Gov. Susana Martinez’ administration continues to insist on keeping secret how much taxpayer money has flowed to a well-connected Albuquerque attorney who frequently represents the governor in court. And that’s despite a determination from the state attorney general that withholding the information breaks the law.
SFR has sought to pry attorney Paul Kennedy's billing records out of the state since late 2012. Officials sent journalists working for this newspaper on a wild goose chase to various government departments, claimed records didn't exist or can't be released because of the attorney-client privilege and, most recently, cited a state law most commonly used to protect confidential settlement amounts.
Taken together, the state's incomplete, untimely responses to SFR's records requests and the withholding of Kennedy's payment amounts violated the New Mexico Inspection of Public Records Act (IPRA). That's according to lawyers in the office of Attorney General Hector Balderas, who is responsible for enforcing IPRA and the state's other transparency laws.
Martinez' General Services Department (GSD) "violated the IPRA by failing to properly respond to IPRA requests and by refusing to provide responsive records which are subject to inspection," Deputy Attorney General Joseph Dworak wrote to Alexis Johnson, general counsel for GSD, in a letter dated Dec. 15.
Dworak's letter came five months after SFR filed a complaint with the attorney general over the administration's most recent refusal to disclose how much Kennedy has been paid. It continued: GSD "should have provided, at minimum, copies of the billing records requested with redaction of specific details of the attorney services which constitute attorney-client privilege information."
Kennedy is close to the governor and was once Martinez' choice for a seat on the New Mexico Supreme Court. She has hired him to push back on allegations that state officials doctored emergency food assistance applications, public records lawsuits and other controversial matters in court, although when SFR asked for information about all the cases he is involved in on the state's behalf, officials did not identify all of them.
One of those public records cases was filed in 2013 by this newspaper. Kennedy is Martinez' outside lawyer in that case and has argued strongly for her right to keep records under wraps.
Responding to an email from SFR this week, Kennedy said he was "not authorized to comment at this time."
It is not uncommon for governors, mayors and other top elected officials to hire outside attorneys, even though they employ staff attorneys who draw government salaries. Complex, legally difficult cases can stretch government legal staffs. That often leads to contract work for private attorneys representing officials.
Citizens have likely shelled out hundreds of thousands of dollars for Kennedy's legal work during the past several years, according to the state's transparency website and conversations with former Martinez administration officials. But how many hours he and other attorneys at his firm have worked, what they've done and exactly how much they've been paid is anyone's guess.
That's because GSD has not turned over any records indicating how much state money has gone to Kennedy and his firm. Johnson, the GSD attorney, promised in a letter on Jan. 13 to turn over records from two cases in which the governor has settled lawsuits for alleged IPRA violations, but not until he has blacked out information he deems protected by the attorney-client privilege.
And he refuses to release any of Kennedy's billing records related to SFR's lawsuit, scheduled for trial in late March. Johnson claims state law requires him to withhold any documents associated with "open" cases until six months after they are closed.
However, GSD already has provided contracts spelling out Kennedy's scope of work and payment for the two closed IPRA cases and for this newspaper's case. Those documents show Kennedy has been awarded $850,000 in sole-source contracts to represent the governor at an hourly rate of $250 for his work and $150 an hour for less experienced attorneys at his firm.
The state's Sunshine Portal database, which Martinez touts as a transparency tool, does not match the records GSD has turned over to SFR. It shows contracts in at least four other cases for Kennedy, including the food assistance fraud case. Kennedy, the database shows, was awarded $716,633 in contracts between September 2013 and June 2016—far less than the amount shown just in the three contracts the state has turned over—and that he was paid $413,528 during that time.
SFR cannot independently verify those figures.
The city of Santa Fe has a different take on letting the public see how much money is being spent on outside attorneys.
Bernadette Romero, the city's records custodian, said she releases bills for contract attorneys in response to IPRA requests—but only after redacting information that would, for example, reveal legal strategies. No matter what stage of litigation a case is in, Santa Fe officials believe the amounts of money paid, the dates of service and the hours worked are public record.
"When it comes to taxpayer dollars, the people have a right to know what it's being spent on," Romero said. "We just go ahead and release the amounts when people ask."
Deputy AG Dworak, in his letter to Johnson, pointed out that whether the government's outside legal bills are public records has never been litigated under IPRA. But Dworak cited a New Mexico case in which the Northern Rio Arriba Electric Cooperative was forced to show its outside legal bills to shareholders. He also cited cases in state and federal courts around the country in which courts forced government entities to release records that showed the amounts of money paid for outside legal services—although not detailed narratives that could give away officials' legal strategies.
Dworak concluded his legal analysis this way: "We believe that this persuasive authority would lead a New Mexico court to find [GSD's] blanket invocation of the exception to hold records improper."