New Mexico Political Journal

The High-Risk Insurance Pool Betrayed by its own Lawyers? Why is the New Mexico Medical Insurance Pool Suing the State Auditor? Reason: It appears that Michelle Lujan Grisham and the High-Risk Pool Hid Campaign Contributions.

09/02/2018

The Lawyers Suing State Auditor Johnson Made Contributions to their Own Client—the High-Risk Pool

A Santa Fe law firm, Cuddy & McCarthy—which includes prominent TV lawyer Ms. Laura Sanchez-Rivet—is suing State Auditor Wayne Johnson on behalf of the New Mexico Medical Insurance Pool (NMMIP), which is also commonly known as the High-Risk Pool.

The purpose of the suit is to keep from being publicly audited by the Office of the State Auditor (OSA) and to therefore essentially hide the High-Risk Pool's records from public view.

But it turns out that members of the law firm are campaign contributors to the Pool's executive director's former CEO, Congressperson Michelle Lujan Grisham, and her partner and campaign manager, State Representative Deborah Armstrong. Cuddy & McCarthy's attorneys and family members have thus far contributed nearly $30,000 to both politicians' campaigns, including some $5,900 in 2010, 2015, and 2016, before their same firm was awarded a contract by the High-Risk Pool.

The contracted executive director of the High-Risk Pool is Delta Consulting, and Lujan-Grisham was serving as its CEO at the time the contract was awarded in October of 2016. This is important because the legal services contract with Cuddy & McCarthy appears to have at least three procurement violations.

• First, the request for proposals (RFP) was published only once (according to NMPress.org). The law says it must be published three times.

• Second, the responses to the RFP appear to have been due back in only 5 calendar days, instead of the legally-required 10 calendar days.

• Third, according to the firm's own pleadings, the RFP did not include a Campaign Contribution Disclosure Form, something that is also required by the Procurement Code. [Note: You can read the Disclosure Form at the bottom of this page.]

Why Did the High-Risk Pool's RFP not comply with the law?

Why did the RFP Leave Out the Campaign Contribution Disclosure Form?

Here are the most likely reasons the form was left out, and the most likely reasons for non-compliance with the Procurement Act:

1) The High-Risk Pool Knew which Law Firm they were Directing their Contract to: Cuddy & McCarthy ("The Firm")

2) The High-Risk Pool was arranging for The Firm to have a quick 3-working day turnaround, so no one else could bid on the RFP, even though this short response timeframe violated state law, which requires 10 days. Presumably, the Firm would be watching for the RFP and be ready to go with their bid.

3) The High-Risk Pool published the RFP only once, even though the law requires it to be published three times. Presumably, again, The Firm only needed to be assured that it was published. Who else would be looking to catch it?

4) And this is perhaps the most important potential reason: The High-Risk Pool knew that Tthe Firm had made contributions to Lujan-Grisham and to Armstrong, and did not want those contributions disclosed for fear that they would disqualify their hand-picked law firm.

NMPJ's own review of Michelle Lujan Grisham's campaign contributions shows that, in fact, the law firm should have disclosed at least $5,900 in contributions for both Lujan-Grisham and her assistant/associate/partner/campaign manager Deborah Armstrong, who is also a politician asking for donations. Why? Those donations were made prior to the RFP.

In fact, Ms. Sanchez-Rivet made a contribution to Deborah Armstrong just two weeks before the RFP was issued.

This is not only the exact kind of conduct that's required to be disclosed on the form, it is the exact reason the form is required to be filled out and published as part of the RFP. The Firm must know this. So must The Pool.

THE LAWSUIT MEANS: WE JUST DON'T WANT DISCLOSURE

These violations of the Procurement Code and other state laws were actually discovered under State Auditor Tim Keller, who for reasons unknown to NMPJ failed to include these findings in his own October, 2017 published procurement audit.

IT'S TOO LATE FOR THE HIGH-RISK POOL TO CLAIM IT CAN'T BE AUDITED BY OSA

The High-Risk Pool in its own lawsuit, a copy of which NMPJ has obtained from the courts, stated that the High-Risk Pool "was asked to provide certain information to the Office of the State Auditor (OSA) regarding its procurement practices," and goes on to state that it "provided the requested information to the OSA on or about April 14, 2017."

Those are two very important disclosures. Why? Because they step on the High-Risk Pool's own arguments, and the arguments Cuddy & McCarthy make in the very same set of pleadings: The arguments both are making that no one is entitled to see their records—that they are not required to be transparent with the voting public.

But how can they now make this argument when they already acknowledged the OSA's authority to review its records? In their own filing, Cuddy & McCarthy state that the High-Risk Pool "provided the requested information to the OSA on or about April 14, 2017."

The Pool and The Firm can't have it both Ways

The High-Risk Pool and its law firm are now claiming The Pool is not subject to the State Auditor's jurisdiction. But when did they reach that conclusion? It certainly wasn't while Tim Keller was the State Auditor. No way. When he asked them to turn over documents, they did. And we find no record of any pushback, disagreement, or argument about their obligation to disclose anywhere in that transaction.

But now, having complied, unquestioningly, with State Auditor Tim Keller's request for documents, the High-Risk Pool suddenly decides that under State Auditor Johnson it isn't going to comply with the law, and this at a time when their law firm puts into the public record the fact that The Pool seems to have a lot to hide. (We wouldn't know about the Pool's non-compliance with the law without reading Cuddy & McCarthy's own "Exhibit A" which they themselves filed in court.) I other words, The Pool suddenly decided to say "don't look any deeper."

HIGH-RISK POOL GOES INTO HIDING AFTER KELLER'S FINDINGS

It certainly appears that the High-Risk Pool, and perhaps Cuddy & McCarthy, did not expect Keller to make any findings—that he would be a "friendly" audience. And in fact, he was—to a certain extent. That is to say, Keller did not publish his own findings of The Pool's deficiencies in his procurement report. However, in March of 2018, the Office of the State Auditor sent a letter to The Pool that detailed its findings.

OTHER VIOLATIONS?

State Auditor Wayne Johnson has recently made news for uncovering big spending that violates the Mileage and Per Diem Act. The statute says that the High-Risk Pool Board members are subject to that statute as well.

The question we have is: Is the High-Risk Pool scoring as well on compliance with the Mileage and Per Diem Act as they are with the Procurement Code? (And on the latter they're getting perhaps a "D" at the very best.)

In any case, we are curious about how well The Pool is doing on its other expenses and compliance. We would like to know. And it appears the Pool and The Firm would not like us to know. In our view, State Auditor Johnson would be derelict in his own constitutional duties if he were not asking.

Unbelievably, THE HIGH-RISK POOL (OR THEIR LAWYERS) TURN THEMSELVES IN, OVER and OVER

One of the admissions made by lawyers for the High-Risk Pool is that no State Auditor has ever required the Pool to "comply with the State Audit Act," and that this is "the first time in the NMMIP's over 30 years of existence" that any state auditor has followed the law in requiring them to comply. Johnson seems to have a track record in his 8 and 1/2 months in office of bringing entities, like the Regional Coalition of LANL Communities and the REDI Net Broadband Board, into compliance by following the law. And the light that he has shined on those long hidden entities has not been flattering.

More Unbelievable, the High-Risk Pool Claims that People Will "Die" If the Pool is Exposed to the Sunshine

While this firm got this sweetheart deal ($100,000) to provide legal services to the Pool, this same law firm has now had the audacity to conjure up the ridiculous and insulting argument that claims that "New Mexicans could become more ill or die," if the Pool is required to comply with the Audit Act.

This is one of the stupidest and most insulting legal arguments — or even political argument — we have ever heard of. Now, we suppose, all entities using taxpayer dollars will resist being audited by claiming "people will die" if we have to have our records looked at.

CAMPAIGN CONTRIBUTION DISCLOSURE FORM

Pursuant to NMSA 1978, § 13-1-191.1 (2006), any person seeking to enter into a contract with any state agency or local public body for professional services, a design and build project delivery system, or the design and installation of measures the primary purpose of which is to conserve natural resources must file this form with that state agency or local public body.

Furthermore, the state agency or local public body shall void an executed contract or cancel a solicitation or proposed award for a proposed contract if:

1) a prospective contractor, a family member of the prospective contractor, or a representative of the prospective contractor gives a campaign contribution or other thing of value to an applicable public official or the applicable public official’s employees during the pendency of the procurement process; or

2) a prospective contractor fails to submit a fully completed disclosure statement pursuant to the law.

THIS FORM MUST BE FILED BY ANY PROSPECTIVE CONTRACTOR WHETHER OR NOT THEY, THEIR FAMILY MEMBER, OR THEIR REPRESENTATIVE HAS MADE ANY CONTRIBUTIONS SUBJECT TO DISCLOSURE.

Email us (at nmpj@dfn.com) with your feedback, comments, questions, and ideas.

Intelligent Political Discourse—for the Thoughtful New Mexican

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Jeb Bush gets religion.

"They said he got religion at the end, and I'm glad that he did." — Tom T. Hall. The Year Clayton Delaney died.

Well, it's official. Jeb Bush has changed quite of few of his positions on illegal immigration. The single most significant is that he no longer endorses the "path to citizenship" for those who came here illegally.

This is, after all, the key portion of any proposal aimed at "reforming" our existing illegal immigration situation.

No sensible citizen can see any point in trying to deport between 12 and 16 million people currently living in America illegally. And no candidate for any office that we know of supports that. What the average American wants is for the country to "get a handle on it." They want it stopped, our borders secured and future illegal immigration prevented. It is a national security issue.

The Path to Legal Status

The only way to accomplish the above goals, is to identify current illegal immigrants, get them accounted for, have them documented, and placed on a path to legal status. Neither they nor their children or spouses should live in a state of fear or anxiety.

But a path to "citizenship" is not the right course. It is not morally or legally correct. A merciful and compassionate nation can provide the safeguards of legal status without sending the message to the rest of the world that all you have to do is cross our border and you will eventually get to become a citizen, thus circumventing the legal framework scores of millions of Americans have followed, honored and respected.

If someone who is granted legal status eventually wants to become a citizen, that person should have to return to his or her country of origin and wait in line like 20 million people around the world are doing at any given time. Failing that, America will forever send the signal that anyone in the world can "jump the line," and that there is no reason at all to obey our immigration and naturalization laws.

We Like Jeb Bush

We are glad Jeb Bush has learned this lesson. He is a fine speaker, and can eloquently explain his positions on complex issue. If he were not named "Bush" he would be an actual top tier candidate—in all that that title would entail, including likelihood of acceptance and support of and from the American people in the primaries, and in any theoretical general election.

We also recognize that he already is a de facto top-tier candidate because of his fame and his fundraising.

If he were to be the nominee of the Republican Party we would heartily support him and endorse him. We hope, however, that he is not, as he does not give the center-right coalition the best chance of winning.

The Major League Baseball Playoffs are not realistic, and destroy the actual meaning of the sport.

Major League Baseball is unique in this respect—its postseason is markedly different from the way the game is played normally. No other major league sport suffers from this flaw.

Not that much is wrong with baseball. In some respects it's the most well thought-out sport there is. The "perfect game" many aficionados say.

But the Major League Baseball postseason experience is unique in the world of professional sports, and not in a good way.

In fact the playoffs are flawed in such a way as to detract from the sport itself and diminish the game and what it means to be the world champion of the sport.

Among the Big Four team sports of North America: football, hockey, basketball and baseball—and all the 122 professional major league teams competing in the NFL, NHL, NBA and MLB respectively—it is in baseball alone that the postseason turns the sport itself on its head and makes it reflect something that it is not. This article will explain why that happens and why it is wrong-headed.

Background on the The Frequency of Play

The 30 teams in both the National Hockey League and the National Basketball Association teams play a very similar schedule. On average, each team has a day off between games, sometimes two days off. Though there are back-to-back games, they are relatively infrequent. NBA teams play between 14 and 22 back-to-back games a season, and for the NHL it usually ranges between 9 and 19. The NFL has a full week between games, the exception being the new Thursday games that each team plays once, leaving them only four days' rest once a year.

But baseball players play every single day. Ten days straight, then a day off, then seven more games, then a day off, then ten more games. Typically a baseball team plays 27 games every 30 days. For the NHL and NBA it would be 14 per month, and for the NFL the number would be 4.

Getting to the Playoffs: It's a grind

In all four sports, getting to the postseason requires a total team effort—in fact an all-out total organizational effort. Teams must be deep, have bench strength and the capability of moving players in and out of the lineup, and on and off the roster, who can take the place of key players who go down for an injury, or who have to miss games for whatever reason. While this is true of the other three major sports as well, it is most certainly even more of a concern for baseball teams because of the sheer volume of games in which a team must field a competitive lineup.

Each league's regular season* is a marathon, not a sprint. NFL teams play for 17 weeks, 16 games. The NHL has an 82-game season over six months, paralleled by an NBA season of 84 games over the same timeframe. Baseball is the biggest marathon of all—a true test of resilience and endurance—162 games usually starting around the beginning of April and finishing about the end of September.

NHL teams carry 23-man rosters, of which 20 can be active for any particular game. The NBA is similar, with 15-man rosters of which 13 can be on the bench for a given game. In the NFL, the teams have 53 players on a roster, but only 46 can suit up on game day. In Major League Baseball, teams have a 25-man active roster, and all 25 are at the park every day.

The Postseason Playoffs: Sport by Sport

The National Football League:

Of the 32 teams, 12 qualify for the playoffs. The playoffs are conducted in the exact same manner as the regular season. Each team plays once a week, the exception being that the four top teams get the first week off. For a typical qualifier to reach the Super Bowl, the team must play three consecutive weeks. At that point both remaining teams have two weeks off before the Super Bowl.

In short, the playoffs, with a game each week, reflects the same means of advancement as is present in regular season grind.

The National Hockey League:

16 of the 30 teams qualify for the postseason. The playoffs are conducted in the exact same manner as the regular season: a game, a day off, a game, a day off, a game, a day off, and so on. Just as in the regular season, there are occasionally two days off. But the playoffs require the same stamina, the same approach as that required to make the playoffs.

The National Basketball Association

Major League Baseball

10 of the 30 teams qualify for the postseason. (Although four of those teams qualify only for a one-game do-or-die play-in game.)

Here is where all similarity to baseball ends.

Unlike the other three sports whose playoffs mirror the test of the regular season, and whose conditions are the same as the regular season, Major League Baseball playoffs in no way resemble the sport itself. In hockey, basketball and football, the teams win playoff games and reach the pinacle of the sport in exactly the same way that they qualify to try to do so.

Not so in baseball. They are two entirely different concepts. Teams make the playoffs only because they have depth, five-man pitching rotations and can play day-in and day-out at a high level. But the baseball playoffs suddenly become a kind of "all-star" game within each team's roster. MLB playoffs are conducted in a way that more closely follows the NBA and the NHL. Teams have enormous numbers of days off.

Here's the key point: No Major League Baseball team could even qualify for the postseason if they played the same way during the regular season that they do in the playoffs. None.

In the regular season Major League Baseball teams have to use a 5-man starting rotation, with pitchers pitching every 5th day. There are not enough days off to have even a four-man rotation, let alone a team with three pitchers. Even the best team in baseball using only a 4-man rotation, would wear them out, and most likely end up with a record of something like 66-96, or 70-92—and that would be if they were otherwise teh best team in the sport.

The 2014 Baseball Postseason is Typical

As examples, last year's World Series teams the Kansas City Royals played only 15 games in 30 days, and the San Francisco Giants played only 17 games in 30 days. The 12 to 15 days off in the non-baseball fantasy world of the MLB postseason, means that teams can turn to three pitchers and give all of them plenty of rest. But it isn't the way baseball really works.

At one point, the Royals had 5 consecutive days off, and the Giants had 4. This never happens in the regular season. Even the All-Star break is only three days. Very rarely is there anything beyond a one-day break, and even that happens only a couple of times a month.

What this means is that neither team used the team that got them to the playoffs. (The NFL, NBA and NHL teams ALL used the very same teams that got them to the playoffs.)

Baseball teams use a three-man pitching rotation in the playoffs. Sometimes, they essentially opt for two pitchers only—conceding the likelihood that some of their games are going to be lost—when their third-, or rarely fourth-best pitcher has to face one of their opponents' two-man or three-man rotation members.

Imagine an NFL team using only one running back and three wide receivers, instead of rotating through their roster in the course of a playoff game—or using only 4 defensive backs and 4 linebackers, instead of rotating 8 or 9 DBs and 6 or 7 linebackers? In hockey, would a team use only two or three of their forward lines? Would an NBA team use only the starting five? They would never make the post season if they tried to present that product to their fans during the regular season.

Those are the equivalents of what Major League Baseball sets up every fall. No other sport drags its playoffs out in such a way as to completely change the playing field—completely change the dynamics of its game.

Why Does Baseball Do This?

MLB does this because the TV networks want to drag out the games so that they can try to have one game each day This requires an unnecessary staggering of games, and creates the phenomenon of 15 off-days in a month.

What about travel days?

What about them? Baseball has travel days constantly. A team may play in Chicago one day and in Miami the next, or in New York one day and Phoenix the very next day. Travel days as a routine part of the game are again, a phenomenon of television, and stretching out the playoffs.

In years past, travel days were employed only when necessary. The famous "subway series" games were played on seven consecutive days. Why? Because there was no "travel day" required to go from Brooklyn to the Bronx. Today, they would put in artificial travel days.

Even fairly long train trips didn't necessarily matter. The 1948 World Series between the Cleveland Indians and the Boston Braves was played in six consecutive days, October 6 & 7 in Boston, October 8, 9 & 10 in Cleveland, and October 11 back in Boston.

This reflects actual baseball, the way the teams play day-in and day-out, and the kind of unique test that baseball presents to its athletes, its managers and management, and to its fans.

In the modern world of charter planes, teams fly from coast to coast to play games on consecutive days. The artificial "travel day" should be eliminated so that teams can play in the playoffs in the same way that got them there in the first place.

*All these leagues also have pre-seasons and training camps, which add an additional 6-8 weeks to each player's year.

Email us with your feedback, comments, questions and ideas.

The High-Risk Insurance Pool Betrayed by its own Lawyers? Why is the New Mexico Medical Insurance Pool Suing the State Auditor? Reason: It appears that Michelle Lujan Grisham and the High-Risk Pool Hid Campaign Contributions.

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