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Thursday, October 21, 2010
State Watchdogs Snarl Behind Closed Doors
By Deborah Baker
Copyright © 2010 Albuquerque Journal
Journal Staff Writer
What happens when the two top watchdogs in New Mexico government get into a turf battle?
Who knows? It's a secret.
The legal scuffle that began last year in state District Court between Auditor Hector Balderas and Attorney General Gary King has moved up to the state Court of Appeals.
It's on the appellate court's general calendar, according to the clerk's office. But, because the case remains sealed, as it was in the lower court, everyone is staying mum about it. The record is not accessible, so it can't be determined what the issues are in the appeal.
"Since it's under seal, there's really nothing we can talk about ... other than the fact that it's still pending," said Phil Sisneros, a spokesman for King.
"It's a matter that's working itself through the legal process at this point," said Evan Blackstone, general counsel in the Auditor's Office. "Our ability to comment is limited by the order of the court. We don't want to risk violating any court order."
The attorney general and the auditor, both Democrats, are running for re-election this year to second terms.
Their dispute arose when an investigator with King's office had a broad subpoena served on Balderas' office in January 2009 seeking personnel records, e-mails, investigative files and other documents.
The subpoena also sought records concerning Balderas' use of a state vehicle.
The attorney general was investigating complaints to a fraud hot line set up by the auditor's office that concerned Balderas himself. Balderas said he had turned those complaints over to King to avoid a conflict of interest.
Tipsters' allegations included a claim that an Auditor's Office employee had baby-sat Balderas' children on state time and that the office had made improper purchases.
Balderas said that the allegations were bogus and that he gave the AG documents proving it.
The auditor said he wouldn't fully comply with the subpoena. Balderas' lawyers complained that King's office was on a "hyperaggressive" fishing expedition that was a waste of time and an abuse of the grand jury system and that would effectively shut down Balderas' office for a time.
Balderas also said he had confirmed there was no grand jury inquiry requiring disclosure of the information.
The auditor's lawyers said the subpoena "reflects a hostile attitude" by King's office.
The legal wrangling was the subject of a closed-door hearing for more than two hours in May 2009 before state District Judge Michael Vigil.
The Attorney General's Office didn't comment at the time. Balderas said after the hearing that what was at stake was his ability to independently investigate other state agencies without interference.
Balderas said that if he provided what the AG sought — information gathered in the course of ongoing special audits and examinations generated by hot line tips — it could compromise investigations.
"It would mean an elected official could obstruct an investigation," Balderas said. "It's our position that there should be no interference with that auditing function."
Because there is no access to the court records, the outcome of that hearing before Vigil is not known.