Copyright © 2019 Albuquerque Journal
SANTA FE – One man – unable to care for himself – ended up cold, hungry and homeless in Albuquerque, according to a 100-page lawsuit.
He was one of six developmentally disabled adults entrusted to state care who failed to get the protection from abuse and neglect they were entitled to, the suit alleges.
The litigation ended quietly last year with a $1.5 million settlement.
It’s one of more than 20 settlements of at least $20,000 approved by the state in the first nine months of 2018. The Journal reviewed the settlements after a public records request.
Altogether, New Mexico authorized about $7.9 million in settlements of at least $20,000 during that nine-month period.
Among them were:
⋄ $25,000 to settle a lawsuit filed by a woman who accused New Mexico State University of refusing to hire her because she’s Christian and heterosexual. Camille Lenoir said the school improperly rescinded an offer to make her an assistant basketball coach.
⋄ $80,000 to settle claims that then-Gov. Susana Martinez’s security team defamed and assaulted two people who showed up at a political event in Deming. The plaintiffs in that case, Scott and Colette Chandler, run a youth ranch and wanted to deliver a petition to the governor.
⋄ $2.5 million to resolve allegations of sexual harassment and discrimination in the Corrections Department. Six correctional officers who worked at the state prison in Los Lunas said they endured a “sexualized, violent environment” in which male colleagues exposed themselves, made derogatory comments and inappropriately touched female officers.
The state’s Public Liability Fund spent about $32 million in the most recent fiscal year, from July 1, 2017, to June 30, 2018, on legal defense and settlements – roughly in line with previous years, according to state records.
Millions for defense
Just the cost of defending the state – attorney fees and similar expenses – accounted for $10 million of the liability fund’s spending in fiscal 2018. The cost of settlements, such as “indemnity payments,” made up $22 million, according to state records.
In its most recent annual report, the state’s Risk Management Division warned that it is “highly unlikely that cost of defense trends will experience an appreciable decrease in coming years.”
The Public Liability Fund’s total spending has fluctuated over the last seven years from about $28 million to $43 million. The cost of legal defense has ranged from $10 million to $15 million a year, and the cost of settlements has ranged from $16 million to $30 million a year.
In settlements, the state typically denies wrongdoing and says it’s agreeing to end the case as a compromise or to avoid further litigation costs. The parties often agree to avoid disparaging each other or speaking about the settlement.
The Risk Management Division – part of the General Services Department – provides legal representation to state agencies and insures them against tort claims, and allegations of civil rights violations and similar claims. It also provides insurance for some local government bodies.
The settlements reviewed by the Journal – from Jan. 1 through Oct. 1, 2018 – cover claims big and small, ranging from personal injury to civil rights violations.
They largely escape public notice.
New Mexico law shields state Risk Management Division settlements from public view for 180 days. After that, the documents can be obtained by requesting them under the Inspection of Public Records Act, which is what the Journal did.
But it’s often unclear which claims have been settled or when they can be released.
The Legislature has rebuffed efforts to make some settlements easier to track.
Nonetheless, Ken Ortiz, the new Cabinet secretary for the General Services Department, said last week that his agency is working with information technology staffers to start automatically publishing the state settlement agreements. Starting in August, he said, the goal is to post them online as soon as the legally required confidentiality period expires.
But more could be done.
Ortiz said his department supports clarifying the law that sets the initial 180 days of confidentiality. The goal would be to precisely define when the 180-day period starts.
Under the current system, the timeline isn’t always clear. State law says the confidentiality period can start on the date of the settlement, the date the claim is closed administratively by the state, the date all litigation is completed or even the date all statutes of limitations have run on a claim.
Ortiz suggested making it clear the 180 days starts on the day the settlement is reached.
Republican Sen. Sander Rue of Albuquerque and Democratic Rep. Linda Trujillo of Santa Fe worked on legislation to shed more light on how much New Mexico spends to
settle allegations of discrimination in state agencies.
A proposal they sponsored earlier this year called for the state to publish the nature of discrimination claims, the agency against whom they were lodged and the total amount of state money used to settle the allegation, including damages and attorney fees. The information would be published on the state’s online sunshine portal after a certain amount of time elapsed.
The proposal passed the Senate, but it did not make it through the House.
Ortiz – who took office Jan. 1 with Gov. Michelle Lujan Grisham’s administration – supported the bill.
“I wholeheartedly support and applaud the transparency efforts of Sander Rue and Linda Trujillo,” Ortiz said in an interview.
Arbitrator called in
The lawsuit over the treatment of individuals with developmental disabilities began in 2012.
The six plaintiffs, who aren’t identified by name in the suit, accused the state Department of Health and others of failing to provide adequate services and violating their constitutional rights.
To settle the case, the attorneys involved participated in a quasi-trial before an arbitrator to determine how much the state should pay, with the range set at $500,000 to $1.5 million.
Retired Judge William Lang issued a $7.5 million award in the plaintiffs’ favor, so the state paid $1.5 million, the maximum the parties had agreed to before the proceeding.
The suit alleged that one of the plaintiffs, a Clovis resident identified by the initials “RH,” was sent to a boarding home where he had to sleep outside if he didn’t come home on time, regardless of the temperature.
He wasn’t permitted to attend a nearby church either, the suit alleged.
At one point, a family member found him homeless and hungry in Albuquerque, according to the lawsuit.
Dispute at NMSU
LeNoir, a former college basketball star, received a settlement of $25,000 after filing suit against New Mexico State University.
She said she had initially been offered a job as an assistant women’s basketball coach but that the offer was rescinded after the coach saw an online interview she’d participated in.
In the 2011 interview, LeNoir explained that she gave up same-sex relationships because they conflicted with her Christianity, and she described homosexuality as “wrong” and sports as “evil.”
The settlement notes that New Mexico State University disputes the claims made in LeNoir’s lawsuit.
Suit over security team
The Chandlers – owners of the Tierra Blanca Ranch High Country Youth Program – settled their case for $80,000 after accusing State Police officers serving on then-Gov. Martinez’s security team of bullying, intimidation and defamation.
The allegations centered on a 2014 incident at the Grand Motor Inn in Deming.
The Chandlers said the Republican Party of Luna County had invited them and others to meet the governor that day, but State Police officers improperly threatened them with arrest when they showed up and forced them to leave, they allege.
Other supporters of the Chanders’ youth ranch were also bullied by State Police, an attorney for the Chandlers, Pete Domenici Jr., said in a letter in the court file.
The Chandlers had a petition with 1,000 signatures they wanted to present to the governor, asking her to meet with them, according to Domenici’s letter.
The Chandlers at the time faced allegations of abuse at the ranch they have run for young people – accusations they vigorously denied and still maintain were unfounded.
The settlement agreement says it isn’t an admission of liability by the state defendants.
The $2.5 million settlement over sexual harassment in the Corrections Department was widely reported last year. It came after a 143-page lawsuit was filed in 2015.
The suit alleged that female officers were “subject to unthinkable and constant sexually based violence and harassment.”
The settlement made clear that the department disputed the allegations. The payment simply “represents the costs associated with the disruption that continued litigation may have on NMCD’s operations,” the agreement said.