Investigators from the New Mexico Attorney General’s Office raided the Española School District Information Technologies Department, Jan. 13, looking for undisclosed items, including documents at the center of a lawsuit.
The lawsuit, filed by the Attorney General’s office, Jan. 12.
Investigators Benjamin Baker and Jon Bergevin, from the Special Investigation Division of the Attorney General’s Office served Española School District Superintendent Eric Martinez, with a search warrant, Jan. 13, before spending several hours collecting documents from the District’s Information Technology Department.
School Board President Pablo Lujan said the agents stayed at the Office until 5 a.m. gathering documents, but would not disclose exactly what type of documents they took with them.
Search warrants are signed by a judge, only after a law enforcement officer presents probable cause that a crime is, or has been, committed.
Lujan dismisses both the search warrant and the lawsuit as an example of Attorney General Hector Balderas playing politics.
“Hector is just playing political games because of the upcoming School Board election, because of his ties to the mayor for the party she hosted when he was running for AG,” he said.
It is unclear which jurist signed the warrant that was obtained almost 24 hours after the Office filed a lawsuit regarding an outstanding public records request.
Through the lawsuit, in a Writ of Mandamus, the Office is asking the court to demand District officials hand over nearly 200,000 emails that were identified as responsive to a public records request filed with the District on March 22, 2016, by Bergevin.
This is the second public records lawsuit brought against the District this fiscal year and the latest incident in what seems to be a growing list of trouble the District has had with state regulators.
The first lawsuit cost taxpayers $46,000 brought by the Rio Grande SUN, regarding public records.
The investigators met with Martinez, Records Custodian Crystal Garcia and Information Technology Director Andrew Trujillo for approximately two hours before driving to the Española Valley High School to collect the files.
The Information Technology Department is housed at there.
Bergevin submitted the original request about six weeks after he submitted a similar public records request to the Rio Arriba County Clerk seeking contract and other information.
His request to the District sought contract documentation that included, but was not limited to, conflict of interest forms submitted by the vendors and the contracts that outlined the goods and services that should have been provided.
Some of the records sought belonged to vendors like, Joseph Torres of Conectas, LLC.; Rio Arriba County Commissioner Barney Trujillo of 2Smooth Marketing; and Jennifer Lopez and David Jason Vigil of Enchantment Painting, Landscaping and Fencing, LLC.
Both Enchantment and Conectas have been the recipients of $4,999 contracts that Department officials highlight as an example of the District’s willingness to circumvent the State Procurement Code.
Bergevin also sought official communications from the public and private accounts of Lujan, Vice President Lucas Fresquez, Secretary Annabelle Almager, member Ruben Archuleta and basketball coach Richard Martinez.
Those with direct ties to the District aren’t the only ones to have their email scrutinized. Bergevin showed interest in communication relating to District business from the private and public email accounts of political operative Elias Fresquez, former superintendent Danny Trujillo, Rio Arriba County Manager Tomas Campos, Española City Councilor Peggy Martinez, Vigil, Lopez, Torres, contractor Jon Paul Romero and boxing promoter Pat Holmes.
According to the draft lawsuit, the District violated the Act because Garcia failed to answer the request within 15 days of receipt, failed to facilitate inspection in a reasonable time; failed to cite or rely on recognized exceptions to withhold any responsive records; failed to provide explanation for withholding exempt documents; and failed to issue a proper denial for the long overdue request.
Besides asking the court to force the District to produce the long overdue emails, Balderas, through Assistant Attorney General Dylan Kenneth Lange, is asking the court to award his office “money damages, costs and reasonable attorney fees.”
Archuleta said he is embarrassed the District is facing its second lawsuit in six months.
“I feel, as a District, we are not acting in a transparent way,” Archuleta said. “The IPRA request filed by the Attorney General’s Office should have been filled in an appropriate timeframe. By failing to do so it appears that we are hiding something.”
He said after the first lawsuit cost the District much-needed money, he is bothered that more efforts weren’t taken to comply with the request.
“I am disgusted that Superintendent Martinez is not taking the situation seriously,” Archuleta said.
The emails
Lujan said he didn’t learn of the lawsuit until he started getting calls from his friends and acquaintances who saw it on the news.
“I haven’t received anything,” he said. “No one knew about it until Friday afternoon, nor did we know about, the lawsuit — not even our attorneys.”
He said he understands the request has been going on for quite some time, but the District is doing its best to comply.
“This request has been going on since Bobbie (Gutierrez),” Lujan said. “We have been doing our best to do our due diligence to get them the information requested.”
He said the Attorney General’s Office is being unreasonable, given that Garcia has already fulfilled 99 points of the 100-point request.
However, Kenneth Stalter, the Office’s general counsel intervened several months after Bergevin and Garcia failed to come to an agreement during an Aug. 25 telephone conversation, on how and when he could start viewing the emails responsive to the March 22 request.
Stalter expressed dismay that after so much time, Garcia had barely made a dent in the number of emails she reviewed.
“Given the importance of transparency and purpose of IPRA, your response was extremely concerning,” he wrote in the Dec. 21 email. “You stated that ‘1,762 pages of the approximately 200,000 pages total’ had been reviewed and were available for inspection. That is after more than six months, you are allowing for the inspection of less than one percent of the total documents. At that pace, it would take five years to inspect even 10% of the requested documents. This is unacceptable.”
Stalter places the District’s noncompliance date at June 13, 2016. This means the District, at minimum, could be exposed to a $100 per day penalty, for a total of $19,000, for the 190 days between the Dec. 21, 2015 letter to Garcia and the June 13, 2016 non-compliance date. Stalter copied the District’s legal counsel Geno Zamora on that correspondence.
Lujan said Garcia is doing the right thing by making sure she redacts Family Educational Rights and Privacy Act and attorney client privilege information from the requests.
Garcia informed Stalter that fulfilling the detailed request would translate to less resources for District classrooms.
“It is estimated that the school district will expend approximately $21,651.84 of taxpayer and school district funds to complete its response to the Attorney General’s Office’s unduly burdensome and overly broad request by dedicating 864 staff hours over the next 25 months at a current personnel rate of $25.06 per hour,” she wrote. “Of course, if Agent Bergevin and the New Mexico Attorney General’s Office were willing to re-examine and reasonably narrow their request down from 200,000 documents both time and valuable taxpayer monies could be saved.”
As of Jan. 13, Garcia had approximately 4,169 emails ready for inspection.