To Serve the Governed, Not the Governors.
Each December, SFR publishes a list of the year's top 10 stories. But this year, one story overshadowed them all: closed government.
At SFR, we pride ourselves on our commitment to old-fashioned investigative reporting. We consider it our duty to find out what our government—of, by and for the people—is really doing, and then to inform our readers so they can make educated choices.
Although Gov. Susana Martinez promised to bring a new level of transparency to government, a year's worth of reporting has revealed that, in many ways, the opposite has happened. Specifically, a massive trove of private emails—many sent by public officials and concerning public business—offers unprecedented insight into the inner workings of the Martinez administration. The emails show that access is often limited to a privileged few; that many decisions are made behind closed doors; and that public officials have at times done more to avoid transparency than to foster it. To be sure, Martinez has made strides in some areas, such as her decision to post the salaries of all state employees online. After the private email network was exposed, she also ordered state employees to stop conducting public business on private email accounts.
Still, the Martinez administration has refused to comment on the content of the emails, maintaining they're stolen. SFR—a small paper with a news staff of three—has been threatened with litigation over our decision to publish them.
More than 40 years ago, the US government sought to keep the New York Times and Washington Post from publishing the Pentagon Papers—secret documents containing details about the Vietnam War—in part because, RAND Corp. leaker Daniel Ellsberg later said, the contents would have been "embarrassing" to the Nixon administration.
But the US Supreme Court roundly rejected that effort, issuing some of the strongest language to date in defense of press freedom.
"In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy," wrote Justice Hugo Black. "The press was to serve the governed, not the governors…The press was protected so that it could bare the secrets of government and inform the people."
"For, without an informed and free press," added Justice Potter Stewart in his concurrence, "there cannot be an enlightened people."
"For centuries, the public has relied on the newspapers to deliver information that it would not otherwise be able to access," begins a nine-page speech drafted for Gov. Susana Martinez. "And our founding fathers who recognized how critical…and precious…was the people's right to know…they were so determined to preserve these freedoms that they safeguarded them in the Constitution."
Indeed, "the press" has its own explicit freedom, listed next to freedom of speech, in the First Amendment. Martinez' speech continues with a stirring invocation of one of those founding fathers: "As Thomas Jefferson noted, 'Our liberty depends on the freedom of the press, and that cannot be limited without being lost.'"
Martinez delivered the speech at the annual meeting of the New Mexico Press Association on Oct. 29, 2011—nearly a year into her term as New Mexico's Republican governor. The talking points provide space for Martinez to pause, or her audience to applaud. They mention the "unique and interdependent relationship" between the press and elected officials.
"[S]ome politicians have consumed themselves with how they are portrayed in the media…judging their success by the flattery of headlines, rather than the substance of their service," the speech continues. "Others have swung to the opposite side of the pendulum…hiding from those they were elected to serve…acting in secret…avoiding transparency and accountability for their actions."
The irony is poignant.
At 9:02 pm on Oct. 28—the night before Martinez was scheduled to speak—one of her staffers, Janel Causey, emailed the speech to Martinez' secretary, Kim Ronquillo. Both used their private email accounts—a tactic sometimes used to keep correspondence from being uncovered via public-records requests. The subject line: "talkers," with an attachment containing the talking points for the NMPA meeting.
"Kim, would you mind plugging these into Gov's calendar?? Thanks, J," the email reads.
SFR obtained that email, along with hundreds of others, by filing a public-records request with New Mexico Attorney General Gary King's office. Together, the emails show a vast network of influence and policymaking—all conducted over private email.
Martinez campaigned on a platform of openness and transparency—and, as her speech shows, has continued to pay it lip service. Yet the emails demonstrate that, through the use of private email and other tactics, her administration has often done more to discourage transparency than uphold it.
Two weeks before Martinez gave that speech, Pat Rogers, an Albuquerque lawyer, lobbyist and Republican National Committeeman, sent an email to Martinez' chief of staff, Keith Gardner. Rogers wanted Gardner to move a meeting with executives from Scientific Games International, Inc.—a Georgia-based lottery and gaming company—to Santa Fe's Inn and Spa at Loretto.
"It's more private," Rogers noted in the email, which he sent to Gardner's Gmail and susana2010.com email accounts.
"That will be great," Gardner replied from his Gmail account.
That exchange may seem harmless to the naked eye—"Use of personal e-mail addresses is a universal practice," Rogers later said in a statement—but it had serious implications. The email was a clear example of two men conducting state business. (SGI has a contract with the New Mexico Gaming Control Board to monitor nontribal gaming machines.) The fact that the email was sent from one private account to another suggests that someone wanted to hide it from public record.
The Inspection of Public Records Act, New Mexico's sunshine law, allows citizens to access government information—including email correspondence between public officials about official state business. It's a key tool that journalists use to inform citizens.
By June, several exchanges like these were leaked to the media, painting the picture of a private email network within the governor's office.
"It was just obnoxious," says Janice Arnold-Jones, a Republican former state representative who ran unsuccessfully for Congress earlier this year. "If you have taken the oath of office, anytime you conduct state business and it would not be covered by the open records law—why would you behave that way? I thought it was terrible."
Facing a public outcry, Martinez quickly directed all state employees not to conduct state business over private email.
But for Rogers, the damage had already been done. The leaked emails showed that he had unprecedented access to high-ranking government officials, and that he used it to recommend personnel changes, set up meetings for his lobbying clients and sometimes share tasteless jokes. And despite his membership on the board of the New Mexico Foundation for Open Government, a pro-transparency nonprofit, Rogers himself routinely sent emails concerning state business to the private email accounts of top Martinez staffers [news, July 17: "A Higher Power"].
On Nov. 30, in response to a public records request, the AG's office provided SFR with hundreds of pages of emails sent to and from Martinez' associates—including lobbyists like Rogers, donors, public officials and everyday citizens. The emails illustrate official state policy being discussed by top officials on private email accounts much more widely than previously revealed.
In the emails, public officials mull the qualifications of candidates for state government posts. They discuss proclamations and problems with locks in the state prison. They discuss important court cases, one involving "hush-hush" discussions between environmental groups and the state's largest utility, the Public Service Company of New Mexico (PNM), about a regional haze appeal. They consider transferring a state-owned aircraft from the General Services Department to the Department of Public Safety. All of it occurs on private email.
Nearly every side of this story has a political angle. SFR first obtained some of the emails from Michael Corwin, a private investigator and former opposition researcher for Democratic Gov. Bill Richardson. Corwin, one of Martinez' most vocal critics, runs Independent Source PAC, a liberal super PAC that can raise and spend unlimited amounts of money. He later gave the emails to King's office to investigate; SFR requested all correspondence between King and Corwin in order to obtain them.
King—a Democrat who has already raised more than $160,000 to challenge Martinez for the governorship in 2014—released the emails to SFR without redacting anything, even purchases linked to Martinez' account of Nickelback, Lifehouse and Kenny Chesney songs; Spanx undergarments; and the popular book 50 Shades of Grey. His office didn't even withhold a Martinez staffer's Wells Fargo checking account statements showing an overdrafted savings account. One email shows a state public information officer attempting to set up a Martinez official on a date.
The Martinez administration has declined to comment on the content of the emails, claiming the accounts were compromised, the emails stolen and that the entire issue is the subject of an ongoing FBI investigation.
"There is no justification for Gary King distributing stolen personal emails in the midst of an ongoing FBI investigation into their theft," Jay McCleskey, the governor's political advisor, writes in an email to SFR.
McCleskey, who is listed as a recipient on many of the emails, is not a state employee. He runs the governor's political action committee, Susana PAC; her campaign; the super PAC Reform New Mexico Now; and McCleskey Media Strategies, a consulting company that has received payments from other campaigns [news, Nov. 17: "Too Close?"].
US Attorney Kenneth Gonzales, whose office says it cannot comment on an ongoing investigation, may also have a political interest here: Recently nominated for a US District Court judgeship, Gonzales will need to be confirmed by US Senate Republicans, who could evaluate his investigation into the alleged theft of a Republican governor's emails. But his office hasn't pressed any charges yet, and Corwin maintains that he obtained the emails from an anonymous source who bought the susana2010.com domain in a legal auction.
SFR's public-records request also yielded an audio recording, which Corwin provided to King, of a conversation between Martinez Chief of Staff Keith Gardner and his friend, Brian Powell.
Powell, then an EMS division chief at the Roswell Fire Department, recorded the conversation without Gardner's knowledge. It captures an Oct. 2011 exchange between the two men about a sexual assault case involving their respective relatives. Powell says he recorded the conversation because he had reason to believe Gardner would prevent a "key witness" from testifying in the case [news, Sept. 11: "Giant in the Dark"].
In the conversation, Gardner explains why he doesn't always use his official government email.
"…I never email on my state email anything that can come back to bite my ass," Gardner tells Powell in the recording. "It's all done offline. I never—shit, I never use my state email, because—it is all done on different stuff, 'cause I don't want to go to court or jail."
While many of the emails lend insight into state government, others reflect the frustrations of outsiders. On Nov. 2, 2011, Gloria Marquez, the governor's scheduler, sent an email to McCleskey, explaining that she'd spoken with Lenny Fresquez, who claimed he paid $2,000 in an auction at the National Hispanic Cultural Center to have lunch with Martinez.
"When I spoke with him he was very ugly," Marquez wrote from her Gmail account. "He said it was very frustrating that it has been a year and we have not fulfilled our obligation, but we sure were eager to take his money."
Fresquez is a self-made restaurateur who also works as a boxing promoter. He tells SFR that his businesses, which include restaurants throughout Albuquerque's International Sunport, employ "over 500 people."
"I've always had access to all governors," he says, "because I employ quite a few people in the state of New Mexico."
At a time when the state has one of the worst job-growth rates in the nation, Fresquez claims to be "having difficulty having access" to Martinez, which is frustrating because "we're greatly concerned about Obamacare and other issues facing us."
But the email helped. Fresquez says he, his wife and others were able to sit down with Martinez at Rio Chama Steakhouse—"probably two weeks" after Marquez sent the email.
Other emails show the level of influence out-of-state donors have over state government.
They illustrate fundraisers setting up meetings with major Martinez donors, including one with Gary Luquette, the president of Chevron North American Exploration and Production Company, in Houston. Chevron has contributed at least $5,000 to Martinez. One Martinez fundraiser sent an email about sending thank-you notes and Christmas cards to major donors, such as Texas billionaire Bob Perry.
On May 30, Phil Musser, a Washington, DC-based political consultant, emailed B Wayne Hughes, a California millionaire and major Republican donor, requesting that Hughes wire $75,000 to a newly-formed political action committee, Reform New Mexico Now [news, Nov. 7: "How the Southwest Was Won"]. He copied the governor on her susana2010 email.
Musser explained that the new super PAC would be instrumental in helping "take out" certain Democratic state lawmakers and winning a Republican majority in the state House. Days later, Hughes donated $10,000 to the committee.
Campaign-related emails are not subject to IPRA, leaving election transparency up to state agencies to enforce. But aspects of New Mexico's campaign finance reporting standards are lax—a particular risk now that super PACs, financed by out-of-state cash, can spend unlimited amounts in state and local races.
Reform New Mexico Now is a case in point.
In late May, Reform registered with the New Mexico Secretary of State's office and surprised the state with a barrage of advertising in both Democratic and Republican races. It would become the state's top-spending super PAC in the 2012 elections, pouring $2.4 million into New Mexico.
The only name on Reform's registration document was that of Anne Perez, a Las Cruces woman whose name would appear on mailers and TV commercials—a means of giving regulatory authorities and the press someone to hold accountable.
But Musser, in his email, makes no mention of Anne Perez. "Jay McCleskey, also copied here, is coordinating the effort directly," he writes.
SFR has been attempting to contact Perez for months to ask about several SOS investigations into whether Reform broke various campaign finance laws—including not registering within a 10-day period of raising money, not reporting the occupations of its contributors and illegally coordinating its expenditures with candidates.
Reform has never listed a correct phone number for Perez on its filings. In its latest report, Perez' phone number is only listed as "505." SFR obtained her number through a relative and recently caught Perez on the phone.
"You know, I'd rather if you just sent the questions in and then we can respond that way," she said. "Rather than just catch me on the fly." She provided the Albuquerque PO box address for Reform. When asked for an email address, Perez replied, "You know, I don't have it right now." SFR obtained it from previous campaign filings.
McCleskey has declined several requests to detail Perez' duties, and Perez has not replied to SFR's phone and email messages.
"Anne Perez is the official treasurer for Reform New Mexico Now," McCleskey writes in an email, providing a link to an article about King, the Democratic AG, using his treasurer's name on campaign finance reports years after the treasurer had left the committee. "Unlike Gary King, our treasurer is well-aware that she is the treasurer and we did not forge our treasurer's signature on campaign records."
King himself may be part of the problem. As attorney general, he's responsible for enforcing IPRA, as well as campaign finance law. But in his six years in office, King has gained a reputation as an underwhelming prosecutor.
In her NMPA speech, Martinez boasted that she had "directed all executive departments and agencies to respond promptly, and thoroughly, to requests for information."
Yet since she took office, the number of formal IPRA complaints filed to the Attorney General's Office has spiked. In 2010 and 2011, the AG received around 30 formal complaints of alleged IPRA violations. In 2012, the office had received 40 complaints as of December—one of which is SFR's.
In June, SFR filed a test IPRA, requesting all emails sent by certain governor's office staffers on the same date as a widely circulated email sent to those same staffers. (The original email contained a list of nonunion teachers produced by the state Public Education Department.) In August, after a nearly two-month delay, the governor's office provided SFR with a single email—and not the one that had already made the rounds publicly. SFR then filed a complaint.
King maintains that all communications discussing public business are public, regardless of whether they're sent or received from private email addresses.
"That's always been our position," his spokesman, Phil Sisneros, tells SFR. "If it has to do with state business, it is discoverable under IPRA."
But SFR's formal complaint, now four months old, has yet to be resolved.
Secretary of State Dianna Duran—a Republican whose own 2010 campaign paid McCleskey's former firm thousands for advertising—also oversees campaign finance and election laws.
But, in a similar vein, it took months for Duran's office to fine Reform $250 for failing to register within the 10-day period of raising money [SFReporter.com, Dec. 1: "Documents: Reform New Mexico Now Fined for Ethics Violations"], even though Duran did fine other PACs and candidates (from both parties) before the election.
After election season, Duran's office conducts a random audit of 10 percent of all political action committees. The Center for Public Integrity, in an investigation into New Mexico's law, has called that 10 percent number inadequate.
Nonprofit advocacy organizations like FOG are in a position to demand better oversight. But even FOG faced controversy this year when Rogers, who had served on its board for years, was embroiled in the email scandal and ultimately resigned.
FOG Executive Director Gwyneth Doland declined to comment about Rogers' resignation, but calls Martinez' directive to bar public business on private emails a "huge step forward."
"It's really important to us that those at the top set a good example," Doland says.
But Viki Harrison, the executive director of the nonprofit Common Cause New Mexico, says that extends to organizations like FOG.
"Everybody has to be held equally accountable," Harrison says. "We should hold the nonprofits to the same standards that everybody else is. People should expect that disclosure from us."
Martinez is, however, making some progress. In addition to barring the use of private email for state business, she attempted to add the names and salaries of public employees to the state Sunshine Portal, which stores public information (such as state contracts) online. A district judge rejected that change, but FOG will attempt to get the information onto the portal in 2013.
But her relationships with the media have been less smooth.
Darnell declined SFR's requests to speak with him or Martinez for this article, as did newly appointed spokesman Enrique Knell. Now halfway through her term, she has yet to sit down with SFR for a formal interview. She did, however, recently spend a day with Fox News' Greta Van Susteren, who produced a friendly, 33-minute segment including such softballs as, "Who's the animal lover, you or your husband Chuck?"
When Darnell did respond to SFR's queries during his two years as Martinez' top spokesman, he usually did so over email—a practice that Gerard Corbett, chairman and CEO of the Public Relations Society of America, says he doesn't always endorse.
"The most successful PR people know how to manage relationships," Corbett tells SFR. "Hiding behind a computer and only responding by email is not completely authentic."
It also hints at a more profound issue.
"There's been a bit of a general trend that government is being more proactive in trying to control their message—be it reporters who have to go through a central public information officer to get answers or stymieing low-level government officials' ability to speak to the press," says Mark Caramanica, Freedom of Information Director for the Reporters Committee for Freedom of the Press.
One email obtained by SFR shows a public official sending a statement for the Wall Street Journal to McCleskey for approval, for instance. And while no Martinez administration officials commented for this story, McCleskey did, noting that SFR's "approach on this is partisan in the extreme" and emphasizing Martinez' progress.
"[T]here is no state law requiring government officials to use state government email addresses," McCleskey writes in an email to SFR. "In fact, Governor Martinez is the first Governor in the history of New Mexico to ever use state email." She is the only governor to require staff to use government email accounts to conduct public business, he writes, adding that state lawmakers traditionally use private rather than government email accounts.
And while King's office insists that public business is a public record, regardless of whether it's conducted over private email, no state law explicitly says so. The Legislature may address the issue in January, but Doland says she's unsure about FOG's approach.
"We're going to hide under a rock with a helmet on," she jokingly told SFR last month during a Weekly Word podcast. "I think this is an intensely partisan issue; it's an intensely political issue. There are pitfalls and bombs everywhere in here, so it is something we have to deal with very carefully."
But Arnold-Jones, who worked on transparency measures as a state legislator, says the problem goes beyond the law.
"The real quandary is, you either behave honorably or you don't," she says. "I don't believe you can change the law in order to make people act more honorably."
On Wednesday, Dec. 5, SFR informed McCleskey that it had obtained copies of all the emails Corwin gave to King. The following Monday, Dec. 10, SFR received a letter from Paul Kennedy, an Albuquerque lawyer who has represented the governor's office on a range of issues, including redistricting. Martinez appointed him to the state Supreme Court earlier this year, but Kennedy lost his seat in the general election.
"This office represents Governor Susana Martinez," Kennedy wrote. He went on to discuss the emails. "This letter is intended to confirm that, due to the ongoing criminal investigation into their theft, these records are not public and were in no way subject to release under IPRA."
Some of the emails released to SFR were sent by Kennedy himself, to the private account of Jessica Hernandez, the administration's general counsel. In one, dated Sept. 10, 2011, Kennedy provides information on potential candidates for a post in the 2nd Judicial District.
Kennedy cites attorney-client privilege as his reason for sending emails to Hernandez' private account.
"If it was stolen and disclosed, I'll deal with that at the right time," he adds. Neither Kennedy nor the governor's office would say whether the administration paid Kennedy taxpayer money to send the letter to SFR.
In any case, it contrasts Martinez' NMPA remarks.
"As I said earlier, our local newspapers tell OUR story. They record our history in a way that we can feel, touch, and hold," the remarks read. "And throughout history, you—the newspapermen and women of the world—have been a mainstay of this country…strengthening the roots of our democracy through the free flow of information to our citizens."
According to the drafted remarks, Martinez thanked the press association for inviting her, then ended the speech: "I look forward to working with you all in the upcoming years to come." SFR To read a year's worth of SFR coverage on closed government issues in New Mexico and to read the emails referenced in this story, visit SFReporter.com/closedgovernment.
Difference of Opinion: state's top law enforcement officer is "not withholding any documents" while Gov. Martinez' attorney asserts, "these records are not public."