accountability: citizens being empowered to verify how public institutions are receiving and spending money.
UNM says, “Trust us.”
IPRA says, “See for yourself.”