The State of New Mexico’s statutes on nondisclosure of settlements in civil lawsuits is again coming under scrutiny. The latest scrutiny is in the civil lawsuit settlement agreed to in the estate of nine-year-old Omaree Varela filed against the state Children, Youth and Families Department. The Albuquerque Police Department (APD) was not named as a defendant, but 5 police officers were disciplined with 1 termination because of their actions in the case. The settlement money will be paid to Omaree’s three siblings, one adult and two minors. The amount of the settlement being paid, despite being taxpayer money, is being kept confidential by a District Court Order.
THE MURDER OF A CHILD
On December 27, 2013, 9-year-old Omaree Varela was found beaten to death months after placing a desperate 911 call to APD. Nine-year-old Omaree Varela called 911 from his Albuquerque home 6 months before his death. In the 911 audio recording, the child’s mother and the boy’s stepfather can be heard hurling verbal abuse at the child. The parents were unaware that the 911 dispatcher was listening and recording the exchange. The verbal abuse began after the child accidentally spilled food on the ground. Two APD officers went out to the residence after the child’s 911 call and made several errors that day that may have led to the child’s eventual death. The 911 dispatcher told the APD officers that they should listen to the phone call before going to the home. APD officers never went to the child’s home.
According to police logs, the officers claimed they questioned the parents for two hours. The APD lapel camera showed that the officers were at the child’s resident’s for only 15 minutes. The APD Officers did not write a report in the case with one officer saying he would call the state’s Children Youth and Family Department. No call to CYFD was ever made by either APD Officer.
After arriving to the child’s home to investigate the 911 call, one of the officer’s belt tape has him telling the parents: “You guys seem like a good family. … A decent family. Just be careful what you guys say when you say stuff like that. I am going to overlook it right now.” Six months later, Omaree Varela was dead. 9 year old Omaree had been stomped and beaten to death by his mother. The autopsy report detailed the child’s injuries. The autopsy report said Omaree had lost about 25% of his blood volume through internal bleeding.
Omaree Varela’s mother, Synthia Varela-Casaus, was sentenced to 40 years in prison for second-degree murder after admitting to kicking her son “too hard”, literally kicking him to death. Omaree’s stepfather Stephen Casaus, was sentenced to 30 years in prison for child abuse resulting in death and other charges. The New Mexico Court of Appeals overturned his most serious conviction related to the failure to call for medical help for the dying boy. Stephen Casaus prison sentence was cut to 12 years.
DISTRICT COURT ORDER
In the fall of 2017 and after two full years of litigation, the New Mexico Risk Management Division agreed to settle the wrongful death case. At the time of the settlement, Omaree’s mother and biological father agreed not to seek any of the proceeds. The final order in the case filed in June 2018, states “the proceeds of the Wrongful Death estate shall be divided equally amongst the three children (of Synthia Varela-Casaus).” The beneficiaries are described in the pleading as “one adult child and two minor children…”.
A “Motion to Seal Records” was filed on October 31, 2017 and is in court public records. The motion states that there was an “interest in protecting the settlement of this minor from predation by the public [and that the] parties have agreed to confidentiality as to the amount of settlement as allowed by law.” The “Motion to Seal Records” did not specifically ask the total amount paid to all three beneficiaries be kept secret forever. However, no exact date of disclosure is identified in the court order leading to confusion.
The court order signed by District Court Judge Nancy Franchini states in part:
“[The amount of settlement] shall remain confidential for the period of time allowed by law and the amount and details of the settlement specifically related to the minor child is confidential and shall not be disclosed or made a part of a public record in any proceeding, report or pleading filed with and or by the court in this matter [because of] …a possibility of subsequent proceedings.”
Second Judicial District Court Judge Nancy Franchini also ordered the settlement details and her Court order sealed. A court order sealing a court order sealing the terms of a settlement is extremely unusual to the point of being unheard of by many. State District Judge Nancy Franchini said through a spokesman that she could not comment on the case because there was a ” possibility of subsequent proceedings.”
An attorney in the case described the orders as possibly an “error” and that the court order applies to the share amount paid to one of the siblings and not the total amount paid to all three. It is unknown why the order to seal the settlement isn’t public.
INSPECTION OF PUBLIC RECORDS REQUEST (IPRA)
The Albuquerque Journal made an inspection of public request (IPRA) demanding the Risk Management Division (RMD) to produce the settlement documents in the case that would reveal the total mount of the settlement. RMD officials declined the request and told the Journal they could not divulge even the overall amount paid to the three siblings, including the adult child.
General Services Cabinet Secretary Ken Ortiz, who oversee the RMD had this to say:
“We spent some time reviewing [the Journal] request and basically because the judge in this case directed that all information and records pertaining to this request is under a court seal we are unable to provide any documents related to this case. … [My staff checked] with some attorneys and had a discussion with the Attorney General’s Office and everyone seems to agree based on this court ordered seal [the state cannot disclose the records.]”
FOUR DATES APPLY TO NONDISCLOSURE PROVISIONS
Secret settlements made by the state have come under scrutiny in recent months, with state Risk Management officials and some legislators advocating reform of the current law setting out when settlements become public.
When the State Risk Management Division settles a case, it denies any and all wrongdoing, and demands that the settlement makes it clear the State is agreeing to end the case as a compromise or to avoid further litigation costs. This is standard practice in most civil lawsuit settlements and common even in the private sector. The parties usually agree to avoid disparaging each other or speaking about the terms and conditions of the settlement.
The confusion with the Court Order in the Omaree Varela case is the court’s language in the order that the settlement “shall remain confidential for the period of time allowed by law.” There are at least 4 separate dates that could be applied to the case.
Under state law, state Risk Management Division (RMD) settlement terms and conditions cannot be disclosed to the public for 180 days, or a full six months. All too often, because of language and the terms in the settlements, it is unclear which claims have been settled or when they can be released to the public.
When the Order to Seal records is filed under the current law, the timeline for mandatory disclosure is not clear. Current State law provides that the confidentiality period can start on 4 dates:
1. The date the settlement is signed or
2. The date the claim is closed administratively by the state, or
3. The date all litigation is completed or even or
4. The date all statutes of limitations have run on a claim.
EFFORTS TO DISCLOSE SETTLEMENTS TO PUBLIC
During the 2019 legislative session, a bill jointly sponsored Bernalillo County Republican State Senator Sander Rue and Santa Fe Democrat State Representative Linda Trujillo calling for the state to publish settlements in discrimination claims, the agency they were lodged against and the total amount of state money paid to settle the case, including damages and attorney fees. The legislation would have required settlements paid be published on the state’s sunshine portal after a certain amount of time elapsed. General Services Department Cabinet Secretary Ken Ortiz supported the legislation. The proposal passed the New Mexico Senate, but it did not make it through the New Mexico House of Representatives.
Cabinet Secretary for the General Services Department Ken Ortiz announced he is working with staffers to start automatically publishing the state settlement agreements. The goal is to post all settlements online as soon as the legally required confidentiality period of 180 days (6 months) expires. Secretary Ortiz supports clarifying the law that sets the initial 180 days of confidentiality with the goal to precisely define when the 180-day period starts. Ortiz wants to make making it clear the 180 days starts on the day the settlement is reached.
COMMENTARY AND ANALYSIS
The killing of 9-year-old Omaree Varela was in all likely preventable but for the negligence of the State Children and Youth Department (CYFD) and the Albuquerque Police Department (APD). It is shocking the level of incompetence that was involved the Omaree Varela case by both CYFD and APD. What is as surprising is that the City of Albuquerque was not named a party defendant seeing as that one police officer was terminated and 4 police officers were disciplined for the way they handled the case.
Federal wrongful death actions against APD for excessive use and deadly force resulting in death have settled for $3 million and as much as $5 million. Each time the facts and circumstances of the cases are evaluated to determine settlement amounts. The facts that 3 of the siblings of Omaree Varela will benefit from the settlement coupled with the extent of the negligence in the case in all likely means the settlement agreed to in all likely exceeds 6 figures and would be approximately $1,500,000, or $500,000 for each sibling, if not more, perhaps even double, or $3 million total for $1 Million for each child. It is highly likely it will be years before the public finds out what was paid to settle the case. Notwithstanding, the public should not be forced to speculate on the amount of the settlement.
It is clear from not only the Omaree Varella settlement but as well as many other confidential settlements, the Legislature needs to change the law to ensure more transparency as to how public money is spent to settle lawsuits. The public has the right to know how cases are settled and the amounts of taxpayer money being paid.
Governor Michelle Lujan Grisham should issue executive orders mandating that the Department of Finance and Administration (DFA) be given far more authority over the State Risk Management Division (RMD). DFA needs to be given at a minimum some say on the final approval of all settlements negotiated by RMD as well as be allowed to give input on attorneys selected to do defense work for the state and make decisions when the settlement amounts paid can be released to the public.
It is extremely disappointing that the 2019 New Mexico legislature failed to enact the legislation requiring the state to publish the nature of discrimination claims, the agency against whom they were lodged and the total amount of state money used to settle the allegation, including damages and attorney fees. Notwithstanding, even that legislation did not go far enough. The current state law that provides 4 separate dates when the 180 day or 6-month confidentiality period starts to run should be repealed or drastically amended by the legislature and all settlements, no matter the type of case should be made public.
Six months for the public to have to wait to find out the terms and conditions of a settlement is outrageous. In the interest of full disclosure and transparency, all settlements should be posted within at least 30 days if not sooner from the date the settlement is agreed to by the parties. There should be absolutely no confidentiality clauses when it comes to the settlement. It is taxpayer money and the legislature need to act in the interest of complete transparency.
Kudos go to Governor Michelle Lujan Grisham and Cabinet Secretary Ken Ortiz working with information technology staffers to start automatically publishing the state settlement agreements with the goal to post all settlements. What should also be posted on the sunshine portal are the names of attorneys or firms awarded state contracts to defend the state, the amounts of the contracts awarded, the term of the contracts, and the hourly rate being charged.
The settlements are taxpayer money being paid as are defense fees paid to private attorneys. Simply put, taxpayers have the right to know what is paid in settlements, why and to whom, including attorney’s fees.
It appears based on the law, the District Court Judge had no choice but to seal the settlement, but the order sealing the order of settlement was probably not necessary and could be set aside. The General services Administration should file a “Motion To Modify Order To Seal” and request the court to identify the specific date the settlement amount can be made public. Another option would be to secure an agreement from the plaintiff’s to fully disclose the amount of the settlement.