Wednesday, April 06, 2011
Women's Pay Lawsuit Bites Attorney General
By Thomas J. Cole
Journal Staff Writer
The issue of women's pay in the state Attorney General's Office isn't a new one. I wrote in 1993 about complaints from female lawyers under then-Attorney General Tom Udall.
Udall denied a problem back then, just as Attorney General Gary King does today.
Udall, now a U.S. senator, was able to keep the dispute from getting ugly in public; King hasn't been able to do that and has gotten a black eye in the process.
Three female attorneys in King's office are suing him in federal court, alleging they are paid less than similarly situated male lawyers.
Last month, a judge ruled King violated New Mexico's law on public access to government documents by refusing to turn over salary and other office employee information to a lawyer for the women.
The ruling made headlines because the AG's Office is supposed to be an enforcer of the Inspection of Public Records Act, and it trains government agencies on how to comply with the law.
King's attorneys in the lawsuit had accused the women's lawyer of trying to use the state public-records law to obtain information that he couldn't get through the federal lawsuit.
The lawsuit against King was filed a year ago by Lesley Lowe, Mary Smith and Melanie Carver, who all graduated from law school in the mid-1980s. Lowe has been with the AG's Office since 1987, Smith since 1999 and Carver since 2007.
Prior to the lawsuit — in September 2008 — the women met with King to discuss their concerns and present a report showing they were paid less than several less experienced male attorneys. The report also alleged broader gender-based pay inequity in the office.
King dismissed the study as flawed and self-serving, denied there was pay inequity but still gave each of the women a 5 percent pay increase, according to written statements he has made as part of the lawsuit.
King said in one statement that his lawyers have different skills and that length of service in the office and time since graduation from law school are not the most important factors in determining job placement.
"Ms. Smith, Ms. Lowe and Ms. Carver are attorneys of average capabilities," the attorney general said. He later added:
"In my opinion, it appears that envy of the pay scales of other attorneys in the AGO who have greater and/or more specialized skills have caused the complainants to try to shortcut the process of obtaining salary increases by substituting a baseless claim of discrimination for the most certain way to advance in my administration, that is to work hard, be competent, and take the opportunities we offer to improve skills."
That theme is repeated in King's denial of the allegations in the women's lawsuit.
Pay in the AG's Office takes into account legal experience, competence, management duties, work complexity and experience in specific areas, such as prosecution, international law and complex litigation, according to King's attorneys.
King, who is being sued both individually and in his capacity as attorney general, has sought dismissal of many of the claims in the lawsuit based on immunity protections for government officials.
Last May, a federal magistrate ordered that discovery in the lawsuit be halted until some immunity issues were resolved. (Discovery is the formal way that parties in a lawsuit obtain information from each other prior to trial.)
While discovery was stayed, Daniel Faber, the attorney for the women suing King, filed the public-records request with the AG's Office for the salary and other office employee information.
The compliance guide for the Inspection of Public Records Act — prepared by the AG's Office — says a public agency can't refuse to turn over records just because the requester is involved in a lawsuit against the agency or has asked for the same records in discovery.
"The availability of records under the Act does not affect a litigant's discovery rights or vice versa," the guide says.
Still, King's attorneys sought to have Faber, the women's lawyer, sanctioned by a federal magistrate, arguing he was trying to get around the halt in discovery.
King's lawyers also noted that the compliance guide says a public agency may petition a court if it believes another party is using the public-records law to harass the agency or for other improper purposes.
Federal Magistrate Lorenzo Garcia sided with the AG and ordered Faber to make a $150 charitable donation.
Faber is now trying to get the sanctions overturned, citing the ruling in March by state District Judge Beatrice Brickhouse that King violated the public-records act and must turn over the information sought by Faber.
In language similar to that found in the AG's compliance guide for the Inspection of Public Records Act, Brickhouse found the law provides a legal right independent of federal rules of discovery.
Faber says he was exercising his rights under the public-records law and that it is unjust for him to be sanctioned for doing so.
The women's lawsuit is still pending, but discovery has again been halted because of immunity claims by King. The AG also has asked Brickhouse to reconsider her ruling that King violated the public-records law.
UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at email@example.com or (505) 992-6280 in Santa Fe. Go to www.abqjournal.com/letters/new to submit a letter to the editor.