Martinez’s chief of staff denies discriminating against ‘Reporter’

Ruling in records fight between Governor’s Office, weekly not expected for several weeks

Gov. Susana Martinez’s chief of staff testified Friday that he never issued any order, either written or verbal, that the governor’s spokesmen discriminate against the Santa Fe Reporter, despite several documented instances in which Martinez’s press office failed to respond to requests by the weekly newspaper’s journalists for comments or public information.

Keith Gardner, who has held the top position in the administration since Martinez became governor in 2011, was one of several current and past Martinez officials to testify in a three-day bench trial over allegations that the administration froze out the newspaper in retaliation for critical coverage.

The Reporter, in a civil suit filed in 2013, claims Martinez and her staff stopped responding to requests for comment and public records after the paper published online a large cache of emails in which officials, including Gardner, discussed public business using private email accounts.

The suit also claims the administration violated the state’s open-records law by illegally withholding public documents requested by reporters.

State District Judge Sarah Singleton’s verdict in the case could be a landmark decision if she rules that a government communications office can’t discriminate against a reporter or news organization on the basis of the reporter’s viewpoint.

Such a decision could strengthen the state’s Inspection of Public Records Act.

But the ruling won’t come for at least several weeks. After transcripts of all the testimony are available, lawyers on both sides will have three weeks to submit written closing arguments. After that, both sides will have another two weeks to write rebuttals.

Some of the public records requests cited in the Reporter’s suit involve emails on private accounts routinely used by Martinez’s staff during the first 18 months of her administration.

In a surreptitiously recorded, profanity-laced conversation with an erstwhile friend in October 2012 — and later released to reporters — Gardner said, “I never email on my state email anything that can come back to bite my ass. It is all done offline. I never … use my state email because it is all done on different stuff ’cause I don’t want to go to court and jail.”

The Reporter’s lawyer, Daniel Yohalem, read from a transcript of the recording, arguing that it showed Gardner wanted to hide records from the public.

Gardner said those words were taken “out of context.”

Questioned by Martinez’s lawyer, Paul Kennedy, Gardner said he and the rest of the governor’s staff faithfully comply with an executive order forbidding the use of private emails for official business.

This order was issued in June 2012, several days after the administration’s extensive use of private emails came to light in The New Mexican and other news outlets.

Not brought up at the trial was an affidavit by a former Martinez Cabinet secretary who claimed five years ago that Gardner had instructed officials to communicate by private emails.

As the email controversy was brewing in June 2012, former corrections secretary Lupe Martinez (no relation to the governor) released a sworn affidavit saying Gardner, at a Cabinet meeting sometime in 2011, had told department secretaries to, “whenever possible, use our private emails when communicating, because by doing such would prevent them from being discovered through public records requests.”

A spokesman for the governor at the time hotly denied the former secretary’s accusation and suggested it was political, saying Lupe Martinez’s boyfriend at the time was involved in a wrongful termination suit against the state and was being represented by lawyer Sam Bregman, shortly before Bregman became the state Democratic Party chairman.

Contact Steve Terrell at 505-9863037 or sterrell@sfnewmexican.com. Read his political blog at www.santafenewmexican.com/ news/blogs/politics.