Here's how New Mexico's Inspection of Public Records Act works: Anyone can ask to inspect a public record. If it exists—and it's not impossible to unearth—the public agency holding the record must make it available for inspection.
In other words, it's pretty straightforward.
But the New Mexico Public Education Department seems confused about whether a particular record—an internal investigation into possible ethics violations—is public.
SFR first requested a copy of the investigation last year; PED withheld it, saying it was "replete with opinions about the allegations of wrongdoing" by two employees who could be identified if PED released the record. In April, Foundation for Open Government Executive Director Gwyneth Doland said that excuse was unacceptable.
"A reasonable person would not expect an internal investigation to be a matter of opinion," Doland said at the time.
But PED has since reversed course. Last month, the department provided a heavily redacted copy of the investigation—but with the caveat that it is "incompetent," "misguided" and "factually erroneous." This raises two questions: Why hire a contractor to conduct an incompetent investigation? And why withhold it in the first place?
The investigation concerns a policy requiring PED to flag the names of department officials under investigation for ethical violations. "Open ethical case" designations in the PED's licensing database are meant to alert school districts when making hiring decisions.
Former Deputy Secretary for Learning and Accountability Sheila Hyde and Education Administrator Julia Rosa Emslie play a key role in the investigation report. (SFR reported on discrepancies in each of their education licenses last fall [news, Oct. 29, 2011: "License Deregulation"].) A grievance against Hyde and Emslie for allegedly dropping many PED officials' "open ethical case" designations in the licensure database prompted the investigation.
"[Information technology] staff indicated that the 'Ethics Case' displayed in red on each [licensee database] file had been recently removed on 'most' files," the investigation report states. "It was reported that this change was ordered by Deputy Secretary Sheila Hyde and that Ms. Julia Rosa Emslie, Chief of the Quality Assurance Bureau, was assigned by the Deputy Secretary to ensure that the changes took place."
The report goes on to recommend a follow-up investigation by PED's Office of Inspector General.
PED Records Custodian Beverly Friedman, with the help of PED General Counsel Willie Brown and Administrative Assistant Gail Callahan, dismisses the investigation as "incompetent."
"The person who drafted the report did not attribute the names of a single witness she relied on in coming to her misguided and factually erroneous conclusions," Friedman writes in a letter to SFR. "She failed to even interview or attempt to interview the very objects of her 'investigation,' the result of which created a [five]-page incoherent and biased attack on two exemplary employees."
Spokesman Larry Behrens writes in an email that PED contracted with Denika Romero to conduct the investigation. He adds that Hyde and Emslie didn't modify the licensure database; rather, PED made a decision to stop flagging teachers and administrators with open ethics investigations, instead reserving that designation for when PED actually takes action on a license.
Flagging open investigations, Behrens writes, "created a great liability for the state. Many of these individuals were being denied employment even though their case(s) were still being investigated."
But Anders Engstrom, a financial adviser at the Education Retirement Board who last year requested records of Hyde's and Emslie's educator licenses, questions the PED's decision to withhold a report that it dismisses as nonsense.
"Shouldn't the [New Mexico bar] and the District Attorney's office be interested in how Willie Brown advises the PED [on] how to block public access to scrutinize PED ethics, accountability and transparency?" Engstrom asks.
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