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AG to UNM: Reconsider sports cuts process or I’ll take you to court

Copyright © 2018 Albuquerque Journal

New Mexico Attorney General Hector Balderas on Thursday says he is willing to take the University of New Mexico to court if it doesn’t redo the entire process that led the Board of Regents’ vote to discontinue four sports.

Balderas’ office on Wednesday issued an opinion in response to two formal complaints that the July 19 Board of Regents decision violated the state’s Open Meetings Act by not adequately informing the public about the matters to be discussed in that public meeting. On Thursday, he upped the ante.

Not only does Balderas consider the July 19 meeting invalid because of his decision regarding the Open Meetings Act violation, but he said at a news conference Thursday he will take the university to court if it doesn’t adequately open the entire evaluation process about what, if any, sports would be cut.

The board voted 6-0 on July 19 to approve a proposal from Athletic Director Eddie Nuñez and UNM President Garnett Stokes to eliminate men’s soccer, men’s and women’s skiing and the women’s beach volleyball teams after this coming fiscal year.

“I’m calling on the University of New Mexico to increase transparency and accountability,” Balderas said, “but most importantly to reconsider their entire evaluation process … and methodology as well as redo their meeting agenda and action that they wish to take. This means that they must not only provide the accurate information, but I want them to improve their process of evaluation and their process by which they involve the community members and the student population that they’re impacting.”

A UNM spokesperson said Thursday afternoon that the school was unable to comment because it had not received any communication from Balderas about what additional measures he was seeking beyond Wednesday’s legal opinion. That opinion said the regents should issue a new agenda and take a new vote within 15 days.

Regarding further communications with UNM, Balderas said during the news conference, “I’m putting them on notice today through the general press that they are still subject to full enforcement action by the Office of the Attorney General.”

UNM was not notified of the news conference and was still unaware of it until contacted by the news media afterward.

Later Thursday, the Journal obtained a copy of UNM’s response to Wednesday’s letter from the Attorney General’s Office that stated UNM takes its responsibilities and obligations under the law seriously and, as such, “ask that (the AG’s Office) reconsider your conclusions and rescind your letter.”

In UNM’s five-page response, signed by Patrick Hart, associate university counsel, it states the Board of Regents “intends to hold a special meeting to reconsider it’s actions” regarding the July 19 vote. That meeting will be in the 15-day time frame sought by the AG.

It also states: “Although this issue is moot in light of the upcoming meeting and agenda, the University would nevertheless like to address the alleged non-compliance because (1) it was never the University’s intent to be vague or overly broad in the agenda item, and (2) the University believes that the agenda item complied with the guidance provided by the AG Compliance Guide.”

Balderas also expressed frustration, and even said he is “angered” with UNM because this is not first time the university has faced legal challenges related to transparency and handling of money. He said the university is “causing a crisis of confidence in the community” by repeatedly opening itself up to potential litigation.

“My number one job is to ensure that the University of New Mexico follows the law and is able to govern in a way that they go back to the business that they should be in, which is educating students, and not get the university exposed to lawsuits and investigations,” Balderas said. “They have not had a good track record. We still have pending, ongoing matters that we’re investigating at the university. It is much cheaper, safer and effective to just be overly transparent, overly report and follow the law. I believe that they have their work cut out for them to turn around a quick plan to address all these issues.”

He later said “the clock is ticking” on UNM to get the matter resolved, but he is “prepared to go to a court of law and defend these students if they (UNM) have not remedied the situation within 15 days.”

UNM had said its decision to cut sports was three-pronged: to cut costs after multiple budgets that have ended in the red; to address the athletic department’s non-compliance with federal Title IX gender equity guidelines; and to stay in line with Mountain West Conference affiliation (each sport cut was not a member of the MWC while all 18 sports remaining are).

Balderas criticized UNM for failing to provide its reasoning for the cuts until very late in the process.

UNM has also said it needed to address it obligations to the state’s Higher Education Department, which has placed Lobo athletics on an Enhanced Fiscal Oversight program that includes Athletics paying back past debts and tightening its belt. The budget plan UNM has sent to HED includes $1.9 million in future cuts by a “reduction in sports.”

Higher Education Secretary Barbara Damron said late Thursday that she was encouraged to see that UNM has “taken concrete steps to address the deficiencies in the Athletics budget.”

But she also said UNM’s leadership and regents “have sole authority to determine which steps should be taken as it exercises its fiduciary reponsibilities.”

Balderas earlier in the day posted on his Twitter account a link to a Journal article on his Wednesday ruling and included the comment: “This is an opportunity to get this right for our students and community. @UNMLOBOS #nmsports #nmpol #nmleg”

Asked Thursday if he was suggesting he was telling UNM he disagreed with the decision to cut sports, Balderas said the tweet was only meant to imply the process can be fixed.

“What I’m saying is they need to be transparent with their methodology,” Balderas said. “Set the highest standard of a review process. And artfully communicate that with the general public. Their final outcome is up to them.”

Later in the question-and-answer session with media, Balderas did say he was aware of several local lawmakers who have said since the July 19 vote that they wished UNM had come to them to ask for help if they were contemplating cutting sports and that he would hope UNM does that now. UNM has contended that it has repeatedly requested extra funding specifically for Athletics.

Since the spring of 2017, the AG’s Office has had an ongoing investigation into UNM athletics about transparency and financial matters. Balderas said there is no timetable on when that will be resolved.

He said his office continues to look into whether any laws were violated relating to the use of public funds or in its obligations to be open and transparent.