More than a year after not getting the documents she requested from Expo New Mexico and the NM Racing Commission, State Fair Commissioner Charlotte Rode has filed a lawsuit against both agencies.
The lawsuit concerns the state's inability to provide Rode with documents over what led to the Downs Deal—Expo's controversial awarding of a lucrative 25-year racino lease to the Downs at Albuquerque (Expo runs the state fair). In September, 2011, before the commission was scheduled to vote on approving a new racino lease, Rode requested a copy of both responses to Expo's request for proposals to build a new casino and oversee the racetrack. In November, 2011, she asked for "all documents related to the response to RFP by both parties."
"I still have never seen the responses to RFP," Rode tells SFR. "I filed the IPRAs a long time ago and never received them."
The racino lease had two bidders: the Downs and Laguna Development Corporation. The Downs had been in charge of the racino, widely recognized as a dump, for the previous two decades. In 2011, Rode and others were concerned that the state was fast-tracking a new deal for the Downs' owners, all of whom together had contributed campaign cash over the years to former Gov. Bill Richardson, former Lt. Gov. Diane Denish and Gov. Susana Martinez.
Rode, a vocal opponent of the Downs deal, says she wanted to see all the RFP-related documents for herself before voting on the lease in November 2011. The lawsuit accuses both Expo and the Racing Commission of violating the Inspections of Public Records act by not providing the documents to Rode and failing to cite exemptions in state law that would allow them to withhold the documents. It asks for the documents to be made public and damages under IPRA.
"I'm just puzzled why they knowingly wouldn't give her the responses to RFP," Nicholas Koluncich, the attorney representing Rode, tells SFR. "I'm baffled."
Expo NM spokesman Michael Henningsen, however, writes to SFR that anything Rode requested under IPRA, "if it in fact existed, has been made available to her under the exact guidelines provided in the Act in every case."
"Her attorney should be baffled that he allowed himself to be duped into filing such a frivolous lawsuit that obviously has more to do with grandstanding than any substantive claim," Henningsen writes.
Last summer, Martinez' then-spokesman Scott Darnell wrote to SFR that Rode did indeed get the chance to see the RFP materials before the commission's vote.
"Expo management made the decision that a non-disclosure must be signed and that the documents would remain within Expo’s offices," Darnell wrote last August. "Commissioner Rode chose not to review this material before casting her vote."
Rode, on the other hand, maintains that she wasn't given the opportunity to review the documents until Nov. 9, the original day scheduled for the vote (the commission approved the lease on Nov. 21).
An email exchange on Nov. 17 provided in the lawsuit shows Expo General Manager Dan Mourning writing to Rode: "According to the specific process we have had in place inviting Commissioners to come in to the office to view all documents they are entitled to view pertaining to the proposed lease, the invitation still stands."
Koluncich emphasizes the fact that Mourning used the word "entitled" in his email to Rode.
"Watch out for lawyer doublespeak," he says.
"The complaint is relatively straightforward," he continues. "Charlotte Rode made requests for certain documents. She requested them under IPRA as a private citizen. Those documents weren't honored."
Henningsen adds that the state fair hasn't yet been served with the lawsuit, which he writes "speaks volumes as to the true intent." (Koluncich says that's the next step).
"With the Legislature convened, this is simply a convenient way to bring the Fair into the limelight," he writes, "and give it a black eye for offenses it absolutely has not committed. It's unprecedented and unbelievable, really."
Read the lawsuit here: