bill-richardson-official-photo2

New Mexico Gov. Bill Richardson

Want to know if Gov. Bill Richardson met with the son of a friend and prominent fundraiser before the state decided to invest in a fund that ultimately cost New Mexico $90 million?

Good luck.

The Independent sought to view documents from the governor’s office from January through August 2006 that would have divulged with whom he had met in the months prior to the costly investment that benefitted the son of the governor’s friend to the tune of millions of dollars.

But the governor’s office isn’t saying or allowing access to the documents. Its rationale: The governor’s calendars, datebooks and other documents that would shed light on his schedule are protected by executive privilege.

Executive privilege is a legal concept that allows a governor or officials at executive agencies to refuse to turn over information on the basis that its disclosure would harm the integrity of the decision-making process.

The theory behind the protection is that by guaranteeing confidentiality, the government will receive better or more candid advice, recommendations and opinions, resulting in better decisions. This deliberative process privilege is often in dynamic tension with the principle of transparency in government. And that turns out to be a central tension in New Mexico law.

A guide put out by the New Mexico Attorney General on the state’s Inspection of Public Records Act explains that executive privilege is meant to protect the content of the advice given to the governor by advisers.

But how far the privilege extends — say for example, to the identities of the advisers — is an unanswered question in New Mexico law, said Al Lama, Attorney General Gary King’s chief deputy.

“The scope of the privilege is undecided,” Lama said. “The recognition of privilege in New Mexico is to safeguard the executive’s decision-making process and a court has not determined that disclosure of who the governor met with is or is not confidential.”

The governor’s office did not respond when the Independent asked for a more thorough explanation of its use of executive privilege.

The Independent’s goal was to see if Richardson had met with Marc Correra, the son of Anthony Correra, a Richardson friend, in the months prior to two state boards investing in $90 million with Vanderbilt Financial Trust. The state lost all $90 million in the investment. Correra is said to have been paid $2 million as a third-party marketer, a kind of middleman in the investment world.

While the broadness of executive privilege is an open legal question, New Mexico Senate President Pro Tem Tim Jennings, D-Roswell, said Richardson must be transparent if he wants to alleviate public concerns about how business is done in New Mexico.

In recent months the Richardson administration has found itself under scrutiny. Federal prosecutors are investigating pay-to-play allegations in a deal between a state agency — the New Mexico Finance Authority — and a California contributor to two political committees started by Richardson. The investigation cost Richardson a seat in President Obama’s cabinet.

At the same time the state’s two investment boards – the State Investment Council and the Educational Retirement Board – have been subpoenaed by the U.S. Attorney’s Office in another inquiry related to a scandal in New York.

The New York probe has uncovered questionable practices in New Mexico that appeared to expose the sometimes-blurry line between influence peddling and the legitimate service in the investment world that third-party marketers perform for money managers.

Among the allegations: The founder of New Mexico’s former financial adviser, Aldus Equity, helped the son of the New York state comptroller, Alan Hevesi, win a lucrative contract in New Mexico for a firm he was representing in return for Aldus’ increased business in New York, according to a criminal complaint. At the time, the comptroller’s son, Dan Hevesi, was acting as a third-party marketer in New Mexico. Aldus’ founder, Saul Meyer, was charged in the New York criminal probe.

“When there an aura of suspicion, where something looks and smells fishy, you have to open the tackle box and show us what you are fishing for,” Jennings said. “The governor has some obligation to the people to alleviate any concern that the integrity of his office has been breached. He needs to come forth.”

Executive privilege

This is not the first time that the Richardson administration has used ‘executive privilege’ to keep government documents shielded from the public.

The administration used executive privilege as a reason to keep records private from an investigation in 2003 into what happened to developmentally disabled clients discharged from state institutions in Los Lunas and Fort Stanton.

And state agencies also have used it as a reason for not turning over records.

The State Investment Council used executive privilege recently as one of several reasons to deny records requested by a former Educational Retirement Board investment officer Frank Foy.

Foy has sued the state to recover the $90 million lost due to the Vanderbilt Financial Trust deal.