If it smells like pay to play and looks like pay to play, it probably is pay to play–and it’s possibly illegal.
We are referring to endlessly controversial contributions to Susana Martinez and her Susana PAC from Downs at Albuquerque majority owners William Windham and John Turner.
After receiving the money, Martinez awarded them a 25-year billion dollar-plus contract.
New information shows that this deal not only stinks, but might very well be illegal. If so, the contract would have to be terminated. In 2006, Senator Dede Feldman authored SB 0344, which was signed into law by then Governor Bill Richardson. The law states:
“No campaign contribution or other thing of value shall be given by a prospective contractor or a family member or representative of the prospective contractor to an applicable public official or the applicable public official’s employees during the pendency of the procurement process or during the pendency of negotiations for a sole source or small purchase contract.”
The key phrase here is “pendency of the procurement process or during the pendency of negotiations for a sole source or small purchase contract”.
The pendency of the procurement process starts with the public posting of the RFP.
In an email ISPAC obtained through an IPRA request dated June 30, 2011, Dan Mourning, the Deputy Manager of Expo New Mexico wrote the following to Ryan Cangiolosi, Martinez’s Deputy Chief of Staff:
“The RFP is set with a posting on July 5th, but to do this we have to post in the paper Sunday paper (sic) which has a deadline of 12:00 noon today.”
As ISPAC previously reported, on 7/7/11 SunRay Gaming of New Mexico contributed $5,000 to Susana PAC, just two days after the scheduled posting date for the RFP. Under SB0344, this contribution would be illegal if it came after the posting of the RFP.
Windham and Turner are, in their own words, “currently members and the co-Managers of SunRay Gaming of New Mexico, LLC which owns and operates SunRay Park and Casino located in Farmington, New Mexico”.
Coincidentally, the Martinez Administration delayed the posting of the RFP until after this contribution. As was also previously reported, Windham and Turner may not have disclosed this contribution as required by law, in their response to the RFP.
But delaying the posting may not have been enough to keep things within the law.
ISPAC has reported that the New Mexico State Fair Commission was set to vote on a contract between the Downs and the State Fair on 12/28/2010. Instead, the commission ruled to “leave a decision on a new lease for the Downs of Albuquerque Racetrack and Casino to the administration of Gov-Elect Susana Martinez.”
Leaving the decision to Martinez meant that the lease, which was a sole source contract, was still pending. Two days later, on 12/30/2010, Windham and Turner gave Martinez $5,000 through their company, Brazos Land and Cattle.
Martinez hired Dan Mourning as the Interim Director of the State Fair/Expo NM on 2/28/11. Mourning then began negotiating a one-year extension (sole source contract) for the Downs at Albuquerque. Mourning appears to have used part of the agreements previously negotiated by his predecessor at Expo NM.
On 5/6/11, Windham and Turner gave another $5,000 through Brazos Land & Cattle to Susana PAC.
On 6/1/11 Dan Mourning signed a one-year lease extension (sole-source contract) stating that the extension, “continues a revenue stream that we are in desperate need of to stay afloat out here, until we can figure out what will be the long-term future of, not just the Downs.”
On 6/14/11 Martinez announced that she would put the lease extension on the call of the special legislative session in order to get approval. Despite her statement, Martinez did not put the lease extension on her special session proclamation.
On 6/17/11, Mark Shoesmith, an attorney for the Department of Cultural Affairs that oversees Expo NM, emailed Ryan Cangiolosi that he had a draft prepared of the RFP for the State Fair. Shoesmith offered to “print out the entire RFP with appendices” and to bring them to Cangiolosi’s office. Cangiolosi replied, “thank you Mark”.
On 7/7/11 Windham and Turner gave Susana PAC the $5000 contribution through Sunray Gaming.
On 7/24/11, Mourning issued the RFP, leaving the lease extension still pending. According to an ABQ Journal article by Charles Brunt entitled “State Fair Seeks Bids for Downs”, “Blanchard and his two Louisiana partners are seeking a third one-year lease extension on the original 25-year lease.”
On 9/16/11 Susana Martinez attended the Junior Livestock Sale at the State Fair along with William Windham. Martinez and Windham sat together at the main table and Windham bid on several animals. This event occurred after Windham had already submitted his response to the RFP and before the selection committee, personally chosen by Martinez, chose the Downs as the winner of the RFP.
It’s one thing for a politician to socialize with a contributor. But it is another thing altogether when that contributor stands to benefit from that politician’s decision on a pending RFP process.