Tuesday, August 19, 2014

Is "scanning" a hard copy of a public record, really "creating a new record"?

I have made a Public Records Request of the APS under the auspices of the NM IPRA.

I have asked that copies of those public records be emailed to me per the resolution of a previous complaint over their refusal cooperate with my absolutely justified reticence to present myself at 6400 Uptown Blvd.

I have asked that they be emailed to me as opposed to requiring me to show up anywhere near APS' Executive Director of Communications and slanderer Monica Armenta.

APS Director of Communications Rigo Chavez has the records I have requested, in his hands.

They are records of the contracts that have been let in the cost is no object legal defense against the complaints I filed against them in federal court.

Chavez responds; not only does he "not have a scanner", even if he did, he couldn't be required by the law to use it to "create a new record".

So why won't Rigo Chavez extend to the people,
the simple courtesy of having someone scan the records?
It would be faster and cheaper than time he spent explaining that he had no intention to scan and email records.

In the first place, don't blame Rigo Chavez.
He does what he's told or, he "does" somewhere else.

He and everyone else working at 6400 Uptown Blvd,
exist in what independent examiners have repeatedly identified as a culture of fear of retaliation against whistleblowers.

Blame whomever who told Chavez to obfuscate the production, and to draw me into the vicinity of Monica Armenta so she can invent more crap.

Blame whomever led Rigo Chavez to believe the best thing for him to do would be to respond to my request for public records, by writing;

With regard to your request for “contracts for services related to Case 1:12-cv-01137 (MacQuigg v. APS et al)., including by not limited to contracts for legal services,” to be provided to you via e-mail, I do not have electronic copies, so I cannot provide them to you via e-mail. And, under the NM Inspection of Public Records Act does not require public bodies to create documents that do not exist in response to requests: “(NMSA 14-2-8) Procedure for Requesting Records, B. Nothing in the Inspection of Public Records Act shall be construed to require a public body to create a public record.” Further, according to the “New Mexico Inspection of Public Records Act Compliance Guide (Seventh Edition – 2012 (Page 32))” put out by the New Mexico Attorney General’s Office, “The right to inspect applies to any nonexempt public record that exists at the time of the request. A records custodian or public body is not required to compile information from the public body’s records or otherwise create a new public record in response to a request.”
Just because it's legal,
just because you can get away with it,
doesn't make it right.

photo Mark Bralley

Non partisan public forum proposed; open and honest public discussion in anticipation of the next APS School Board election.

There, I proposed it.

Now all we need is the time, the day and the place.

And professional facilitation, wikilink;

"It is important to note that the tasks and responsibilities listed below do not need to be covered by a single facilitator. The role of the facilitator is often shared by multiple people, for instance one person may arrange the logistics before the meeting, another person may keep time and monitor the agenda during the meeting, and a third person may be responsible for recording agreements.

Prior to a meeting, facilitators:
  • research the meeting
  • find out the purpose and goal (if any) of the meeting
  • establish who needs to attend
  • draw up a draft agenda and design the group processes to attain the necessary results
  • share the agenda with potential attendees, changing it as necessary
  • ensure everyone gets fully briefed for the meeting and that everyone knows the purpose and potential consequences of the meeting
During the meeting, facilitators:
  • monitor the agenda
  • keep time
  • manage the group process
  • encourage participation from all attendees
  • help participants understand different points of view
  • foster solutions that incorporate diverse points of view
  • manage participant behaviour
  • create a safe environment
  • teach new thinking skills and facilitate structured thinking activities
  • record (with an agreed phraseology) agreements. They may also note unresolved issues for later debate.
The facilitator may write up and publish the results of the meeting to everyone concerned including those who could not attend."

NM FOG to ignore APS public participation policy

The NM Foundation for Open Government is not happy with the secrecy in the settlement agreement between APS Supt Winston Brooks and taxpayers.  They are righteously not happy.

Capital Report and Rob Mikolewski report, link,

New Mexico Watchdog will file an Inspection of Public Records Act request to obtain details of Brooks’ resignation. NM FOG’s executive committee is meeting Tuesday to decide to file its own IPRA request. If the committee goes forward, New Mexico Watchdog and NMFOG will join forces and file together.
Why is NM FOG's executive committee meeting to decide whether to take a stand against the school board's unjustifiable secrecy in the Brooks settlement, but not deciding whether to take a stand against the same board's recently unanimously passed and manifestly unconstitutional limitation on public participation in public meetings?  They have known, link about the public participation policy issue for longer than there has been, an IPRA issue.

I defy any member of the NM FOG's executive committee to actually read what APS School Board Member Marty Esquivel and his Modrall lawyers wrote, link, and not conclude;
  • it is vague.  How does one exactly, “respect the fact that the speaker’s views may not be shared by all.” ?
  • the policy grants unlimited discretion by the board or committee meeting chairs find violations, eject speakers from the podium of public forum at APS school board meetings, and even prohibit that speaker's participation in future meetings, and that
  • the rules are without legal basis, in especially denying participation in public meetings, and that
  • Marty Esquivel and Modrall lawyers' effort to mislead interest holders into believing that the Open Meetings Act prohibits school board members from answering questions asked from the podium of a public forum is dishonest, and
  • that requiring groups of people with similar interests to combine their views for presentation by a single speaker is as indefensible as it is utterly preposterous.
One is an IPRA issue an the other an OMA issue, but both are manifestations of the same problem caused by the very same people.  Their conflation makes eminent sense.

It's what they call a twofer. So why will NM FOG pay attention
only to the one?

The only difference I can see, is one is clearly the brainchild of FOG heavy hitter Marty Esquivel, and the other is not.

Monday, August 18, 2014

Federal Court rules against APS Board, Esquivel, Brooks et at.

For the second time, a Federal District Court has ruled against the sitting APS School Board, former School Board President Marty Esquivel, former APS Supt Winston Brooks, former APS Chief of Police Steve Tellez and a handful of others.

In March of this year, a Federal District Court Judge preliminarily found, link, "... the justifications offered by the Board (for banning me from school board meetings) are pretexts masking viewpoint discrimination."

Marty Esquivel, Winston Brooks, and a handful of others deciding under no real oversight, decided to file motions seeking reconsideration of the rulings, spending even more money in defense of their egos.  Who knows how many tens of thousands of dollars they spent submitting parallel motions to reconsider the order?  Seriously, who knows?

Well, the Court reconsidered the decision long enough to now order, link; the right decision has already been made.

"... Of significance in this case is that the Court had before it for consideration, prior to issuance of its Order Granting Preliminary Injunction, an extensive record. The materials before the Court included transcripts of deposition testimony and, most importantly, video recordings of key events. Defendants did not request an evidentiary hearing prior to the Court’s ruling. The Court afforded the Defendants a full and fair opportunity to be heard in opposition to Plaintiff’s request for a preliminary injunction. There being neither an intervening change in the law, new evidence previously unavailable, nor a demonstration of clear error in the Court’s ruling ... Defendants’ Motions for Reconsideration ... are denied.
So ordered this 18th day of August, 2014."

Brooks era over. Really?

If we are talking about the time when Winston Brooks was the sitting Superintendent of the APS, then yes, the Brooks era is over.

If we're talking about the leadership culture of the APS, their way of doing things, the Brooks era isn't over; it never began.  The culture that greeted him is the culture he leaves behind.

There hasn't been a fundamental change of course in the leadership, in more than a century.

If it ever was not a good ol' boy oligarchy; loose standards and looser accountability, I would like to know when that was.

I have long argued that if ever the leadership of any endeavor finds itself honestly accountable to meaningful standards of conduct and competence; it will always find itself accountable to meaningful standards of conduct and competence.

Leaders who are honestly and actually accountable to meaningful standards of conduct would never find themselves in a position where they would be able to lower standards or lessen the accountability without themselves being held accountable.

Time for a clean sweep of the leadership and a new course; beginning with, I hope, honest accountability to meaningful standards of conduct and competence at least for those few hours a day they are expect that of students.

The next APS school board election winners will pick the new superintendent

Unless the current school board picks Winston Brooks' successor with record speed and arrogance, there is no way the new superintendendt can be picked before the February 2015 school board elections.

Four of seven seats, the majority, will be elected.

There will be no re-elections.

Never has there been a better opportunity
for the people Albuquerque to re-establish
their control over the Albuquerque Public Schools.

It has been a good ol' boy club;
for far, far too long.

Sunday, August 17, 2014

Journal reporter not standing in corner, why not?

The leadership of the APS recently adopted a policy requiring the media, and any person desiring to record the meeting, to stand in the corner while they do.  (the NW corner to be specific)

If you examine Journal photos taken during the meeting, link, you will see the photographer was not standing in the corner when the photos were taken.  Unless the shots were taken past past mirrors, the photographer was standing very close to where APS Executive Director of Communications Monica Armenta sits when she attends meetings.  They may have chatted while the photographer took photos.  Armenta may have been pointing out which photos to take.  In truth,  I have no idea whether Armenta was even at this meeting.  In the deliberate absence of a record, conjecture is more justified.

Awhile ago, I wrote about the absurdity of the Marty Esquivel Modrall Law Public Participation in Public Meetings Policy and Procedural Directive.  Hereafter the MEML-PPPMPPD.  Provisions of the MEML-PPPMPPD are manifestly unconstitutional.

APS Chief Counsel
Modrall lawyer
Art Melendres.

In any event, at least several hundreds of dollars, dollars that could have bought an awful lot of crayons, were spent writing a policy and procedure that guarantees nothing, if not that they will make several hundreds of thousands of dollars many times over, litigating its defense.

Modrall partners make well over a million dollars a year litigating the interests of the school board members and senior APS administrators.  They make so much money, they won't tell you how much they are making.

The money they are making comes in unlimited amounts and without any real oversight, from operational funds; money that would otherwise be spent for its intended purpose; the purpose for which it was taken from taxpayers; educating nearly 90,000 of this community's sons and daughters.

The Journal has yet to investigate and report on the amount of money the leadership of the APS is spending in litigation against the public interests.

I proffered weeks ago, link, that one of the reasons the APS credentialed media weren't fuming about a policy restricting their Constitutionally protected human rights to be the press and any person desiring to record the meeting,was; they knew along, they would enjoy exception to the rules as long for as long as they they played by APS rules.
One rule apparently;
do not investigate and report upon the relationship between the leadership of the APS and Modrall Law.

Do not investigate and report upon the number of operational dollars that have streamed to Modrall Law, and continue to stream to this day.

The Marty Esquivel Modrall Law PPPMPPD is an abomination.  Anyone who bothers to read it and who knows anything at all about the law, will come to the same conclusion.

It is nothing but a bold move to funnel even more teachers salaries into Modrall coffers.

The Journal won't investigate and report upon it because they'd rather have full access to the room and post meeting interviews.

Photo journalist Mark Bralley would not have been able to record from that spot.  I would not have been allowed to record from that spot. 

It is disparate treatment; it's against the law.

photos Mark Bralley

Saturday, August 16, 2014

Will Skandera read the secret Brooks' report?

Sometime in the next few weeks, former APS Supt Winston Brooks' settlement agreement will be submitted for a stamp of approval by the NM Public Education Dept and the Second Judicial District Court; though it is unclear at this point, how stamping approval on a settlement agreement falls within the jurisdiction of the Second Judicial District Court.

Within the settlement agreement, it is clearly stated that the file containing the investigation of "a serious personnel issue" will remain secret from everybody, forever; APS shall not release the report to anyone. emphasis added

Does "anyone" include the Secretary of Public Education Hanna Skandera?  Will she be allowed to read the report before she signs off  for the PED?

Would she sign off on the settlement without reading the report?

Will she have someone else sign off in her stead?  Will they read it?

And while we're at it; will a Second Judicial District Court Judge sign off on Brooks' settlement agreement without reading the report?

What if the report is of criminal misconduct on the part of Winston Brooks, or his wife, or of the board?

They can't give away public money in a settlement agreement designed keep criminal misconduct a secret among themselves. That would be illegal.

It wouldn't be the first time they've done it,
but it would still be illegal.

Whether Hanna Skandera actually signs off herself or has someone else sign off in her stead, her reputation and the reputation of the NM PED will be attached to their assurance that the people have no legitimate interest in the contents of the file.

Similarly, the Second Judicial District Court and the Judge who signs off on the settlement and its secret file, attach their honor with their guarantee that the truth being secreted, is not being secreted in violation of the law.

photo Mark Bralley

What is the board hiding? Do we have a right to know or are we just being nosey?

I have argued on every appropriate occasion, public servants have a right to private lives.  The right to privacy is a Constitutionally protected human right.  A right that cannot be abrogated except by due process and a warrant.

Nevertheless, when private and public lives blend, the people whose power and resources are being spent, have a right to know what's going on.

You will notice, when powerful people hide truth, they never defend the hiding except by citing the law that allows them to do it.  APS for example, will not tell you why they are hiding the findings of investigations into corruption and incompetence in the leadership of their police force, just how.  How of course is the ubiquitous "its a personnel issue".

If the truth about Brooks and his wife includes misappropriation of public property, the luxury car entrusted to Brooks, then the people have more than a prurient interest in knowing the truth.

Is the settlement designed to protect genuine privacy rights or to hide evidence of a lack of oversight by the board over their superintendent?

They could defend their need for privacy without invading their privacy.  There is ethical redaction of the truth.  But you can't just claim the redaction is ethical, you have to prove it.

Proving it is easy enough to do, you simply have to justify the hiding.  Its only a problem if the why you're hiding the truth is as damning as the truth you are hiding.  Which is always is, or they would offer a reasonably specific justification as a matter of course.

Friday, August 15, 2014

Brooks leaves with $350K; who's to blame?

The Albuquerque Public Schools Board of Education voted at one point, to provide Supt Winston Brooks with a golden parachute amounting to a full three quarters of a million dollars.  They voted to extend his contract until 2016.

Four of them are up for election in 2015.  They voted to extend the superintendent's contract beyond the end of their own election to the board.  $250K of the $350K Brooks is taking, is for the year they gave him.  A year they had no business giving him.

It must have been "legal" but that doesn't mean its right.

They are Marty Esquivel, Kathy Korte, Lorenzo Garcia and David Peercy.

They sit in the office they hold because 97% of eligible voters; interest holders; stakeholders all, paid no attention to the last school board election.

The next one is next February.

Brooks resigns; walks away with more than a third of a million in cash

APS Supt Winston Brooks
resigned today. The APS
School Board has agreed to
give him $350,000 as a
going away present.

$350k could hire between
7 and 10 teachers depending.

According the agreement,
link, nobody admits that
anybody did anything wrong.

Brooks will not be held accountable for his part in the cover up of the cover up of felony criminal misconduct involving senior APS administrators and the leadership of APS' publicly funded private police force.

All other details will remain secret.

Now, if Marty Esquivel et al., would just resign as well,
we might really be getting somewhere.

photo Mark Bralley

Journal report on APS football players eligibility controversy; a great case study

Journal reporter James Yodice comes this morning with a report, link, on high school football players with eligibility issues, an APS coach with ethics issues, and a regulatory body with disclosure issues.

The story is interesting because it deals with violating codes of ethics rather than violations of law.

The regulatory body is the New Mexico Activities Association.  Yodice interviewed Executive Director Sally Marquez.  The standards of conduct she followed in responding to his questions are manifestly confused.

On one hand, she is bound by the law,  she is required to tell certain truths.  She must for example, produce public records upon demand.  The law provides exceptions.  She cannot for example, produce students names. (That is my assumption - I didn't bother to go read the applicable law).

On the other hand, she is bound by ethics.  Ethics require doing more than the law requires, and less than the law allows.

All of these folks do this dance as they answer questions.  One moment they dance to the tune of the law.  It may come after they waste ridiculous amounts of money in litigation trying to hide it, but it will come; they will obey the law.

During their finest moments, they dance to the tune of higher standards of conduct than the law.

I would like you to consider at least one of those standards.  I would have you consider it because it is the standard that the leadership of the APS has established and enforces upon students, link, here quoted in significant part;


There is no more fundamental ethical value than honesty. We associate honesty with people of honor, and we admire and rely on those who are honest. But honesty is a broader concept than many may realize. It involves both communications and conduct.

Honesty in communications is expressing the truth as best we know it and not conveying it in a way likely to mislead or deceive. There are three dimensions:

Truthfulness. Truthfulness is presenting the facts to the best of our knowledge. Intent is the crucial distinction between truthfulness and truth itself. Being wrong is not the same thing as lying, although honest mistakes can still damage trust insofar as they may show sloppy judgment.

Sincerity. Sincerity is genuineness, being without trickery or duplicity. It precludes all acts, including half-truths, out-of-context statements, and even silence, that are intended to create beliefs or leave impressions that are untrue or misleading.

Candor. In relationships involving legitimate expectations of trust, honesty may also require candor, forthrightness and frankness, imposing the obligation to volunteer information that another person needs to know...
Clearly Marquez was being "legal" not candid, forthright and honest in response to legitimate questions about the public interests and her public service.  At no time apparently, are politicians and public servants "legally" accountable to higher standards, despite their protestations. 

Higher standards cannot be enforced in courts of the lower standards.

My hackles raised a little when I read;
The New Mexico Activities Association has completed its investigation of the players. “As far as we’re concerned, the case is closed,” executive director Sally Marquez said.(emphasis added)
"... and "the case is closed" is the language powerful people use to end speaking truth to power.  They use it to indicate their suspension of a complainant's right to further pursue an unjust resolution of their complaint.  I just wrote, link, how some anonymous bureaucrat in APS has determined my "issue is closed" with respect to my complaint against APS' Chief of Police Steve Gallegos.

Thursday, August 14, 2014

APS responds to Ethical Advocate Complaint against APS Police Chief Gallegos

APS has responded to the complaint I filed, link, against APS Chief of Police Steve Gallegos.

My complaint read;

I asked APS Chief of Police Steve Gallegos whether he had qualified with the gun he carries. He refused to answer. I asked him again, about a month later, and he told me that I am "harassing" him by asking him that (and perhaps, any other question).

As a member of the press I have a right to ask legitimate questions about the public interest and Chief Gallegos public service.

He is a public servant in a public place engaged in his public service. I resent his refusal to answer legitimate questions and further, being threatened with charges of harassment for asking legitimate questions under those circumstances.

Further, Gallegos and select subordinates regularly harass me by following me around when I attend board meetings. Gallegos will answer legitimate questions about the public interests and his public service.
As a proposed solution I offered;
He will apologize for his implied threat to prosecute me for "harassing" him.

Gallegos will rescind the orders to have police officers follow me around for no reason.
In response, some anonymous bureaucrat at APS has written;
Information is provided in response to public records requests. These requests can be filed with Rigo Chavez. Officers and/or Chief Gallegos attend the board and committee meetings. No one has been directed to follow anyone during these meetings and this can be verified through both film and observation. This issue is closed. Thank you for using Ethical Advocate.
"Information is provided in response to public records requests". 
Even if that statement is true, it is not always, it doesn't address any concern I raised.  Not all questions have public records that respond to them.  Are you carrying a gun, for example, is a question not answered by any public record.  Have you qualified?  is a question that a public record that addresses Gallegos' failure to qualify regularly, those records are "up to fifteen days" away as "allowed by the law" and useless in the face of deadlines.
"Officers and/or Chief Gallegos attend the board and committee meetings. No one has been directed to follow anyone during these meetings and this can be verified through both film and observation.".
Frankly, I simply don't believe them.  Their "film" and "observation" prove nothing, they still follow me around.  Former APS Chief of Police Steve Tellez admitted as much in his own sworn deposition.

This issue is closed. Thank you for using Ethical Advocate.

Typical APS; we're done - now go away.

I am still under threat of prosecution for "harassment" if I ask him another question face to face.  This though there is no law that protects him from legitimate questions about his conduct and competence as a senior public servant within his public service.

I wrote back;
The resolution is categorically unacceptable.
Gallegos is free to continue to intimidate me with the threat of criminal prosecution for "harassing him" if I ask him another question face to face.
There is no law that says I have to file a public records request as my only avenue of gathering data. Clearly, not all questions can even be answered by public records. Are you wearing a gun you cannot qualify with? is not a question whose answer lies in a public records.
I require assurance that Gallegos'' opinion that my asking him legitimate questions is "harassment" in any form is unacceptable. This complaint is not closed.

Brooks eval bungled

One could argue that there is no single person more important than Supt Winston Brooks in determining the success or failure of APS effort to educate nearly 90,000 children.

One could argue that the APS Board of Education engages in no more important endeavor than selecting the best superintendent.  And that their second most important endeavor is their annual evaluation of his performance.

Every year, the board is required to evaluate the superintendent, and by logical extension, their competence in his selection.  It is a self evaluation as well.  Not only are they evaluating their competence in his selection, but their continued endorsement over the years while inflating his golden parachute to an all time high of three quarters of a million dollars.

It creates the appearance of a conflict of interests;
their duty to evaluate their superintendent impartially
and their interests in protecting their own reputations.
Their relentless refusal to even acknowledge the existence
of the conflict suggests that they are not handling it well.

That they carry no objective data into the evaluation; that it is all subjective and unquantifiable is profoundly disturbing.  One need look no further than their continued  refusal to survey teachers and include their input in their annual evaluation.

There aren't many good and ethical reasons to hide the truth from stakeholders.  There is not one good and ethical reason that doesn't require defense or at the very least, acknowledgement.

If the APS Board of Education had even one good and ethical reason to conduct this entire process in meetings in secret, meetings they choose to not record, why not defend it?

Why not defend their deliberate refusal to record their meetings, to create an incontrovertible record?  Why not create a record that would be available only to a judge?  Except that they don't want to create a record that would be available to a judge, because in their meetings in secret, they routinely violate the law.

It is proof positive of their individual and collective unwillingness to be held accountable even to the law, much less the higher standards of conduct they hold up for students. 

If the school board could justify their position; the entire process,
stem to stern, cloaked in a blanket of secrecy, the Journal would
publish it.  You know they would.

The board hasn't offered a justification.  And the Journal hasn't asked for one.  That, or the Journal for some reason known only to them, won't report what is that justification.

If nothing else, the board could publish their defense on their award winning website.  APS' million dollar a year public relations effort could be put use telling truth; the whole truth and nothing but the ethically redacted truth about the board's process and product.  They won't do that either.

There is really in the end, only one reason for them to hide the truth beyond the requirements of the law; and that is to escape the consequences of the truth being known.

Trust me, they are not trying to escape the accolades
that truth telling would evoke.

Wednesday, August 13, 2014

Lid creaking open on Brooks' administration

After six years of ignoring real problems in the Winston Brooks administration of the APS, at least one media outlet is not only sniffing around, but actually reporting on (at least part of) what they found, link.

Mayor Berry's PIO, Ramirez
Mayor's PIO turned KOB TV investigative reporter Chris Ramirez, has found that Brooks is headed to an October trial over his (alleged) personal misconduct.  A viewer would conclude, "a" trial as opposed to; "many" trials.

Had Ramirez dug deeper, he would have found Brooks is headed for more than one trial in which he is a named respondent, and not just because he is the titular head of the APS.

Ramirez would have found the likelihood of actual trials is remote.

Trials for any board member or senior administrator are extremely unlikely because at trial, guilt would be found.  Instead, if they can't drive off the complainant with their abuse and legal weaselry, they settle.  Huge amounts of money, funds that would otherwise be spent educating children, are traded for admissions of no guilt and clean records.

On my honor;
In early 2007, just before the school board election, I spoke with another candidate in the upcoming school board election; now APS School Board Member and enforcer Marty Esquivel.

I expressed my concern over the spending huge amounts of money in cost is no object legal defenses for senior APS administrators.  I expressed my concerns over the lack of transparency in the spending of public resources and the wielding of our power.

Esquivel indicated he was fully aware of the fact that APS spends huge amounts of money on lawyers (read Modrall and a few others) who run up huge bills on expensive litigation and then settle on the court house steps.

At the time, I read disapproval into what he was saying.  I thought we were on the same page.  Instead, Esquivel is currently up to his eyeballs in litigation that is going to cost taxpayers a million dollars, in defense of his own ego.

When Ramirez investigates and reports upon;
  • the money APS spends on litigation in the interests of senior administrators and school board members, and
  • the sizes of the settlements, and
  • the lack of oversight over unlimited budgets for "legal" defenses, and just for good measure,
  • the cover up of the cover up of felony criminal misconduct involving senior APS administrators and the leadership of APS' publicly funded private police force
I will be perhaps, convinced of his full conversion; PIO to press;
from hiding the truth about politicians and public servants
to ferreting it out, from covering asses to exposing them.

Stay tuned

photos Mark Bralley