Copyright 2017 Albuquerque Journal
Albuquerque Journal (New Mexico)
The private attorney of the University of New Mexico's former athletic director reviewed, and removed, emails his client wrote on the school's public server even before the university's legal council looked at the documents that were requested by the Journal.
The Journal filed an Inspection of Public Records Act request in August with UNM, the legal custodian of the documents, seeking to review emails written by Paul Krebs on his university email account. Krebs retired as athletic director in June, though the requested emails covered a period before and after his employment, because he has continued using the account since his retirement.
UNM says it feared it might violate Krebs' attorney-client privilege if it reviewed the emails, so it first handed them over to Gene Gallegos, a former UNM regent and Santa Fe attorney now representing Krebs, to determine whether he considered any of them protected by attorney-client privilege.
"As the batches of emails were being reviewed for the IPRA response, it was noticed that some of the emails were between Paul Krebs and his attorney," said UNM's chief marketing and communications officer, Cinnamon Blair. "As not to violate attorney-client privilege, his attorney was given the opportunity to review and remove any emails that would fall under that attorney-client privilege. There is no way for anyone at UNM to sort them without risking violating attorney-client privilege."
The university did not log what emails it sent Gallegos to vet, so there appears to be no way of knowing what was removed from the batch of emails, beyond the honor system.
That UNM gave all the emails to Krebs' attorney is a clear violation of the state law on inspection of public records, according to the New Mexico Foundation for Open Government.
"UNM ultimately has the obligation to comply with the Inspection of Public Records Act. They should have at the very least segregated out all the emails that they believed could be attorney-client privilege," said FOG Executive Director Peter St. Cyr.
UNM said it gave all emails written by Krebs in the period covered by the Journal's request to Gallegos, not only ones addressed to him.
That is not the norm, neither for UNM nor in the recollection of FOG's experience when dealing with other similar requests around New Mexico.
"This is not standard," Blair told the Journal, but necessary in UNM's eyes, "based on the circumstances of the information in the responsive documents being subject to attorney-client privilege."
Gallegos told the Journal the only emails reviewed or removed by his paralegal, who went through the emails, were "anything that was between Paul and I."
St. Cyr questioned whether attorney-client privilege is allowed because the emails "were generated on a public email system by a public employee." He noted this "is a difficult one" in that IPRA does allow for attorney-client exemptions, but "because UNM owns the emails, it shouldn't permit the client's attorney to insert himself into the process."
The August records request was delivered to the Journal in nine sections, the last of which was released just last week. It is unclear how many emails were withheld by Gallegos.
"We have not done an inventory of the exact number, but it was not a large number," Blair said.
According to UNM's "Policy 2500: Acceptable Computer Use," UNM employees understand that their emails are public. The last line of that policy's section on privacy limitations reads: "Therefore, all employees are urged to use the same discretion and good judgment in creating electronic documents as they would use in creating written paper documents."
Discovery over the past seven months of potential financial mismanagement by UNM athletics, including Krebs' admission that he used public money to pay for donors to attend a fundraising golf junket in Scotland in 2015, has led to three state agencies launching separate inquiries. The New Mexico Attorney General's Office is looking into possible anti-donation clause violations by the university and concerns about a heavily redacted document released to the Journal in April that would have revealed wrongdoing had it been properly released.
A spokesman declined to say whether Attorney General Hector Balderas' office is looking into UNM's compliance with IPRA, citing the "ongoing investigation" Balderas launched earlier this year after revelations that the university used public funds for some private donor expenses on the trip to Scotland.
Among the information revealed in the Journal's review of Krebs' emails:
Krebs instructed multiple employees of his to "Delete this email" so media members would not obtain a copy, but forgot himself to delete the email. It is unclear whether other emails were deleted.
The former AD drafted a retirement letter on May 7 to UNM Interim President Chaouki Abdallah indicating he knowingly withheld information about paying for donors to attend the Scotland golf trip with public money to "protect" them from media scrutiny. His final, official, retirement letter did not mention it.
The Lobo Club and Krebs were at odds in late April over who should be taking the heat for the Scotland trip. Upon reading a draft version of a letter to the Lobo Club board of directors about the Scotland trip, Krebs wrote on April 26 to Larry Ryan of the UNM Foundation and Kole McKamey of the Lobo Club, "We have always acted as a team. In this together attitude. As an example I took significant hits for a bad lobo club audit several years ago. I didn't distance myself or seek to justify my role. I stood with the lobo club thru that time and we stood united together.
"This Letter like the previous one today attempts to clear the Lobo Club/ Kole and doesn't really address the larger issue of the story. I believe any letter sent should explain the entire rationale for the trip including not only the lobo club role but athletics role and our collective justification for going and the expenditure of funds regardless of the source.
"To do anything other than that sends us down a road of real separation and not working in unison.
"Are we in this together or not?"
Krebs hired a private public relations firm to listen in on at least one phone interview with the Journal discussing his work. That firm confirmed to the Journal last week that it worked with Krebs, and not UNM, around the time of his retirement. UNM said it does not have a policy about third parties listening into employee conversations conducting university work.
Krebs has not responded to questions emailed to him by the Journal in recent weeks.
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