KRWG

Legal Drama Follows Departure Of Las Cruces Public Schools Chief

Aug 25, 2019

Credit Peter Goodman

Commentary: Greg Ewing's lawyers’ efforts to bury his retirement letter are a sad coda to his failure as Superintendent of Las Cruces Public Schools.

When LCPS hired Ewing, he said all the right things in the right tones.  Almost two years in, warning lights began flashing.  The Sun-News was publishing things he disputed, and he refused to discuss them on my radio show unless I told co-host Walt Rubel (a Sun-News editor) to go fishing that day.  Ewing didn't dare face hard questions from a newspaperman.  

Now Ewing has resigned – but he's still trying to get more of our money. 

Under New Mexico's Inspection of Public Records Act (IPRA), Ewing's resignation letter is a public document.  KVIA requested a copy.   LCPS withheld it.  IPRA's narrow exceptions don't apply, and LCPS's lawyers say they agree with that; but Ewing's lawyers say they'll seek a court order against disclosure.  LCPS is giving them time to do that.

I believe that delay violates IPRA.  (LCPS is already on the hook for Ewing's illegal handling of an earlier IPRA request.  That's one ground cited by “Enough” for seeking to recall three board-members.  Whether or not recall proponents can hold boardmembers responsible, wrongfully withholding documents requested under IPRA usually means a public entity must produce the documents and pay two sets of attorneys.) 

KVIA got the three-page resignation letter (on ScottHulse letterhead), but everything was blacked-out except the lawyer's name and Ewing's.  

IPRA requires LCPS to give KVIA the letter “as soon as possible” and definitely within three days.  LCPS should have told ScottHulse it had three days to seek an emergency court order if it so chose.  ScottHulse should have been ready: it drafted Ewing's letter to a public agency, with full knowledge of IPRA. (ScottHulse didn't return my phone calls.)

I heard two lame excuses for not releasing the resignation letter.   (Even if one were valid, that should mean redacting certain portions, not everything.)

IPRA exempts “letters or memorandums which are matters of opinion in personnel files” to avoid publicizing unsubstantiated opinions about public employees – and perhaps to protect those voicing opinions from retribution.  Here, Ewing has resigned.  Maybe he included criticism of the board.  His lawyers want to say that because he expressed opinions and because LCPS might someday put the document in Ewing's personnel file, the exception applies.  That novel argument shouldn't succeed.  A court should sanction it as “frivolous.”

Secondly, Ewing's lawyers say that Ewing, having resigned, is offering in his letter to settle some controversy; but there's no litigation.  Ewing must be demanding money, based on some claim of mistreatment and/or a threat to do the board some further harm. 

By this logic, any threat to sue a city, if coupled with an offer to forego suit if paid $1million, would become a confidential document, immune to IPRA.  That’s clearly not what the New Mexico Legislature intended.

IPRA's “opinions in a personnel file” wasn't meant to cover a former superintendent's gripes.  IPRA contains no exception making threats against a public agency confidential. 

Far from letting Ewing extort more of our money, many citizens wonder why he can't be back-charged for the vast sums his bad conduct will force us to pay in lawsuits.

            NOTE: After my deadline, Ewing wisely retreated from his bad IPRA position.  His resignation letter is an odd mix of threats and complaints.  I’m guessing his substantive legal complaint isn’t much better than his anti-IPRA stance.