Research Firm Had Information Since June/July
By Etta Pettijohn
Before state lawmakers created an ethics commission two years ago, they spent a great deal of time discussing their fears that frivolous complaints could be filed as a political weapon to damage a public official's reputation.
Those fears materialized this week, as the democrat opponent of Rep. Rebecca Dow, (R-38) filed an ethics complaint against her just weeks before the Nov. 3 general election, claiming Dow violated state conflict-of-interest and financial disclosure laws when seeking state grants for the non-profit Appletree Educational Center.
The timing of the complaint means it will be long after the election before the New Mexico Ethics Commission determines if the allegations have any validity. A 60-days (before the election) blackout period was established in the law creating the entity, where the Commission is required to keep cases confidential, unless it finds evidence of wrongdoing, although the law allows the accuser to publicly disclose a case.
The Commission was established by constitutional amendment in 2018, and signed into law by Gov. Michelle Lujan Grisham in 2019.
This week Karen Whitlock for District 38 Representative campaign also fired off news releases to most media outlets in the state, outlining their accusations.
Whitlock is running against Dow and Libertarian William Kinney for the House District 38 seat. Dow defeated Whitlock in two previous runs for that seat.
"I filed after getting all the relevant documents. In no way did the blackout period play into the timing of this, just the timing that documentation was received," Whitlock stated. "I would have very much liked to have had the documents earlier so that the complaint could have been filed earlier."
She also stated on her Facebook page, and to several media inquiries, "All of these details are new to me, and requests (for Appletree contracts) under IPRA have been pending since July. I filed within 10 days of receiving copies of the unlawful 'no bid' contracts and false statements on agency certification forms. I wish that I could have filed sooner."
This Grant County Beat reporter sent several IPRA requests to both the Public Education Department (PED) and the Children, Youth and Families Division (CYFD) this week, the two agencies whose contracts the Whitlock campaign provided as their evidence of their accusations.
The CYFD records custodian, Kathleen Hardy, replied, "In reviewing my requests for the past calendar year, I do not find any requests from either Karen Whitlock or Rick Lass (Whitlock's campaign manager). The only public records requests specific to Appletree came in from Matt Bricken."
Matt Bricken is a partner in Grindstone Research LLP, an opposition research firm. Records from the New Mexico Secretary of State's website shows the Senate Democrat Committee paid Grindstone $12,000 Sept. 1 for unspecified services. The Grindstone Research webpage lists the New Mexico House Democratic Caucus and New Mexico Senate I.E. as clients.
Hardy also verified, via email, that Grindstone had the majority of his IPRAs answered as early as June and July.
When asked the date the CYFD provided the requested documents to Bricken, Hardy replied, "For Mr. Bricken's first request (June 29, 2020), CYFD responded June 30, 2020. For Mr. Bricken's second request (July 23, 2020), CYFD referred him to the Early Childhood Education and Care Department (ECECD), as the care and custody of the requested records had transferred to ECECD effective July 1, 2020."
State agencies must respond to IPRAs no later than 15 calendar days after receiving a written request. If inspection has not been allowed within three business days, the custodian shall explain in writing when the records will be available for inspection, or when they will respond to the request.
IPRAs to the PED were unanswered at press time.
When the Grant County Beat asked Lass who filed the IPRAs with the CYFD, PED and ECECD he responded, "Apparently CYFD forwarded the IPRA requests to the General Services Division (GSD), then GSD replied to us." He later said, "We wanted to have a professional researcher, Bricken, make these IPRA requests rather than Karen or I."
In another email from Lass, he asked specifically these accusations be addressed:
- (Lass) Rebecca Dow violated the Governmental Conduct Act intended to prevent self-dealing by soliciting and entering into, as the contractor, state contracts worth millions while she was a sitting legislator. She signed multiple certifications stating she was not a legislator when she was.
Dow said when applying for a grant through the state CYFD she didn't check the legislator box because state law did not require it, as she was just the grant writer, while Appletree was the contracted provider.
State statute requires legislators to identify themselves in state dealings only if they have 20 percent ownership or more in the business. Dow did identify herself as CEO until she resigned in early 2019, and has since served as an unpaid grant writer for the non-profit.
"During my first term, I called Legislative Council Services (LCS) to make sure I completed the form correctly. I even spoke with several cabinet secretaries to make sure I followed the intent of the law. I completed the forms as I was instructed," she said.
LCS Director Raul Burciaga verified that since Dow and her family have less than a 20 percent interest in Appletree, her signature on a PED certification form is appropriate, and perfectly legal.
- (Lass) Rebecca Dow violated the Financial Disclosure Act by failing to disclose to the Secretary of State her financial interests as CEO, failing to disclose the government contracts she secured, and failing to disclose that she represented AppleTree before state agencies.
Burciaga also said Dow disclosed her financial relationship with Appletree on financial disclosure forms, even though she was only required to disclose that she received more than $5,000 annually from them.
"The most outrageous accusation is that I deny being a legislator in order to obtain governmental contracts for my personal gain and for the benefit of my family," said Dow.
"AppleTree is a non-profit, governed by a board of directors, providing comprehensive family support services to Sierra County families at low, or no cost," she said. "I'm not on the board and no members of it are related to me.
"Whitlock's claims are moot at this point. No one has ownership or interest in AppleTree. If it ever dissolves, the IRS directs the assets to be transferred to another non-profit."
As a nonprofit, AppleTree is eligible for grants, and, in turn, uses the funds to provide low to no-cost family support services in Sierra County, said Dow. These services include home visiting, child care, PreK, early PreK, on-site access to early intervention, Afterschool programming, alternative K-12 schooling, and various free family resources.
"When I check 'no' and sign a disclosure form stating that the 'contractor' is not a state employee or legislator, I'm assuring that AppleTree is not owned by a state employee or legislator," said Dow. "The instructions on the form direct me to answer this way.
"If I was an owner or had a financial interest in AppleTree I would have checked and signed 'yes.'"
These grants go through a competitive review process. Each contract then goes through a procurement process, which includes legal review by state lawyers before approval, she said.
"She's either accusing multiple state agencies of being uninformed of who their lawmakers are, or she's accusing them of gross negligence and unethical influences. Neither is true," said Dow.
According to Appletree's 2019 Annual Report the non-profit organization spent 10 percent of its budget on administration (employing more than 50 people in Sierra County), and 86 percent of its budget on direct services. It took in just under $1.2 million in state and federal grants, and $147,536 in tuition and fees. The non-profit secured $634,583 in state contracts last year, and $58,627 in donations. It also raised $55,380 in fundraisers, rentals, etc., spending four percent of its budget fundraising. State contracts make up 30 percent, and state grants 56 percent of its annual budget.
Dow said she has launched three nonprofits and brought over 35 million in grants to Sierra County.
"Here is the truth. New Mexico lawmakers are volunteers. We have jobs, and are allowed to work for organizations and businesses that have contracts with the federal and state government. Your representatives are teachers who are paid by the state, health care providers who serve Medicaid and Medicare clients, lawyers who represent governmental agencies and businesses with governmental contracts. They are university professors whose paychecks are afforded by federal and state dollars, property owners who lease space to governmental agencies or families on Section 8 housing, food service providers who contract with schools, universities and senior meal sites, ag producers who receive government subsidies, and in my case—I'm a grant writer who secures much needed funds for much needed services in my district," said Dow.
"There is a big difference between my opponent and me. She talks a big talk, while I take action. Because of my efforts, Sierra County has early childhood services, out-of-school time programming, GED and high school credit recovery for dropout and adults, home visiting, behavioral health services, parks and pathways and much more," said Dow.
"Even as her ridiculous claims were being released to the press, I was downloading a grant application for three non-profits in my area. As essential service providers, their hands are pretty full right now. I volunteered to complete their grant applications so that they can receive much needed COVID aid."