New Mexico Public Education Department employees who answer legislative requests for information instead of referring them to management will be subject to "immediate disciplinary action," a department manager wrote to employees in a March 21 email.
The email —leaked to SFR this week—is raising alarms among lawmakers and transparency advocates as it relates to a controversial new policy in which the governor's office has directed executive agencies to send all legislative requests for information through Gov. Susana Martinez' Chief of Staff Keith Gardner.
Charles Trujillo, a manager in the licensure bureau, wrote to employees to "refer all inquiries to me and I will then refer the information to the appropriate folks."
"If you take it upon yourself to respond to these inquiries," he wrote, "you will be subject to immediate disciplinary action."
"I guess in public schools you'd call that bullying," Sen. John Arthur Smith, D-Deming, vice-chairman of the powerful Legislative Finance Committee, says after being read the email. Smith says directing legislative information requests through Gardner might lead to executive-level whistleblowers who feel they are being muzzled by the policy, adding, "hopefully with time the administration will succumb to some common sense" and reverse course on the directive.
Critics say the move will choke off the channels for information that executive agencies are required by law to provide to the legislative panels—which oversee those agencies. PED spokesman Larry Behrens did not directly respond to questions about the emails obtained by SFR. "We cannot comment on personnel matters," he writes on April 2.
The New Mexico Foundation for Open Government recently sent the governor's office a letter asking officials to clarify whether Gardner is now the chief records custodian for the state. (Pamela Cason is listed as the current records custodian for the governor's office). "FOG is concerned that the free flow of information between the executive and legislative branches is being restricted," FOG Executive Director Susan Boe writes to SFR. "We hope that the governor's office will ensure that this is not the case."
The emails obtained by SFR show PED planned on funneling legislative requests up management chains and eventually to Gardner—whose wife Stephanie PED hired as the coordinator for the National Assessment of Educational Progress in 2011. Any employees who defy the directive will be punished.
"As per our meeting this morning," reads Trujillo's message, "any legislative request and/or inquiry pertaining to PED related information is NOT to be answered or discussed by you."
After being read the email, Rep. Rick Miera, D-Albuquerque, Vice Chairman of the Legislative Education Study Committee, tells SFR that he feels bad for PED employees who face punishment for "following the law" by providing the Legislature direct access to the information it needs.
"This executive administration is showing a disregard for the public needs of New Mexico by curtailing information," he says, "then punishing people who are doing the appropriate and right thing."
New Mexico's Legislature has two standing committees—the Legislative Finance Committee and the Legislative Education Study Committee—that gather data from executive agencies like PED that helps them make objective policy recommendations to lawmakers so the elected officials can craft informed bills and budgets during legislative sessions. The committees are comprised of lawmakers from both parties as well as expert staffers. They serve as critical oversight mechanisms whose findings have publicly detailed misspending and mismanagement within state agencies as well as highlighted operational successes within the executive branch.
"The taxpayer resents having to pay for government that's not efficient," says Smith. "But if they are paying for something, those agencies have to be accountable."
Emails show PED won't provide the LFC or LESC with requested information until Gardner approves the requests.
PED Deputy Secretary of Finance and Operations Paul Aguilar wrote to several PED employees on March 21 advising them how to respond to requests for documents. He recommended the following language: "We are in receipt of your request for information. In compliance with a directive from Governor Martinez, all requests for information must go to the Governor's Chief of Staff with a copy of NMPED Cabinet Director, Michael Heitz. PED will not respond until the Governor's Chief of Staff has approved the request."
The governor's office did not immediately respond to an April 2 request for comment. A gubernatorial spokesperson told the Associated Press that the governor's office will continue providing the Legislature requested information "consistent with state law," adding: "The governor is responsible for numerous agencies in the executive branch, so it is important to address those requests across all agencies to ensure that state government is functioning collectively, in a cohesive manner and not compartmentalized."
Sen. Craig Brandt, R-Sandoval, an LESC member, says he thinks Martinez' new policy could in part stem from tension between the two branches of government following what he called Legislative "interrogations" of cabinet officials last year—along with the amount of information the Legislature requested.
"In some ways I can understand with what happened during the last interim, there was so many requests," Brandt says. "But at the same time, you know, as legislators, we need to get information so we can make the best decisions. So I guess I'm kind of in the middle on it."
Spokesman Behrens writes the PED "spent almost 2,500 work hours answering 704 requests from the legislature in 2013 alone." If an executive agency tells the LFC a request is too burdensome, the committee's director David Abbey says he tells officials to "call me up and we’ll negotiate the scope of the work."
State law says that "each agency or institution of the state" shall "furnish and make available to the LFC such documents material or information as may be requested by the members of the committee or its director or staff which are not made confidential by law." State law allows the LFC to subpoena executive agencies if they refuse to provide the LFC information. Abbey says hasn't happened in his 17 years as director.
Without timely access to data from executive agencies, officials say those legislative panels are unable to provide informed reports to the public. Rep. Miera says the LESC panel will consider issuing subpoenas to the executive agencies if it has trouble obtaining information. "I don't answer to Keith Gardner," he says. "...That's not the way the three equal—underlined and capitalized: equal—branches of government should function."
"One man," Miera adds, "can’t be the repository for all information—not in a democratic form of government."