New Mexico ethics board issues advisory opinion after AG's office high payment to outside lawyers - Associated Press
New Mexico's ethics board has issued an advisory opinion on contracts entered into on a contingency basis in the wake of a report about how much the state attorney general's office paid outside lawyers.
The Santa Fe New Mexican reported Thursday that the state AG's office paid nearly three times as much as other states to negotiate opioid settlements.
The newspaper said the 11-page advisory opinion by the New Mexico State Ethics Commission concluded that the state's procurement code generally applies to a state agency's or local public body's procurement of contingent-fee contracts for legal services.
A contingent-fee agreement occurs when a law firm does not bill or expect payment until and unless the contingency is achieved, according to the advisory opinion.
Lauren Rodriguez, a spokesperson for the New Mexico Attorney General's Office, said in a statement that the contingency fee allocated as a part of the recent settlement with Walgreens "was paid pursuant to a contract that contained no limit on fees" and done before Attorney General Raúl Torrez took office.
She also said Torrez has instituted "a new policy that sets strict limits on contingency fee cases moving forward and will follow the practice of other state attorneys general in relying on in-house attorneys as local counsel whenever possible."
Rodriguez added that the AG's office didn't receive the commission's advisory opinion until Tuesday and still is reviewing the rationale and analysis.
Millions in legal settlements now disclosed by the state - Danielle Prokop, Source New Mexico
In 2023 New Mexico paid a $3.6 million settlement to people representing the two surviving siblings of Ariza Barreras, an 11-month-old who died in the care of a state foster parent in January 2018.
A wrongful death civil lawsuit filed in U.S. District Court alleged that employees for the state’s Children, Youth and Families Department failed to vet the foster parents and respite caretakers, violating the civil rights of all three children.
“Ariza died after being placed with state-licensed foster parents who never should have been authorized to care for children in the State’s custody and who CYFD failed properly to monitor,” the lawsuit stated.
Source NM asked the agency if the employees named in the civil lawsuit were still employed at the agency. Jessica Preston, the acting spokesperson for the agency, said that one social worker resigned. Three others are all still employed at the agency. Preston could not confirm the status of another.
The settlement was reached early in the year on Jan. 22. That information was only just recently published to the Sunshine Portal, after questions from transparency groups and a Legislative Finance Committee review.
RISK MANAGEMENT DIVISION CHANGES TACK
The Risk Management Division is part of New Mexico’s General Services Department and manages the state’s liability insurance. The division also pays out any settlements — both voluntary or court-ordered — in cases alleging misconduct or harm from state agencies.
Settlements can range from repairing property damage, to multimillion-dollar civil rights claims, such as sexual misconduct, whistleblower lawsuits and others. Agencies don’t directly pay for settlements, rather the money comes from the Risk Management Division’s budget. When court cases are resolved with a settlement, recipients are required to drop any legal action against the state.
Rod Crawley, the interim spokesperson for the General Services Department, told Source NM in an email Wednesday that the department updated the portal to include settlements involving children and disabled adults on Friday, Nov. 3.
The portal now has a message in the top banner saying it’s been updated to include more settlements. Source NM previously reported on outdated contact information on the Sunshine Portal.
The change, which was authorized by Cabinet Secretary Robert Doucette, came after the performance review issued by the Legislative Finance Committee in September. That report found that the New Mexico Risk Management Division “routinely omits” settlements involving minors and disabled people from public view.
“Part of the recommendation on the audit was that all cases be published to the Sunshine Portal,” Crawley said. “In keeping with this administration’s commitment to transparency, the decision was made to publish all settlements to the Sunshine Portal.”
On Oct. 31, the nonprofit New Mexico Foundation for Open Government sent a letter to Gov. Michelle Lujan Grisham, warning that the General Services Department was potentially violating state transparency laws.
The organization’s executive director, Melanie Majors, cited Doucette’s comments to lawmakers from September, when he said the agency does not publish certain settlements if there is “concern for the safety of children or the disabled.”
“No New Mexico statute allows for this exclusion,” Majors wrote, “and in most cases, lawsuits filed against the state do not reveal the names of the children or disabled adults allegedly harmed by the state.”
WHAT WAS ADDED TO THE SUNSHINE PORTAL?
Source NM identified at least 31 settlements with minors added to the portal since Nov. 3. That included 13 settlements that were signed in 2023, eight from 2022, nine settlements from 2021 and two added from 2020. Totaled, that’s more than $10.9 million the state paid in cases involving children.
Several of the settlements were from a series of civil lawsuits following the deadly crash between a semi-truck and a Greyhound bus on Interstate 40 near Thoreau. Eight people died, and another 25 were injured, including three young children.
Lawsuits named the New Mexico Department of Transportation as a defendant, alleging the state failed to install barriers in the median to prevent cross-over crashes. This was “despite knowing of the substantial risk from cross-over crashes and having installed a barrier in the median for several miles just west of the crash site,” one of the lawsuits stated.
Other settlements included medical malpractice lawsuits against the University of New Mexico Hospital. The $3.6 million settlement paid on behalf of the state’s Children, Youth and Families Department for the Barreras case in 2023 was, by far, the largest claim.
IS THAT EVERYTHING?
In their September report, the Legislative Finance Committee listed three examples of 2022 settlements that were not released to lawmakers or the public in the portal, or in annual reports.
The first was a $1.5 million foster care abuse case, which was still the only one listed in the Sunshine Portal as of Tuesday after Source NM sent multiple inquiries over three days about the missing settlements.
As of 3:30 p.m. on Wednesday, the General Services department had added all three.
The General Services Department has still not answered questions about why they all weren’t included in the Nov. 3 update to the portal.
In response to Source NM’s question on whether all settlements are now published, and if not, how many remain, Crawley wrote: “The Sunshine Portal was updated with all cases on November 3, 2023.”
Vasquez touts benefits of Southline transmission project - Hannah Grover, New Mexico Political Report
A transmission project that would move electricity from Hidalgo County to Arizona was recently selected for the U.S. Department of Energy’s Transmission Facilitation Program.
The Southline Transmission Project was one of three that entered into contract negotiations with the DOE in late October. This program includes the DOE agreeing to purchase a percentage of the total proposed capacity on the line, which decreases risk for developers.
U.S. Rep. Gabe Vasquez, a New Mexico Democrat representing the second congressional district, joined his Republican colleague, Rep. Juan Ciscomani of Arizona, on Wednesday to discuss the project benefits, which include job creation and economic development.
The project is anticipated to lower electricity bills for customers in a region with high levels of poverty by allowing clean energy from New Mexico to reach areas currently served by fossil fuels.
It is expected to create thousands of jobs and 900 union jobs, the congressmen highlighted during the press conference.
The developers have also committed to investing $4 million into local communities through donations to nonprofits, sponsorships and partnerships.
The Southline project is the first phase of a larger proposal and will stretch 175 miles. The line will transmit 748 megawatts of electricity, primarily from wind and solar sources.
Both Vasquez and Ciscomani have advocated for the project, including urging the DOE to select it for the Transmission Facilitation Program.
Ciscomani described the project as a game changer for energy in the southwest and said that it will “be transformative in accessing clean and reliable energy in our entire region.”
Vasquez spoke about the importance of bipartisan efforts to make energy projects like Southline a success.
“We don’t have a reliable grid if we don’t have transmission capacity,” he said.
At the same time, some New Mexicans are concerned about transmission lines that prioritize exporting electricity to other states when there are communities within the state that lack electricity.
Vasquez said there are other transmission projects that are focused on providing New Mexicans with electricity.
He said that while it is important to provide reliable electricity to New Mexicans, exporting power is also important.
“Renewable energy has to meet the demands of not just our state, but also our country,” he said.
Exporting energy, he said, can bring revenue into the state while also creating jobs and helping the economy.
New Mexico does not have enough legal public defenders - Austin Fisher, Source New Mexico
It would take hundreds of additional public defenders to handle all of the cases coming through the state’s criminal legal system, based on a study of the office’s workloads.
The Law Offices of the Public Defender on Wednesday afternoon asked the Legislative Finance Committee for a 20% bigger budget in the upcoming fiscal year, to pay for 30 more attorneys to represent New Mexicans accused of crimes throughout the state.
Bennet Baur represents New Mexico’s public defenders and told lawmakers last year there are too many clients and nowhere near enough attorneys to represent them. Without more funding, Bauer told lawmakers Wednesday, people accused of crimes are losing out on their constitutional rights to adequate defense and due process.
“Our request is assertive in a way that’s necessary because the need is so great,” he said. “Because we represent members of the community who don’t have their own resources and face police, prosecution and those kinds of resources.”
BY THE NUMBERS
The New Mexico Law Offices of the Public Defender’s annual budget totals $71.7 million. The public defender’s office is asking state lawmakers to increase its budget in the upcoming fiscal year by $14.9 million, to a total of $86.6 million. This includes:
· $6.2 million to pay for 30 more attorneys and 30 core staff, investigators and social workers
· $4.9 million for contract attorneys and complex case costs (like conspiracy cases involving multiple defendants)
· $2.1 million for pay equity and parity with prosecutors and other state attorneys
· $1.7 for other trial and operational needs
As things stand, New Mexico has 349 public defenders. This includes staff attorneys who are state employees and contract attorneys who take on cases piecemeal.
Lawmakers did boost the budget request from the public defender’s office by $6.3 million last year, which has been used to give raises to defense attorneys across New Mexico, and hire eight new lawyers in Carlsbad, Hobbs, Gallup, Las Cruces, Aztec and Ruidoso.
It is still not enough.
MORE ARRESTS, MORE CASES
Thomas Joseph Clear III, chair of the state’s Public Defender Commission, said New Mexico’s criminal legal system is stressed due to increased policing and more arrests on warrants.
“The stresses of having all those new cases come upon our clients and our attorneys to represent them,” Clear said.
The number of cases per year has increased by more than 19% since 2020, according to the public defender’s office. The office projects that by the end of this fiscal year, the number of cases will increase 11% over last year.
Baur said case assignments have surpassed the levels recorded prior to 2020. He said there have been more serious and time-consuming felony cases this year than in the last six years.
Since July 1, 2023 there have been 61 murder cases assigned to contractors, not just staff attorneys, Baur said.
To actually handle all of the cases they’re assigned with both in-house and contract attorneys, the public defender’s office said in its budget proposal it needs at least 897 attorneys. A study by the American Bar Association from January 2022, when they had fewer cases, showed they needed an additional 602 attorneys.
As of Nov. 13, the office also had a 14% vacancy rate overall, with an 18% vacancy rate among attorneys and 10% among core staff. Vacancy rates do not account for need based on caseload but rather simply describe how many jobs are paid for but not filled by anyone right now.
Rural representation
Rural parts of New Mexico remain incredibly difficult to staff, according to the office’s presentation. For example, public defenders in the Fifth Judicial District in the state’s southeast corner have been working at a 52% vacancy rate for the last nine months.
As of September, the public deender’s office in Roswell was down six of nine attorneys, Hobbs was down three of eight, and Carlsbad was down three of six, according to the presentation.
Clear said the judges in Roswell asked the office to send attorneys from Albuquerque because there were not enough public defenders for clients. In Roswell and the surrounding Chaves County, Clear said in 73 pending felony drug cases, local prosecutors have not offered the defendants diversion options and are instead going to trial, resulting in “an incredible amount of work.”
Rep. Jack Chatfield (R-Mosquero) asked how much contract public defenders make for various cases, depending on the accusations against a person.
Deputy Chief of Contract Counsel Randy Chavez said contract attorneys are paid $6,500 for a murder case, $700 for an armed robbery case, $590 for a felony car theft case and $180 for a misdemeanor retail theft case.
Clear pointed out these figures are the total compensation for a contractor across an entire case, not an hourly rate.
Baur said with enough resources, state public defenders can not only provide New Mexicans legal representation but also what is called “holistic representation,” meaning hooking people up with services through social workers, investigators and paralegals.
“In many cases, we are the best agency to do this because we — when we have time — develop relationships with people, and can make recommendations to the court and to the prosecution about how best to do this so that they are successful in the long term,” Baur said.
SUB: BY THE NUMBERS
The New Mexico Law Offices of the Public Defender’s annual budget totals $71.7 million. The public defender’s office is asking state lawmakers to increase its budget in the upcoming fiscal year by $14.9 million, to a total of $86.6 million. This includes:
- $6.2 million to pay for 30 more attorneys and 30 core staff, investigators and social workers
- $4.9 million for contract attorneys and complex case costs (like conspiracy cases involving multiple defendants)
- $2.1 million for pay equity and parity with prosecutors and other state attorneys
- $1.7 for other trial and operational needs
Texas wants the power to arrest and order migrants to leave the US. Can it do that? - By Paul J. Weber Associated Press
For two years, Texas has pushed boundaries on the U.S.-Mexico border: Busing migrants across America, jailing thousands for trespass and stringing razor wire along the Rio Grande.
In a new challenge to the federal government's authority over immigration, Texas lawmakers on Tuesday night gave final approval to a bill that would allow police to arrest migrants who enter the country illegally and let local judges order them to leave the country.
The bill, which Republican Gov. Greg Abbott is expected to sign, would become one of the nation's strictest immigration laws if allowed to take effect. On Wednesday, Mexico's government criticized the measure, warning it would result in family separations and racial profiling.
In a rare moment of GOP dissension, one powerful Republican state senator opposed the bill, saying it goes too far. Emotions also ran high in the Texas House, where Democrats spent hours condemning the measure but failed to weaken it before it passed along party lines 83-61. It cleared the Texas Senate last week.
It is unclear when Abbott will sign the bill. He announced Wednesday that he will return to the border over the weekend with former President Donald Trump.
Here's a look at the proposal:
WHAT WOULD THE NEW LAW DO?
Texas arresting migrants is not new. Within six months of President Joe Biden taking office, Texas troopers began making agreements with border landowners and arresting migrants who crossed their properties for trespassing.
But the new law would empower all police in Texas — including officers hundreds of miles (kilometers) from the border — to arrest migrants suspected of illegally entering the country. The offense would be a misdemeanor and a judge could order the defendant to leave the country.
Critics say the law could lead to racial profiling or the wrongful arrest of U.S. citizens and immigrants who are in the country legally. Democrats also said it would make immigrant crime victims afraid to contact police.
One of the Republicans carrying the bill, state Rep. David Spiller, said the law would not apply to residents who have been in the country for more than two years. He defended the bill as having sufficient guardrails and said it would mostly be applied near the border.
"This is not, 'Round up everyone who is here illegally and ship them back to Mexico,'" Spiller told a legislative committee last week.
Steven McCraw, the director of the Texas Department of Public Safety, told lawmakers that it would be "almost impossible" for the law to be enforced in any county that was not directly along Texas' 1,200-mile (1,900-kilometer) border with Mexico, because an officer would need evidence that a migrant had crossed illegally.
"It'd be a stretch," McCraw said.
TESTING IMMIGRATION AUTHORITY
Legal experts and immigrant rights groups have railed against the Texas bill as a clear conflict with the U.S. government's authority to regulate immigration.
"Since when does a state deport individuals?" Democratic state Rep. Victoria Neave Criado said. "That's not a power that states have. That's a power that the federal government has."
She and other Democrats have accused Texas Republicans of wanting the U.S. Supreme Court's new conservative majority to revisit a 2012 ruling that struck down key provisions of an Arizona immigration law. At the time, Justice Anthony Kennedy said Arizona may have "understandable frustrations" with immigrants who are in the country illegally but can't pursue policies that "undermine federal law."
Mexico's government, which has protested other actions by Texas along the border, also raised concerns.
"The Mexican government categorically rejects any measure that would allow local or state authorities to detain or deport Mexicans or other nationalities to Mexican soil," Mexico's foreign relations department said in a statement.
Spiller has denied wanting to challenge the Arizona decision.
State Sen. Brian Birdwell, an Army veteran who was injured at the Pentagon during the Sept. 11, 2001, attacks, was the lone Republican to vote no to the proposal. He said the law would usurp powers given to the federal government in a rare moment of GOP fractures in the Texas Senate, where Republicans typically vote in lockstep.
"For the short-term messaging gain between our two chambers during this election season, we are setting a terrible precedent for the future by invalidating our obedience and faithfulness to our Constitution," Birdwell said.
TEXAS' MASSIVE BORDER OPERATION
In his third term as Texas governor, Abbott has made increasingly aggressive measures on the Texas-Mexico border a centerpiece of his administration.
In addition to giving police new arrest powers, Texas Republicans are also on track to approve $1.5 billion to continue building more border wall. Texas has also gone to court in recent months to keep a floating barrier on the Rio Grande and to prevent Border Patrol agents from cutting razor wire.
The efforts have not halted crossings, which have remained unusually high. Illegal crossings did fall in October, a rare piece of welcome news for a White House that has been criticized by the right and left for its immigration policies.