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Editorial: House should join Senate, repeal state settlement gag orders

The state Senate’s unanimous support last week of legislation that would make the state’s out-of-court settlements more transparent is an encouraging step forward for New Mexicans who want to know how their tax dollars are being spent, and the state House must not let this good-government bill die before the end of the legislative session next week.

For far too long, out-of-court settlements between plaintiffs and the state General Services Department’s Risk Management Division have been subject to a gag order of at least six months. The out-of-court settlements contain allegations against public officials – and/or the agencies they worked for – of workplace discrimination, sexual harassment, retaliation, personal injury, wrongful death and other claims.

One such example was Alisha Tafoya Lucero. About a month after her appointment as secretary of the New Mexico Corrections Department in June 2019, Tafoya Lucero signed a $195,000 settlement with the state to resolve a 2013 lawsuit she had filed against the Corrections Department.

Tafoya Lucero, a deputy warden seven years ago, said she was paid far less than a male colleague with the same title and accused the Corrections Department of violating state law requiring fair pay for women. The deal between a Cabinet secretary and the department she runs wasn’t revealed until last week, after the expiration of a six-month confidentiality period imposed by the current state law.

Taxpayers should have known last summer Tafoya Lucero sued and received a $195,000 settlement, in addition to her $156,000 current annual salary. There was no reason for six months of secrecy after the ink on her check dried.

When the public is footing the bill for attorneys to represent public officials and state agencies accused of wrongdoing, and are also on the hook for court judgments and out-of-court settlements, the payouts for lawsuits and tort claims should be made public in a timely manner, however vigorously disputed by those being sued. (That, after all, is the case for city and county agencies.)

Senate Bill 64, approved by the Senate on a 38-0 vote Saturday, accomplishes that. The bill would amend the state law that requires settlement records be kept confidential for at least 180 days, instead requiring the state to publicly disclose legal settlements when they’re signed by the parties involved or upon a final judgment, whichever comes first.

Under current state law, settlements can be suppressed from the public eye for even longer than the six-month confidentiality period. The Journal has reported many settlements aren’t revealed after six months due to loopholes regarding when the six-month clock starts. This good-government bill addresses those issues and also removes an existing penalty for those who break confidentiality provisions.

Gov. Michelle Lujan Grisham took the state a big step forward last summer when GSD started publicly listing settlement agreements once the 180-day clock ended. Documents about out-of-court settlements long believed out of reach to anyone without an inside source were suddenly popping up in email inboxes. In September, about 70 settlements totaling more than $8.5 million were published on the state’s Sunshine Portal.

And this year, Lujan Grisham opted against enforcing a provision in at least two settlements — authorized at the end of her predecessor’s term — aimed at extending the secrecy period in those cases for several years, not the typical 180 days.

Republican Sen. Sander Rue of Albuquerque, one of the bill’s sponsors, has been an outspoken supporter and is correct when he says taxpayers have the right to know how their tax dollars are being spent.

Settlements should absolutely be made public without conditions. Unfortunately, Senate Bill 64 does not mandate the public posting of settlements. It should be rectified at some point to reflect Lujan Grisham’s more transparent and accountable policy.

But, for now, House representatives should join their Senate colleagues and pass this legislation before the 30-day session ends Feb. 20. It will be a big step forward for New Mexicans who deserve – and pay for – open government.

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.