Copyright © 2020 Albuquerque Journal
When announcing last month that the University of New Mexico had been released from federal monitoring of sexual misconduct cases on campus, UNM President Garnett Stokes and her administration described how the university’s investigations into those complaints are now stronger and more transparent than ever before.
But university attorneys are insisting those investigations be kept secret. University lawyers are arguing that investigative files on employees who were found to have violated sexual misconduct policies are “matters of opinion” and therefore exempt from state sunshine laws. The same goes for the determination letters spelling out the findings of the investigation.
Sexual misconduct issues have come to the forefront at UNM with the #MeToo movement and a Department of Justice reform effort that aimed to improve the way the university handled such cases.
Stokes has said addressing sexual misconduct on campus is a priority. She has highlighted the awareness training that thousands at UNM have completed in recent years.
“We cannot be a strong university unless we address sexual misconduct effectively, fully, and in a timely manner,” she said last month in a statement.
Nearly three dozen UNM employees in the past four years have been found guilty of sexual misconduct or other types of discrimination on campus, according to UNM Office of Equal Opportunity reports and officials. And all of those employees received at least two letters of determination that described what they were found to have done wrong.
But the university has refused to turn over most of those determination letters, following a request from the Journal under the state’s Inspection of Public Records Act.
Stokes, through a spokeswoman, said last week she is now reviewing the decision to withhold the records.
Open government advocates said UNM’s position on the misconduct files is a clear-cut violation of the state sunshine laws.
Melanie Majors, executive director of the New Mexico Foundation for Open Government, said certain opinions are exempt from public disclosure, but she noted that information can be redacted from certain documents. Also, those exemptions don’t apply to matters that lead to a public employee being disciplined, she said.
“If they took action, it’s no longer opinion; it’s fact. And at that point it should be open to public inspection,” she said.
Stokes declined an interview on the topic, but Cinnamon Blair, a university spokeswoman, acknowledged that UNM has a duty to respond to IPRA requests in an efficient manner. She said the university routinely provides thousands of documents in response to hundreds of IPRA requests each year.
“There are limited exceptions specifically spelled out in IPRA, and we work hard at UNM to faithfully interpret the law,” Blair said. “The issue regarding the Journal’s concerns with IPRA relative to UNM has been brought to President Stokes’ attention, and she is requesting information from various members of her staff in order to obtain a better understanding before providing a response.”
Hundreds of cases
When it comes to holding university employees and students accountable to policies that prohibit sexual misconduct and other types of discrimination, the task falls to the university’s Office of Equal Opportunity, or OEO. In a nondescript building with a doorbell on the northwest corner of campus, the office receives reports alleging anything from unrelenting jokes to sexual violence.
The number of cases reported to UNM officials has increased steadily in recent years, which some university officials argue is a good thing as the university works to raise awareness that such behavior isn’t allowed on campus.
There were 492 complaints made to OEO in 2016, and the number increased each year to 888 last year.
“We are impartial and independent. We don’t take sides among parties. We report directly to the presidents,” said Francie Cordova, the OEO director.
The office has jurisdiction to review all forms of discrimination, including by age, race or disability. But more than half of all cases allege sexual harassment, and gender/sex discrimination is the second-most common type of case, according to OEO’s Data Trend Analysis Report, published last June.
Only some of the cases reported to OEO end up with a formal investigation.
Last year, out of the 888 complaints, 109 full investigations were launched. At the end of those investigations, the OEO ruled – based on the preponderance of the evidence – that in 29 cases university policies were violated, Cordova said. Most were violations committed by students, and the office sent the cases to the dean of students, who determined what discipline the students should face.
In nine cases, the office determined that a faculty member had violated a civil rights policy, Cordova said. And three staff members were found to have violated the policies last year, she said.
In matters such as those, OEO sends the case to the employee’s supervisors, including the provost if the person is a faculty member, who determine what the punishment should be.
From 2016 to 2018, the OEO concluded that 23 university employees violated university civil rights policies, according to the data report. Eight of the employees were faculty members, and 15 were part of the staff.
All those employees, and others who had complaints against them that were sustained, received letters from the OEO throughout the process.
Findings kept secret
The OEO leaves the discipline up to other university officials. And office officials said they won’t discuss particular cases. They did say they sent the letters of determination that the Journal requested to the university’s records custodian, who said attorneys for the university blocked their release.
“We keep our information confidential, and so those who don’t have a need to know won’t know,” said Angela Catena, the school’s Title IX coordinator. “So if it’s a student, they are not going to know that their (professor) was involved in our process.”
Catena and Cordova said the OEO keeps a database of people who have had complaints and sustained findings against them. And the results of OEO investigations are shared with supervisors and other university officials.
“If you are found to have violated a policy … you face some sort of internal penalty,” Cordova said in an interview. “We don’t do any sanctioning here. We are fact finders.”
Under previous presidents, the university didn’t take such a hard-line secretive approach when it came to OEO investigations as it has taken recently. Under former interim President Chaouki Abdallah, UNM posted to its website an entire OEO investigative report that named former football coach Bob Davie as a respondent. The Davie report is still on the university’s website.
The Journal on Oct. 30 filed a request for documents connected to OEO investigations that led to sustained policy violations against UNM faculty and staff. The university on Nov. 14 provided the Journal with a “preliminary letter of determination” and “final letter of determination” sent from OEO on one case: that of former UNM professor Cristobal Valencia, an anthropology professor who was fired in 2016.
The OEO investigation concluded that Valencia encountered a former student Downtown and later offered to drive her home. The former student said he instead took her to his house and propositioned her before she left and later filed the complaint, according to the OEO documents.
The university redacted sections of Valencia’s OEO letter, citing the Family Educational Rights and Privacy Act, but released much of the investigative findings.
As for the rest of the request, UNM said the request was “broad and burdensome” and would require more time.
Then the university appeared to reverse course on what it considered a public record. On Dec. 12, it sent the Journal a message that all the remaining documents were exempt from public disclosure, saying they were “matters of opinion in personnel files.”
And earlier this month, the university asked the Journal to destroy the records about Valencia that it had already provided, saying those records were released in error.
Brandon Toensing, the university records custodian, said the decision not to release the documents was made by the Office of University Counsel.
The university did release, in response to a different request, a document containing the names of 18 employees when asked for a list of employees who had violated sexual misconduct policies. The document is a list of sorts. But it is heavily redacted, so it’s not clear what exactly the list shows and what sort of violations the people on the list committed.