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Capital outlay documents raise questions of open records act

State legislators are apparently not legally required to reveal details of how they spend taxpayers’ money.

While investigating a story about “A Park Above” — a planned park for Rio Rancho that would provide equipment that would allow disabled children and adults to play alongside their non-disabled peers — the Observer discovered a legal exemption to the New Mexico Inspection of Public Records Act for legislators.

The original story was about how several councilors from the city of Rio Rancho opposed spending capital outlay funds on the park. The park became something of a hot-button issue when Rio Rancho Mayor Tom Swisstack made a push for funding during the legislative session. He was later censured by the city council.

It turns out, despite the controversy, the park project still received capital outlay funding, to the tune of about $483,000.

The governor’s office contributed $300,000 of that funding, and the rest of the funding was requested by legislators.

In the end, the only legislator who funded the project was Rep. Tom Anderson, R-Albuquerque, who represents northwest Albuquerque and Bernalillo County. His district stops at the Sandoval County line, but it does include a small portion of Rio Rancho that dips into Bernalillo County.

Anderson said that at the time he sent in his request for funding, he didn’t know about the controversy over the park. He may have thrown in about $183,000. But there is no publicly available paper trail to confirm that.

The documents that are available are lists of the projects legislators may have been interested in funding and a list of the projects that were ultimately funded and how much money those projects are allotted. Anyone interested in the specifics of how each legislator spent his or her money is at the mercy of that legislator, it turns out.

The legislators dictate how the money is spent by sending in a request to the Legislative Council Service. Those requests are sealed from public view thanks to a law from 1951 that says:

“Neither the director nor any employee of the council service shall reveal to any person outside of the service the contents or nature of any request or statement for service, except with the consent of the person making such request or statement.”

John Yeager, a representative with the New Mexico Legislative Council Service, explained that the law means the council service can’t divulge the information without the consent of the legislators.

“It’s a long-standing law in New Mexico and other states,” he said.

When asked for the justification for the law, he said in general it allows legislators to explore ideas and make requests of the council service without having those requests disclosed to the public. Part of the justification for keeping those records private is so legislators can request that the staff look into an idea without having that idea or the request become part of the public record.

But capital outlay requests don’t explore an idea; they directly result in how taxpayer dollars are spent. Each year, legislators are allocated severance tax money from the oil and gas industry and a few other state funds. This year each senator was given $1.2 million and each representative had $714,000 to dole out to projects in their own district and throughout the state.

When asked to explain how the justification holds up in the case of an elected official deciding how tax money is spent, Yeager refused further explanation.

Rio Rancho Councilor Lonnie Clayton said the lack of a public record is something he would like to have explained to him.

“Taxpayers want to know what (the legislators) are doing and who they’re doing it for,” he said. “I’d like to know. As a simple taxpayer, I’d like to know.”

The Observer requested that information from senators John Ryan, R-Albuquerque; Benny Shendo, D-Jemez Pueblo; Craig Brandt, R-Rio Rancho; and John Sapien, D-Corrales. Requests for information were also made of representatives Paul Pacheco, R-Albuquerque; Tim Lewis, R-Rio Rancho; Jason Harper, R-Rio Rancho; and Jane Powdrell-Culbert, R-Corrales.

Phone calls and other attempts at obtaining a comment were also made.

Brandt, Pacheco, Lewis, Ryan and Harper said they would provide detailed information on where they had requested their money to be spent. According to what they presented, none of them funded “A Park Above.”

Powdrell-Culbert was contacted and refused to give out the information. She said she’d presented the information elsewhere and didn’t want to give the Observer the opportunity to interpret the information or lose control of the message she was attempting to convey. Shendo and Sapien did not return phone calls or emails.

Foundation for Open Government Executive Director Gwenyth Doland said the process should be more transparent.

“New Mexicans should be able to find out, quickly and easily, which projects their elected officials have chosen to fund and at what level,” she said.

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