Still in his first year on the job, Attorney General Hector Balderas says he was most surprised when he took office to learn “how few resources were being devoted to protecting children in New Mexico.”
Balderas says he’s working to change that by pushing legislation to close a “horrific child pornography loophole” and seeking additional funds for the Internet Crimes Against Children Task Force.
In an extensive interview conducted by email, Balderas, a Democrat, answered questions on topics ranging from crime and water to government transparency and corruption.
The attorney general, who recently filed criminal charges against Secretary of State Dianna Duran, a Republican, promised to “aggressively prosecute acts of fraud and corruption regardless of party affiliation.”
Violations of OMA are misdemeanors that can be punishable with fines and even possible jail time — though no one in the state’s history has faced jail time for violating the act. Balderas said his prosecutors “are trained on upholding the rule of law” if necessary.
And Balderas said the Legislature should update both sunshine laws to include “mandatory training, fines, and targeted penalties that actually address the nature of each individual offense.”
As for the political questions, Balderas, who’s often mentioned as a possible 2018 gubernatorial candidate, didn’t directly answer when asked if he’s considering running for governor. As politicians tend to do, he instead said he’s “focused on serving New Mexicans as their attorney general.” Balderas unsuccessfully ran for U.S. Senate in 2012, and he said he’s not considering running against for a seat in the U.S. House or Senate in the future.
Here’s the full interview, with questions in bold and Balderas’ answers immediately following:
You’ve been on the job for several months now. What have you found to be most surprising about it? What have you found to be most challenging?
Upon taking office, I was most surprised to find out how few resources were being devoted to protecting children in New Mexico. As attorney general, my top priority is keeping New Mexico families safe, and I will keep doing everything I can to increase financial support for this cause. My office is working with a bipartisan group of legislators to close a horrific child pornography loophole in current law in order to ensure that the punishment fits the crime for individuals in possession of child pornography. Additionally, I am expanding the work of the Internet Crimes Against Children Task Force (ICAC) unit within my office, which conducts investigations and provides trainings for law enforcement and other groups.
You talk a lot about the problem of child pornography in New Mexico. How big is the problem and what are you doing to combat it?
Current estimates indicate that at any one time in New Mexico, there are 8,000 active leads on individuals trading child pornography. My office will continue to work with legislators in order to close the harmful loophole in our existing statute that says a defendant charged with possession of child pornography — irrespective of how many images he or she possesses — is only subject to prosecution of one count of child exploitation by possession. And as I mentioned, we will continue to support increased resources for the Internet Crimes Against Children (ICAC) unit.
How much of any increase in funding are you seeking for the Internet Crimes Against Children unit? Are you seeking any other increased funding for protecting children? Have you redirected any funds already allocated to your office for such efforts? If so, can you provide details?
The Office of the Attorney General is requesting funding for a mobile digital forensic lab to be used statewide. This fully equipped lab will cost $227,000. In the future, we also plan to request funding for two additional law enforcement investigators that will have statewide jurisdiction – salary $65,000 + (benefits) $23,665 = $88,665 x 2 = $183,994 per year.
Crime is a significant problem in New Mexico. In Albuquerque alone there have been a number of horrific violent crimes recently. Relatively frequent police shootings are also a reality in New Mexico. What can be done to address both issues, and how do you plan to contribute to solutions?
According to FBI statistics, New Mexico is the second most dangerous state in the country and number two for violent crimes. Our criminal division is targeting high-risk offenders and our policy team is focused on implementing harm reduction strategies and increasing services for victims. In addition, we recently convened the Multidisciplinary Violent Crime Review Team, bringing together 25 local, state, and federal agencies to conduct a comprehensive review of the effectiveness of our system responses, from social services to judicial system. The Review Team will issue a report in 2016 detailing identified system gaps and proposing reforms needed to make our communities safer. We are also empowering citizen advocates to partner with us in order to fight for reforms in the justice system.
The previous attorney general didn’t have a strong record on prosecuting Medicaid fraud. How will you improve the state’s prosecution of Medicaid fraud and recovery of public money that’s misused?
We are aggressively investigating instances of Medicaid fraud and elder abuse. For example, we are currently pursuing claims against one of the largest nursing home companies in the country to recover funds for taxpayers and improve conditions for New Mexico residents. I’ve also created the Fraud Recovery Strike Force in order to proactively recover funds for New Mexico taxpayers, which includes Medicaid funds. In order to undertake these efforts, I have fully staffed my office’s Medicaid Fraud and Elder Abuse Division and put in place new leadership. During the upcoming legislative session, we intend to propose improvements that will provide my office with the tools it needs to leverage resources to the fullest extent in order to recover more taxpayer dollars.
Can you provide any details about the “improvements” you intend to propose?
We plan to propose legislation that would allow the Office of the Attorney General to pursue claims under the Medicaid False Claims Act with concurrent jurisdiction. The statute currently only allows Human Services Division to bring a claim.
You’ve sped up investigation of the 15 behavioral health agencies the Martinez administration accused of “credible allegations of fraud” in 2013, but those probes are immense and still taking significant time. How do you plan to resolve the situation?
The Medicaid Fraud and Elder Abuse Division is still actively conducting investigations related to the fifteen referrals. We have also retained a national forensic audit firm and given them the mandate to expeditiously complete pending investigations within six to eight months of the award of the contract.
How much time do you anticipate needing to conclude these investigations?
The forensic audit firm has been given a mandate to expeditiously complete pending investigations within six to eight months of the award of the contract. We anticipate the conclusion of the investigations within this time frame.
To date, most of the 15 health organizations named in the Human Services Department (HSD) audit whose cases have been resolved have been cleared of fraud, though an amount of overbilling smaller than originally alleged has been identified in several cases. Is there any recourse for those agencies that are cleared of wrongdoing? Do you believe they should have their contracts to provide behavioral health services reinstated?
We are focused on expeditiously completing the investigation in order to allow for any subsequent actions — including potential reinstatement of providers by the Human Services Department (HSD) — to occur as soon as possible. However, once the investigation by our office is complete and referrals to HSD have been made, it will be up to HSD to make determinations regarding potential reinstatement of providers’ contracts.
Government corruption has been a significant problem in New Mexico in recent times. Some believe our recent state attorneys general lacked the courage or wherewithal to prosecute big corruption cases. How will you approach investigation and prosecution of allegations of corruption in state government – especially if they involve members of your own political party?
I have created a robust prosecution unit committed to upholding the rule of law. My approach is to aggressively prosecute acts of fraud and corruption regardless of party affiliation.
You recently filed charges against Secretary of State Dianna Duran. Without revealing confidential information about investigations, can you disclose how many other public corruption investigations your office has open, if any? Can you disclose details about any others?
Attributable to James Hallinan: “The Office of the Attorney General is focused on preparing for the preliminary hearing in this matter. We do not have comment beyond the information that has been filed with the court.” (Editor’s note: this is the only response in this Q&A not attributable directly to Balderas.)
The Attorney General’s Office is involved in a number of lawsuits related to the adjudication of water rights – both between parties in our state and between New Mexico and Texas. Can you talk about the importance of these cases to New Mexico’s future – its ability to sustain our economy and our people’s lives?
Keeping our water clean and protecting surface and ground water rights is critical, not only to protect New Mexico’s economy, but also to maintain public health and safety. We will continue to work in cooperation with the state engineer and the Environment Department to protect our water from both internal and external threats.
Now that you’re in charge of the agency that teaches compliance with and enforces the Open Meetings Act (OMA) and Inspection of Public Records Act (IPRA), how widespread a problem do you think noncompliance is among local and state government agencies in New Mexico? Is noncompliance more often caused by a desire for secrecy or ignorance of the law? What can be done to improve transparency?
Since January, my office has received an average of 12 referrals a month for alleged violations of both acts. Often, violators of these laws simply do not understand their proper application and are unaware of how to act in full compliance. For this reason, my office is placing an emphasis on educational and outreach efforts in order to achieve consistent compliance statewide. IPRA and OMA are the first line of defense in reducing corruption, waste, and abuse. Therefore, ensuring compliance is the best approach. Members of the Open Government Division of my office are offering full-day, comprehensive trainings on a monthly basis in various communities across the state on both laws. I am pleased that our trainings so far in Valencia County, Sierra County, and Los Alamos County have been very well attended and I assume the trend will continue at our upcoming trainings in Clovis, Grants, Las Cruces, Alamogordo, and Roswell. My hope is that as more trainings are offered, the occurrence of violations will decrease.
If you find more intentional violations of the Open Meetings Act by public officials or bodies who do understand the law, are you willing to bring criminal charges to enforce the act?
The emphasis should be on preventative measures such as training and understanding the act; however, on a case-by-case basis my prosecutors are trained on upholding the rule of law.
Violators of the Open Meetings Act can be charged with a criminal misdemeanor, though it’s rarely been done. There’s no criminal penalty for violating the Inspection of Public Records Act. Do you believe OMA violators should more frequently be hit with criminal charges? Why or why not? Do you favor implementing a criminal penalty for IPRA violations? Why or why not?
The Legislature needs to modernize penalties for OMA and IPRA violations which should include mandatory training, fines, and targeted penalties that actually address the nature of each individual offense.
Say more about what you mean by “targeted penalties?” Are you saying some IPRA violations, like OMA violations, should be punishable as crimes? Should IPRA violations be considered misdemeanors like OMA violations are currently? Do you believe some IPRA and OMA violations should be considered felonies? Should all be punishable only by possible fines, or should any potential violations include prison time or other penalties?
The Legislature should consider criminalizing the intentional destruction of public records with intent to advance a crime in parity with tampering with public records.
You’re often mentioned as a potential Democratic candidate for governor in 2018 — if not the frontrunner for your party’s nomination. That would be at the end of your first term as attorney general. Are you considering running for governor?
Right now, I am focused on serving New Mexicans as their attorney general and implementing the final phase of transformation at the OAG to help make New Mexico a safer place for children and families. I find it unacceptable that New Mexico is the second-most violent state in the country, that a harmful child-pornography loophole still has not been fixed in the New Mexico Legislature, and that New Mexico is one of three remaining states that still has not passed a consumer protection data breach notification law for its citizens. Last month, I convened the Multidisciplinary Violent Crimes Review Team made up of community leaders, cabinet secretaries, district attorneys, defense attorneys, judges, sheriffs, police chiefs, educators, and 25 agencies to assess failures in our justice systems. They will recommend and implement meaningful reforms to improve the safety of our children and families in New Mexico.
You’ve run for U.S. Senate in the past. Are you considering running for a U.S. Senate or House seat in the future?