David James was shot and killed by four Rio Rancho police officers on the front porch of his parents’ home on Feb. 5, 1998. The 37-year-old man was brandishing a ceramic cross that police apparently mistook for a gun. They fired when he refused to lower his “weapon.”
A Sandoval County grand jury determined the shooting was a justifiable homicide, but James’ parents filed a lawsuit in federal court.
Why revive this tragic bit of history?
Because it is relevant in the current debate over the amount of secrecy that is legally allowed, and the amount that ought to be allowed, when it comes to legal claims and settlements handled by the state’s Risk Management Division for state agencies.
In the case of Rio Rancho – which is a municipality and not a state agency – the city and its municipal self-insurer’s fund claimed the amount paid to the James family was confidential. The Journal and the New Mexico Foundation for Open Government went to court. Journal attorney William S. Dixon argued that “what we have here is a stonewalling of a records request that has absolutely no legal basis.”
The newspaper and FOG prevailed, and rather than appeal, the city and self-insurer’s fund disclosed they had paid out $140,000 to the family. Rio Rancho and the fund also paid Dixon’s fees of $35,000 and agreed that in the future, the fund would suggest language to its members that “settlement agreements between public bodies and others may become public records as defined under (the state Inspection of Public Records Act) and may become subject to public inspection upon request.”
“People have a right to know how public money is spent,” Dixon said back then. “It’s a very basic concept.”
Which brings us full circle to Risk Management and the state General Services Department. After the James case and other lawsuits, most settlements involving local governments are public immediately when they involve your money. But those handled by Risk Management for state agencies – take the Department of Public Safety for example – still have too much in common with the old days of secrecy.
While GSD Secretary Ken Ortiz has announced that the department will automatically post settlements online that become public after Jan. 1 of this year – a positive development – there are a still lot of little devils mucking up the details.
First and foremost, the agency is relying on a statute that still gives Risk Management the ability to hide settlements for years. That statute says settlements become public 180 days after the latest of four possible trigger dates. The best known is 180 days after a final settlement. But other sections refer to “the date all statutes of limitation applicable to the claim have run.” Another: “The date all litigation involving the claim and the occurrence giving rise thereto has been brought to final judgment, and all appeals and rights to appeal have been exhausted.” Finally, the “date the claim has been placed on closed status.”
Some of these release dates could delay disclosure for years and give the agency way too much leeway if it wants to keep payments of your money secret.
And making what your government does even more opaque, Risk Management some weeks back rendered an initial conclusion that tort claims notices, required by law before a lawsuit can be filed, are not public record – something lawyers who have worked for the agency in the past say has not been the case. Ortiz recently told the Journal his agency is reviewing that determination.
The consequences are stark. In cases where a tort claim is filed and settled pre-lawsuit, the public conceivably wouldn’t learn about the wrongdoing alleged until years later when the agency decides the settlement meets the criteria to be public. Very convenient indeed for government officials who would prefer those kinds of details be kept out of the public spotlight. Just write a check with taxpayers’ money to head off the bad publicity of a public lawsuit and it’s all good.
The Risk Management secrecy provisions need to be changed. Even the 180-day wait, regardless of when it starts, serves little purpose. It might be good politics to hide damaging allegations and the amount paid to the family of a man shot while brandishing a ceramic cross. But it’s really bad public policy.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.