SANTA FE, N.M. (KRQE) – “Anytime you can essentially hide what you’ve done with the taxpayer’s money, that’s a bad day for New Mexico,” says State Auditor Brian Colón. He’s referring to the secrecy behind Risk Management settlements.
News 13’s year-long investigation is a rare inside look at state government when things go awry. And when public employees are accused of wrongdoing, taxpayers are on the hook. Every year, millions of dollars are paid out for everything from discrimination and negligence to sexual harassment and civil rights violations.
For example, in 2015, after a visitor to the National Hispanic Cultural Center fell into a poorly marked six-foot deep hole in the museum’s parking lot, she received a $350,000 payment from New Mexico in an out of court settlement.
You’ve never heard about the case because it’s been kept under wraps. Our investigation finds state liability settlements have been routinely hidden from public scrutiny.
Misconduct claims made against public employees or agencies include property and casualty disputes, human rights, Whistleblower Protection, sexual misconduct, sexual harassment and job-related matters.
Liability claims are handled by New Mexico’s Risk Management Office in Santa Fe. “This function of Risk Management is really important first and foremost because public tax dollars are at stake,” says General Services Cabinet Secretary Ken Ortiz.
Secretary Ortiz says Risk Management staff are responsible for reviewing and investigating all claims. “If we feel it’s frivolous or we can defend it, we’re going to take that action. If we feel that the exposure to the state, if we fully litigate it with a potential jury award is too high, we (will) negotiate a settlement,” Ortiz says.
Following a Public Records Request, state officials turned over to KRQE News 13 settlement agreements going back six years. We reviewed thousands of pages relating to 110 cases that had been kept under wraps for years.
For example. In 2014, during the Susana Martinez administration, five Department of Finance (DFA) employees alleged discrimination and retaliation by high ranking government officials, including then DFA Cabinet Secretary Tom Clifford. In a draft complaint, the women claimed: “(Governor Martinez) and her staff deliberately chose to ignore and/or excuse the illegal misconduct.”
Even though, on average, it takes two years to resolve a Human Rights claim, Risk Management wrapped up the DFA discrimination case in less than a month. In fact, 18 days after receiving formal notification of the grievance, state officials secretly cut a check to the five women for $675,000.
“I can tell you having practiced law for almost 20 years in New Mexico it’s almost unheard of to settle a case in less than 30 days,” says State Auditor Brian Colón.
Documents show Risk Management settled the politically explosive discrimination case the day before Governor Martinez’s re-election and two months before an investigation of the allegations was complete.
“Our monies went out the door before that final investigative report was completed. That’s hugely concerning,” State Auditor Colón says. “It doesn’t pass the sniff test to me. You have to have all the facts before you write that check.”
The 2014 DFA settlement file remained confidential until it was released to News 13 last year.
“What’s wrong with this picture is you have a situation where the Executive branch had the opportunity to abuse its power and do it in the secrecy of night,” Brian Colón says.
Of the 110 Risk Management claims News 13 reviewed, 32 relate to allegations of medical negligence at the University of New Mexico Hospital.
For example, after a patient claimed UNMH doctors botched elective back surgery, Risk Management attorneys settled the case out of court for $1,000,000.
In 2016, the family of a patient claimed a misdiagnosis and medical negligence caused the patient’s death. The case was settled out of court for $725,000.
Between 2014-2018, Risk Management settled UNMH medical-related claims for a total of $11,500,000.
University of New Mexico Health is a statewide medical system encompassing the state’s only Level 1 trauma center, only Children’s Hospital, only Psychiatric Hospital, UNM Sandoval Regional Medical Center and clinics throughout New Mexico. We have on average about 900,000 patient visits each year. Over the last several years, the number of tort claim notices the UNM Health System has received has ranged between approximately 110 and 140 per year. Not all of these become lawsuits.University of New Mexico Hospital
In 2013, a woman driving on a State Road in Quay County was killed after she swerved to avoid hitting a cow. Family members claimed the State Transportation Department was negligent by not keeping cattle off the roadway. The case was closed for $200,000.
in 2014, a Probation and Parole Officer was accused of sexual misconduct involving a woman on probation. Risk Management settled for $400,000.
in 2013, a Department of Public Safety Investigator claimed to be the victim of retaliation and Whistleblower Act violations after he was harassed for reporting misconduct. Risk Management attorneys paid the investigator $900,000 and sealed the file.
In 2014 a faculty member at Northern New Mexico College in Espanola was fired after he questioned college policies. He filed a claim for Whistleblower Act protection and received $295,000 in a confidential settlement.
In 2014 an administrator at a Children, Youth and Families Department Juvenile Facility alleged Human Rights violations including discrimination, retaliation and hostile work environment. The state paid out $100,000.
Over a four year period, misconduct settlements we reviewed cost taxpayers more than $27,000,000. Every one of those cases was resolved secretly and kept confidential for years.
Secretary Ken Ortiz says when he took over the General Services Department last year he was shocked to find Risk Management cases shrouded in secrecy. “It’s taxpayer dollars and the public has a right to know what state government is doing and how we do it,” Secretary Ortiz says.
Last year, Ken Ortiz ordered any settlement negotiated under his watch be made public in a reasonable time consistent with state law. “It’s absolutely a no brainer. The public has the right to know what we do and how we do it,” Secretary Ortiz said.
The issue has caught the attention of State Senator Sander Rue who has been a long-time advocate for transparency in government.
“These settlements are paid out with taxpayer dollars. I would argue that the citizens in New Mexico should be able to see what’s happening to their money,” Senator Rue said.
Senator Rue submitted legislation during this year’s 30-day legislative session proposing the elimination of secrecy surrounding Risk Management settlements.
“This is information that’s supposed to be available to the public. But the way the statutes were written, it allowed agencies to hide this from the public,” Senator Rue tells News 13. “It’s a violation of the public trust.”
“Anytime we cut a check that comes out of the public’s resources, we ought to be very sure that we’re doing it in their best interest, not political expediency, not for anybody’s personal agenda, but in the public’s best interest. That’s our job every day,” says State Auditor Brian Colón.
It appears governmental secrecy surrounding out of court settlements may be a thing of the past. Yesterday (February 17) lawmakers overwhelmingly approved Senator Rue’s Bill eliminating the confidentiality provision in the Risk Management Statute. The measure now goes to the Governor for her signature. A spokesperson says Governor Lujan Grisham is expected to sign the measure into law.