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Documents missing in $650K state settlement

Copyright © 2019 Albuquerque Journal

In October 2014, five female administrators in the state Department of Finance and Administration alleged workplace discrimination and mistreatment by top male supervisors and won a $650,000 secret settlement from the state.

The state paid up just weeks after a lawsuit was threatened against top DFA officials and then-Gov. Susana Martinez, but, as part of the deal, the women were required to maintain confidentiality for years.

Today, there’s no documentation in state Risk Management records showing what was alleged or who was accused – despite a state law requiring retention of such records.

All that remains is the bare-bones evidence of a payout – a copy of the $650,000 check written to the attorney representing the five women and each of five 12-page settlement agreements.

Each settlement mentions a “draft complaint” that had been submitted by the women’s attorney, but no such complaint could be located within the agency.

“There have been other scenarios like this that we have come across,” said state General Services Secretary Ken Ortiz, an appointee of Gov. Michelle Lujan Grisham, who took office Jan. 1. “With respect to this one, we don’t know if there was anything else that never made it to the file. All we’re aware of and all we can provide you is what’s contained in the file.”

Ortiz’s agency oversees state Risk Management, which handles lawsuits against state agencies. The settlement agreements were furnished in response to a Journal request under the state Inspection of Public Records Act.

The DFA settlements had been sealed for more than four years.

However, the Journal recently obtained a copy of the 37-page proposed complaint from the attorney for the women. The complaint alleged a climate of discrimination against older women by top male DFA supervisors, along with illegal retaliation and discrimination based on sexual orientation, race and national origin.

There were allegations by the women that at least two top managers shouted and yelled at them, with one saying she was “treated like a slave,” according to the proposed complaint provided by Santa Fe attorney Merit Bennett, who represented Jolene Slowen, Lisa Lujan, Maureen Nash, Carol Ortiz and Stephanie Sloman.

In one instance, a Central Payroll Bureau chief already at odds with one of the managers confronted her as she left the DFA human resources department in April 2013. He wanted to know why she had been there and what she was holding in her hand.

It turned out to be a “feminine product,” and he “got angry, telling her ‘I didn’t need to see that,’ and glared at her from his desk.” She quit the same day, the proposed complaint stated.

Because of the mistreatment, two of the women transferred to other state agencies, the complaint states. A third, who had been a deputy director, was sent to work at the Governor’s Office after she became a whistleblower. All but one currently work for a state or local government agency.

Gov. Martinez and her staff were informed on “numerous occasions” about the discrimination and mistreatment but failed to intervene to stop the abuse, the complaint alleges.

Attorney Bennett told the Journal recently that he wasn’t surprised that the proposed complaint is missing from state files.

“All of this should be part of the public record,” Bennett said. “The main reason? Taxpayer money is being spent to settle these claims, and that information should be totally available and discloseable to the public.”

A believable story

Defendants listed in the proposed complaint included then-DFA Cabinet Secretary Tom Clifford, who left DFA in 2016 and was appointed by Martinez to the University of New Mexico Board of Regents. His term ended last Dec. 31. Another proposed defendant was then-DFA Deputy Cabinet Secretary and State Comptroller Ricky Bejarano, who resigned from DFA in early 2015 to become deputy state treasurer with a $30,000 annual pay increase. He is now a vice president at Northern New Mexico College in Española.

Clifford told the Journal in an email last week, “The complaint contains many unfounded allegations against the DFA as it was managed during my tenure. We did not practice, endorse, or condone the types of discrimination described in the complaint.”

Bejarano said he hadn’t seen the complaint but denied that discrimination or retaliation occurred.

The complaint alleged that, after Clifford hired Bejarano in October 2011, Bejarano “illegally announced that he wanted to ‘bring in younger people,’ ” prompting one of the five women to admonish him for making such a statement.

Asked about that allegation, Bejarano told the Journal he only said, “We probably need new blood.”

The women included one deputy director, a bureau chief, and three administrators.

Four of the five were over 40 years old, two are Hispanic, one is Native American and gay, and two are Caucasian, including Sloman. She alleged that Gilbert Kometa, her supervisor, made offensive remarks about her German heritage, saying he never learned the German language because of what “they (the Nazis) did.”

She also alleged that, when she interviewed for a promotion and was the most qualified candidate, Kometa told her he had chosen an African American female instead, telling Sloman, “You will have more opportunities in life than she.”

Kometa, described in the proposed complaint as an African American male from Cameroon, resigned from DFA in July 2015 and is now working out of state in the private sector.

He couldn’t be reached for comment for this story.

Bennett said the fact that five women joined to file the complaint “makes everybody’s story more believable. This was not unbelievable stuff anyway. I know people in Risk Management, and essentially they will signal to me when it’s time to fight and it’s time to settle, and I immediately was informed that they wanted to talk.”

“The complaint basically set it all out, and they knew that they were in trouble.”

$5K talking penalty

The five women were bound to keep quiet about the payment – and their allegations – indefinitely, under the settlement agreements dated Nov. 3, 2014 – the day before Martinez won reelection.

According to the agreements, if asked about their claims by anyone other than immediate family or legal counsel or tax advisers, the women “may only respond by stating, ‘There was a personnel action that has been resolved.’ ”

Any unauthorized disclosure would cost them $5,000, each settlement stated.

The settlements cited a state law that permits confidentiality until 180 days after the latest of four triggers occurs, such as when a file is closed or when the statute of limitations for bringing similar legal claims expires.

As to the term of confidentiality imposed, the DFA settlements weren’t specific, stating only “some of the dates referenced in the Statute are not now known.”

So the women were instructed to seek permission from the state General Services Department public information officer if they ever wanted to talk about what happened.

Attorney Bennett said he received word from Risk Management in April that enough time had expired under the law to make the settlements public.

More transparency

Ortiz said current Risk Management officials don’t know what happened to the missing proposed complaint, but he added that, under his watch, all pertinent claim documents will be maintained.

When Ortiz was appointed this year, the Risk Management division had a 33% vacancy rate. All the attorneys in the litigation had left, and there was no risk director or deputy director.

Several former Risk Management officials told the Journal last week that they were surprised the proposed DFA complaint was missing but couldn’t say why.

State records retention schedules require that general claims information be kept on file for three years after a case is closed.

The DFA case was closed in 2015, but Risk officials say there’s no notation in the settlement file showing any records were destroyed.

The issue of secret legal settlements and lengthy confidentiality terms imposed by the prior administration has prompted Ortiz to look at ways to improve transparency. Later this summer, his department plans to post settlements online when they become public.

Ortiz said he and his staff are also discussing reforms to the state Risk Management confidentiality law with various groups, including those committed to open government.

So far this year, Risk officials haven’t been requiring the “restrictive” types of “covenants of confidentiality” that were included in some settlement agreements of the past, he said.

Settlement recipients are informed about state Risk’s confidentiality of records law, but aren’t subject to additional penalties for disclosures beyond what is set by existing law, Ortiz said.

New Mexico law makes it a misdemeanor to prematurely reveal confidential settlement records and sets a maximum $1,000 fine.

One recently disclosed settlement involving a New Mexico State Police officer in 2015 set a $50,000 penalty assessment for violating confidentiality.

Ortiz said his agency is also not requiring an “extended period” of confidentiality that has sealed some settlements for years.

“We want to balance the public’s right to know with the requirements currently in statute,” Ortiz told the Journal.

Meanwhile, State Auditor Brian Colón told the Journal last week his agency is “extremely concerned” about settlement practices of the past.

“We’ve engaged a special audit to evaluate whether process and protocol was followed as it relates to these claims. Any time we write a check from the state of New Mexico’s checkbook we better make sure we are following the process. Otherwise, there’s no accountability.”

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