Sunshine group needs to become insurgent

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Heath Haussamen

Heath Haussamen

I was shocked last week to learn that I could have shared the New Mexico Foundation for Open Government’s highest honor with Gov. Susana Martinez and Attorney General Gary King.

Each year, the nonprofit gives its Dixon Award to people who “serve as an inspiration” for their work to “pry open closed doors.” This year, FOG honored me with the award. I’ve spent much of my career shining light on officials – including King and Martinez – who have operated in the dark.

Heath Haussamen

Heath Haussamen

Despite the fact that King and Martinez have too often closed doors in the public’s face, rather than prying them open, FOG’s Board president, Terri Cole, proposed to fellow board members that the organization honor King and Martinez during its annual awards ceremony this year.

That FOG would consider such an action is ludicrous. This is an organization whose mission is helping people understand and exercise their rights under sunshine laws and the First Amendment.

While King, a Democrat, has served as attorney general, two judges have found his office in violation of the Inspection of Public Records Act for withholding records from former employees suing for discrimination.

Several high-ranking employees in Martinez’s administration, including the Republican governor herself, were secretly using private email accounts to conduct public business early in her tenure. And until recently she was keeping schedules of her events secret. Only after pressure from the public and journalists did Martinez order her administration to stop using private email and release schedules – and the schedules she has posted on her website are incomplete.

Both officials have also kept secret most of an audit of behavioral health providers used to justify freezing Medicaid funds, a move that has affected tens of thousands of New Mexicans. The organization I work for, New Mexico In Depth, and the Las Cruces Sun-News contend withholding the audit is illegal and are suing the Human Services Department (HSD) to try to win its release.

FOG is also suing King and HSD to try to win release of the audit.

NM doesn’t need conciliators

Meanwhile, behind the scenes at FOG, Cole suggested honoring King and Martinez for taking positive steps on the use of email.

Public pressure forced Martinez to order state employees to stop using private email for public business. King declared that government emails – including those sent by legislators – are public record if they relate to public business even if they’re sent using privately owned accounts.

Referring to Martinez, Cole – who is CEO of the Albuquerque Chamber of Commerce – wrote in an email to other FOG board members that the organization “should recognize excellence when it happens and not get too caught up in the decision making process it takes for high level people to ultimately do the right thing,” according to The Santa Fe New Mexican.

That’s outrageous reasoning coming from the woman who heads the state’s leading transparency group. FOG should be dedicated to fighting for an informed and empowered citizenry. It should be insurgent, not conciliatory. And yet, even as FOG prepared to sue both officials for the health audit, it looks like Cole hoped to throw them a bone to lessen the blow of the lawsuit.

Some members of FOG’s vast, 24-member board disagree with Cole. During the email discussion among board members, FOG Board treasurer Gregory P. Williams wrote that he didn’t like “the idea of honoring a governmental entity just for following the law, and for doing so only when forced to after more than a year of not following the law.”

But sometimes thinking like Cole’s wins the day. FOG was too quick to praise Martinez in mid-September for releasing calendars that include a whole lot of blank spaces where political and other events should be listed. In spite of that, Martinez can now cite FOG’s admiration to argue that she’s a shining beacon of transparency.

Additional changes needed

Given FOG’s history with Martinez, its board members should guard against aligning too closely with her. In July 2012, I publicly called for an end to lawyer Pat Rogers’ tenure on the FOG board – despite his history of fighting for government transparency – because his political activism and actions helped create the appearance that the Martinez administration’s controversial contract with the Downs at Albuquerque was an insider deal.

Emails between Rogers and others revealed that the Martinez administration had been using private email for public business. Under pressure, Rogers, the Republican National Committeeman for New Mexico, resigned from the FOG board.

FOG has made other positive changes recently. The board expanded its executive committee to decentralize power. It has added members who diversify the organization’s ideology and increased the number of journalists on the board. FOG’s lawsuit against the AG and HSD is also heartening.

But to maintain credibility as an advocate for transparency in the public interest, FOG needs to make additional changes.

For instance, Democrat Martin Esquivel, the president of the Albuquerque Public Schools Board of Education, serves on FOG’s board as vice president. An elected official should not sit on FOG’s board. Government officials shouldn’t oversee a group that holds government officials accountable.

In addition, a woman who seeks to appease politicians shouldn’t lead FOG’s board.

Since the 2007 death of Bob Johnson, FOG’s first director, the organization has had a revolving cast of executive directors. Johnson, a cantankerous and passionate defender of sunshine laws, wasn’t afraid to pick a fight with anyone. With another director search underway, let’s hope FOG hires someone who is as committed as Johnson to transparency, someone who is unafraid to challenge power.

And let’s hope FOG’s board empowers that person to be insurgent, rather than standing in his or her way. An organization with the focus and courage to pick necessary fights could play an instrumental role in bettering New Mexico by making its government more honest.

4 thoughts on “Sunshine group needs to become insurgent

  1. FWIW, here’s the job description for the NM FOG executive director from May 2013:

    NM FOG EXECUTIVE DIRECTOR — May 2013

    Desired Qualifications

    Strong writing skills (ED must write in a range of formats, from policy memos and legal salvos to press releases, newsletter articles and fundraising pitches.) Comfort with public speaking Experience with state-level sunshine law and processes (as a requester or access advocate)
    Strong organization skills & attention to detail Fundraising experience Demonstrated ability to collaborate across partisan divides Commitment to diplomacy and pragmatism
    Knowledge of/interest in digital transparency tools such as webcasting, data analysis, app development, Government 2.0, etc.

    Duties of Executive Director

    1. Membership
    a. Maintain membership roster and send invoices for annual dues
    b. Ensure personal communication with as many member/donors as possible

    2. Communication
    a. Publish FOG LIGHT newsletter
    b. Maintain website and social media with up-to-date information

    3. Public Relations
    a. Serve as FOG’s “public face” in the community b. Respond to media inquiries c. Keep members and media informed of FOG news and events

    4. Education/Outreach
    a. Field and respond to Hotline inquiries b. Participate in Attorney General “Sunshine Roadshow” seminars c. Coordinate and deliver additional trainings as needed

    5. Legislative Matters
    a. Work with the Board to develop and implement FOG’s legislative agenda b. Monitor legislation affecting access and provide testimony/advocacy as necessary c. Coordinate with allies including press & broadcasters, good-government groups, business
    interests, citizens’ groups, etc.

    6. Litigation
    a. Coordinate litigation activities with the Board and attorney panel
    b. Keep tabs on IPRA & OMA litigation in New Mexico, as much as possible

    7. Financial/Administrative
    a. Ensure that bills are paid and tax returns/nonprofit reports are filed in a timely manner b. Ensure that organization records are retained, organized, and available upon request c. Keep treasurer and the Board apprised of organization finances

    8. Fundraising
    a. Organize the annual Your Right to Know luncheon (formerly the Dixon Dinner)
    b. Coordinate fundraising appeals and membership drives with Board committees

    9. Board Management
    a. Provide administrative support for meetings of the Board and Board committees

  2. Full disclosure: Bob Johnson was a close family friend, I have been personally acquainted with Kent Walz for my entire life and with Pat Rogers for many years, along with others involved with – mentioned and unmentioned – in the above story. More importantly, I personally applied for the Executive Directorship of FOG (though I was never interviewed) prior to the recent abortive term of Terry Shleder.

    I can only thank you for this article, Heath. I have watched with first concern and then dismay at FOG’s aimlessness in recent years, and even under the stewardship of people I respected and even considered friends, my concerns have never been fully assuaged.

    I have always been aware that some of my concerns are potentially unfounded, and even unfair; Bob Johnson was, to me, the embodiment of the organization, and this sentiment is perhaps shared by most of the members of the FOG board itself. Therein lies one of many issues plaguing FOG; the board and the public have for six years been looking for another Bob Johnson. In the vacuum he left behind, the board was obliged to assume a greater burden of responsibility. To this end, they two potential paths to follow: either they could continue to allow their executive director broad latitude, primarily providing oversight to prevent over-zealousness or carelessness and supporting that individual with the varied expertise of the boards individual members; or they could gradually begin treating a revolving door of dissatisfied executive directors as more as employees and glorified office assistants, with no autonomy and a dependency on the board for the sort of day-to-day decisions that no body of two-dozen people – all of whom have other responsibilities – could ever make with any efficiency, thus causing a concentration of power in only a few members of that body.

    I fear it is obvious which road the board ended up taking.

    I acknowledge that the bleak scenario I present above sounds grossly unfair and overly generalized, and in some ways that is true; FOG’s board of directors is primarily composed of dedicated and fair-minded individuals who are truly passionate about the cause of a transparent government. However, in recent years the body has become unwieldy not with size but with increased responsibility, some of it self-assumed. Furthermore, as the executive directors they hire serve increasingly brief terms in the position, they seem to have become more concerned with the image of the organization than the efficacy of the organization.

    Witness, for example, the disproportionate reaction to criticisms by a small group of conservatives about Terry Schleder’s political views; Mr. Schleder is an avowed liberal, and has in the past been outspoken about his views. While it’s worth noting that most of the people who have held the job have been liberals, none of them – Schleder included – have publicly discussed their personal political views during their term as executive director, and none of them – again including Schleder – were a part of the apparatus of the Democratic Party. However, after the forced departure of Schleder – who was more vociferously criticized for his pre-FOG personal viewpoints than any of his predecessors – the board hired Erin Muffoletto as his interim replacement. Ms. Muffoletto is a Republican Party insider who has worked within the party and directly campaigned for multiple GOP candidates – including ones that FOG has directly opposed for open government violations. This is in contrast to Terry Schleder, who had extensive non-profit experience and just happened to express his personal political opinions before he ever held the job; with the exception of certain ultra-right-wing writers of limited influence, his personal opinions on non-transparency matters were of no importance to anyone. The board’s response to a very limited perception of political bias in one direction was to replace that person with someone with a definite bias in the opposite direction.

    I do not to criticize Ms. Muffoletto’s ability to fairly perform her temporary duties; I have no doubt she’s perfectly capable of doing so. This is a statement on the surrealism of the decision to hire her in the first place. However, Ms. Muffoletto’s political history is nothing when compared to certain members of the board itself; while I agree that Mr. Esquivel’s – and, for that matter Sen. Feldman’s – positions as elected officials present a conflict with their duties to FOG, and while the nature of Pat Rogers’ well-publicized departure also presented reasons for pause, it is another current member of the board who presents the greatest cause for concern about the board’s ability to view their duties dispassionately: Doug Turner. Mr. Turner, a political lobbyist and former GOP candidate for governor, recently demonstrated his rather interesting definition of transparency when he become the central figure in the secret financing of the dirtiest city council race in Albuquerque history. If Pat Roger’s peripheral involvement in the governor’s e-mail scandal forced his resignation, then it is something of a mystery that Doug Turner’s obvious disdain for transparency raises no eyebrows at all among his colleagues.

    There is yet another issue with the increasing lack of autonomy in the executive director’s position: matters are getting overlooked. FOG is becoming a one-issue-at-a-time organization. Currently their prime focus is the health audit (which arguably led to Mr. Schleder’s ouster), and no other issues are being discussed. They are no longer challenging the quiet legislative rule change that allows legislators to hide the people’s business from the people so long as they do so via e-mail, they are no longer challenging Secretary of State Duran to turn over documents into her long-ended and entirely secret year-and-a-half long investigation into alleged illegitimate voters, and aside from the suit against the Department of Health in which he is named as a co-defendant, they are no longer challenging Attorney General King over his lackluster enforcement of the Open Meetings Act and Inspection of Public Records Act. This is to say nothing of several other issues facing the state’s government and a myriad of local concerns statewide that fall under the umbrella of FOG’s mission.

    I fear it is time for a complete overhaul of the Foundation for Open Government’s operations. While it is too late for them to reverse and take the path not traveled , it is not too late for the board to contemplate a new direction entirely. To that end, I offer the following suggestions:

    -First, institute new standards of selection and conduct for board members; Individuals who are currently elected officials, officials of either party above the level of ward chair, or paid campaign consultants should not be selected for the board of directors. However, the board’s current diversity of journalists, lawyers, and business professionals should be maintained.

    -Second, expand the organization’s donor base; there are currently fewer than 150 individual donors to FOG. While this seems substantial, the majority of them contribute less than $50 annually, and it is a minuscule number when compared to the potential donors who never even hear front he organization. Every journalist, editor, business leader with any state dealings, lawyer, or professor of political science, journalism, public administration, law, communications, business, or economics is a potential donor.

    -Third, expand the organization’s public outreach and education activities. The overwhelming majority of citizens distrust the government and the media, but at the same time don’t realize the avenues available to them as citizens to participate in their government; New Mexico has some of the best open government laws in the country – primarily thanks to Bob Johnson and FOG – and it is FOG’s stated duty to make sure people know how to use them.

    -Fourth, return autonomy to the staff of FOG; the board of directors of a non-profit should exist to hire that staff, provide oversight and transparency into an organization that itself exists to provide transparency into the people’s government, and provide them with the benefit and support of their varying expertise. It is not their job to run the organization. Otherwise, there would be no practical point to hiring an executive director at all.

    -Finally and most radically, you will note above that I wrote “staff”, and not “executive director”. Hitherto, the staff of FOG has been the executive director, with perhaps (though rarely) an intern to assist. That model is no longer feasible, in part because of the turnover in executive directors and in part because the proper duties of FOG are too big for one person. At the very least, two co-executive directors are necessary, ones with complementary skills in lobbying, education, outreach, and fundraising; these necessary but varied duties of the office have generally been too diverse for the experiences and training of any one person. Not only does a two-person model allow the board to fulfill all the requirements of FOG’s duties without themselves attempting to perform them outside their purview, but in volatile political atmosphere’s like the current climate, it allows them to potentially defuse criticism of a biased hire by balancing not only the experiences but also the viewpoints of their selections. Alternatively (though more expensively and likely less efficiently), they could remodel the organization on larger non-profits with an executive director, a finance director, a political director, and other positions as needed.

    FOG has always been a force for the people of New Mexico, and while their efficacy has suffered in recent years due to aimlessness, short-sightedness, and a series of less-than-complementary public relations incidents, they still are. What is necessary is renewed focus and determination coupled with a clearer vision than they have allowed themselves in recent years.

    • Juan Carlos, you’ve hit so many nails on their heads here with your observations and suggested paths forward. These were exactly what the Executive Committee said they hired me to do but, clearly, they lied. It’s a shame that so many smart people can be so out of touch with basic program development, but that’s not coincidental as I had initially believed. I wish the few sane voices on the Board much luck in changing things, since FOG’s new ED job description calls for a staffer who is nothing more than an Admin Assistant.

  3. Pretty sad, even scary to think that a non-profit group, dedicated to holding government accountable, now has accumulated so many apologists for lack of transparency. You’d think they were worried that the Sunshine might beam down on them.

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