Last week, I sent the following question to Pat Rogers, who served as an attorney for the Downs at Albuquerque during its bid for a new lease last year:
"Pat, This is Joey Peters with the Santa Fe Reporter. I am working on a story about the Downs lease. Can you tell me why the Downs submitted a letter to the Board of Finance for approval of the lease two weeks before the commission voted for it? Was anyone on the commission aware of this?"
I was referring to a letter SFR had obtained that Expo New Mexico General Manager Dan Mourning wrote dated Oct. 25, 2011, to the state Board of Finance. The State Fair Commission, which needed to approve the lease before it could go to the Board of Finance, actually didn't approve the lease until Nov. 21, nearly a month after the date on the letter.
In the letter, the State Fair Commission requests the Board of Finance to approve the Downs lease.
The commission delayed the vote at its Nov. 9 meeting and soon passed the lease on Nov. 21. The Board of Finance, which needed the commission's approval, approved the lease the following month.
Rogers responded that he didn't understand my question, so I elaborated:
"What I have is a letter written by Dan Mourning dated Oct. 25, 2011 to Stephanie Clarke at the Board of Finance that reads: 'By this letter, the State Fair Commission requests approval by the State Board of Finance of the lease of real property by the State Fair Commission, as Lessor, to the Downs at Albuquerque, Inc., as lesee[sic]...' It goes on to say that the lease agreement 'is scheduled for approval by the State Fair Commission on November 8, 2011.'
"The commission delayed the vote on Nov. 9 then approved the lease on Nov. 21. An email I have says that Peter Franklin hand-delivered that BOF letter. So one question I have is that even though the BOF letter stated that the lease was scheduled for approval by the commission, how could the commission request the BOF to approve the lease before it voted on it itself?"
Through a spokesman, Mourning says he sent the letter "with the sincere hope that [the commission] would vote to adopt the new lease." Gov. Susana Martinez spokesman Scott Darnell adds that "it doesn't seem unreasonable to look ahead to the next step in a multi-step process."
The full Rogers' statement is below:
I asked if you had located a final signed letter, as the document you send is not signed and looks like a draft. Are you sure the possible discrepancy in the subject line, as compared to the body of the letter, was not fixed? Moreover, is that what you are talking about? Are you suggesting the heading on the first page of a draft letter is in the past tense and something that is said in the body of the draft letter speaks of a future event?
I simply do not understand your statement about “those of us who think it may be illegal or improper”.[Editor's note: SFR's question to Rogers actually read: "For those who think this was illegal or improper, your insights into procurement code and best practices—and how this deal followed those—would help a lot."]
I asked for any citation to a statute or rule, case or explanation. Are you speaking of a sort of Strunk and White offense?
You understand it would be tantamount to legal malpractice not to engage the BOF staff at the earliest possible point? The BOF regularly considers and evaluates proposals in this manner. I am assuming the BOF was particularly interested in a thorough and prompt review due to the impending expiration of the lease. The BOF questions, many before the final state fair vote were voluminous and detailed---but also common and expected. Recall that absent a new lease, the lease payments to the state would have ceased by Jan 2012.
Not only was engaging the BOF staff as early as possible just basic, competent lawyering, frankly it never crossed my mind that the proposed lease would not be received with great appreciation from any State Fair Commissioner who reviewed the current lease, was familiar with the Richardson sole source deal and understood the significant additional consideration proposed by the Downs. Rather than the sole source secret lease proposed during the Richardson administration, the Downs proposal was much more valuable to the taxpayers and advantageous to state fair. Moreover, the lease was approved by three different entities, the evaluation team, the State Fair Commission and the State Board of Finance.
A comparison with the other proposal, the expiring lease and the Richardson sole source contract makes it crystal clear the state had a greatly improved deal, by millions and millions of dollars. It moved many, many construction and maintenance expenses, obligations and risks from the state fair/taxpayer to the lessee. The entire state is in the same recession that burdens our entire country. The NM State Fair needs a reliable, significant source of large payments. After 10 years of studies about what to do and the most open process ever for the lease of state property, the taxpayers, the neighbors, the new and old employees, the construction industry and people who enjoy the state fair will turn out the winners.
Please don't take portions of my answer and substitute different questions. I still don't understand your question. If history is any guide, I am also guessing, to the extent any article suggests that something was not proper, it will be anonymous and will not be anyone familiar with the law, the procurement code, or the Board of Finance procedures.
Read the letter here: