SB 39 opens door to discrimination

Keeping candidate names secret could bring back old days of back-room hiring deals

“My name is Juan Jose Peña,” the witness in Judge Teresa Baca’s courtroom said after taking the stand. Then, with commanding presence, the decorated Army veteran, activist and federal court interpreter delivered a riveting history lesson — one New Mexico lawmakers should take to heart as they debate a proposal to turn back the clock on 40 years of increased transparency in hiring for key positions in state and local government.

His family had come to New Mexico generations ago, Peña testified, but Hispanics and other minorities had consistently been discriminated against in hiring. Secrecy had cost minorities and women opportunities by allowing decision-makers to say there weren’t qualified minority candidates — while keeping evidence to the contrary confidential.

Peña was a witness in a 1998 case in which the Journal and the New Mexico Foundation for Open Government alleged the University of New Mexico had violated an earlier agreement to reveal candidates for the president’s job if they were interviewed by two or more search committee members. The university skirted that agreement by having one member do the interview, tape record it, and play it for the others.

“Juan Jose took over the courtroom, talking about what he had seen in his lifetime and why an open hiring process was important to minorities,” said attorney Martin Esquivel, who represented the Journal. “As a young Hispanic lawyer who had paid attention to issues like transparency, affirmative action and discrimination, it was perhaps the most compelling testimony I have ever heard.”

Peña, who at times headed the Hispanic Roundtable, the GI Forum and was a founding member of the Partido de la Raza Unida de Nuevo Mexico, died in 2018 at the age of 72. One colleague described him as “one of the most important civil rights leaders of our generation.”

Judge Baca ruled that UNM had violated the earlier agreement and shut down the search — a decision that led the Legislature to hastily approve a five-public-finalist requirement for university presidents. As a result of subsequent court decisions in New Mexico, applications and resumes for all other public jobs — from city attorney to county manager to 39 applicants for Albuquerque police chief — are public record under current law.

Senate Bill 39, sponsored by Sen. Bill Tallman, D-Albuquerque, a former city manager, would make most of that information secret, requiring that only three finalists for key jobs be made public.

To understand how that turns transparency on its head, a historical perspective is helpful.

At one time, public bodies could hire whoever they wanted in a secret process. No public information. No accountability. No pushback.

That began to change in the early 1980s when the Portales News-Tribune went to court seeking names of basketball coach applicants at Eastern New Mexico University. After a trial, Judge Bill Bonem ruled the university had to turn over names of candidates where references were checked and interviews scheduled. That totaled 19 names.

Scot Stinnett, who now publishes the De Baca County News and co-chaired a state open records task force, said testimony showed lots of people — from secretaries to candidates themselves — knew names and talked about them. “The only people who weren’t allowed to know what was going on were the people paying the bills, i.e., the public,” Stinnett said.

Then in 1989, the Journal, FOG and KOB-TV sued over the UNM presidential search. Journal attorney Jim Dines argued the university had failed to produce any empirical data that an open search resulted in a lack of qualified candidates. The case was resolved with the agreement that was the subject of the trial in which Peña testified almost 10 years later.

The litigation showed highly qualified Hispanic candidates had been passed over — sometimes not even getting an interview.

Dines’ law firm also represented newspaper clients in subsequent lawsuits challenging secret searches for Carlsbad city administrator and Farmington city manager. As the law stood at that time, the court weighed the competing interests of applicant pools and transparency. The newspapers prevailed in both cases.

In the Farmington case, the court awarded nearly $100,000 in attorney fees to the petitioner newspaper. “After several days of trial, there simply was no empirical data to support the city position that an open search would not provide a pool of qualified applicants,” Dines said.

The city of Farmington appealed the decision, which was upheld by the Court of Appeals. Dines noted the Inspection of Public Records Act has a presumption of openness — that citizens are entitled to the greatest possible amount of information about their government.

In a subsequent court case, the state Supreme Court essentially did away with the balancing test and limited IPRA exceptions to those adopted by the Legislature.

So how can transparency work? In 2008, the University of New Mexico hired the son of then-president David Schmidly to fill a newly created position that paid nearly $94,000 a year. The son, who worked as a marketing director at a private company, was deemed the best-qualified candidate for “associate director of sustainability.”

Except that a review of the 33 applications made public in response to a Journal IPRA request rendered that claim highly dubious. Some of the unsuccessful candidates, for example, were award-winning environmentalists, engineers and people with a track record working in sustainability at UNM. Schmidly’s son withdrew a week later.

At the end of the day, public transparency in hiring is a watchdog against discriminatory hiring practices, the good old boy system, favoritism and smoke-filled rooms. And even public officials who support this legislation are quick to say the many hires they have made under the current open process ARE qualified. So where’s the beef?

Turning back the clock 40 years would set New Mexico down the wrong path. If this misguided bill passes the Legislature, Gov. Michelle Lujan Grisham should veto it. Because you simply cannot favor transparency as a policy and support this.