[NOTE: Because the Las Cruces Sun-News was late to post this column on its website this morning, I am making it available to those apt to turn from its website to mine.]
Earl Nissen’s lawsuit against Dona Ann Community College, New Mexico State University, and the Regents, if pursued to its conclusion, promises to be an eye opener, if not a game changer. After his long, distinguished career as a teacher at DACC and NMSU, Nissen’s lawsuit may be his greatest service to these institutions and the public. It will be so because it will be unlike other lawsuits against them.
Full disclosure: I know Nissen and Peter Goodman, one of his lawyers. Nissen and I served on the high-school redistricting committee several years ago. Goodman, I, and our wives occasionally socialize. But many others know these two men better than I do—a fact which explains why so many local judges cannot preside over the case.
Nissen’s case distinguishes itself from other cases against the three defendants for several reasons. First, Nissen is not using litigation, as many locals do, to make money. His request for over $25,000 looks like an estimation of lost salary from the reduction, then elimination, of his teaching assignments from his previous course load and over a reasonably projected period of continued teaching. His request for reimbursement of the costs of litigation is entirely reasonable. All in all, because the money seems almost immaterial, an out-of-court, cash-and-confidentiality settlement seems unlikely.
Second, Nissen’s motive appears to be one of principle, even of his Constitutional right to speak freely, not surrendered by his status as an employee or teacher in a public college. Nissen is relying on a recently passed law protecting whistleblowers. However, the facts suggest that he did not mean to be a whistleblower; they suggest that he meant to make a constructive suggestion to fill a faculty vacancy, to offer distressed students helpful advice on their choices after DACC’s nursing program lost national accreditation, and to report his concerns to an accrediting agency. Such positive motives will be hard to question.
Third, Nissen is not a callow youth, a foreign student, or a job-dependent employee without resources whom the university’s lawyer Bruce Kite can outspend, intimidate, or discredit. Indeed, any strategy to smear Nissen, someone long known and respected for successful teaching and civic involvement, will boomerang. So the defendants are going to be hard-pressed to find a strategy to deal with the plaintiff.
These considerations suggest a very different kind of lawsuit. First, it will go to trial. Second, before it goes to trial, it will involve pre-trial procedures like discovery of all relevant documents and disposition of all relevant witnesses. What these procedures mean is that much which has been hidden will be revealed. For the first time, the highest (former) officials, among others, at DACC and NMSU will be compelled to provide information about their involvement in dealings with Nissen. Regardless of contractual or other arrangements made to ensure secrecy, the court can and will override them. Thus, under oath, not in public session before the regents or in interviews with the media, Margie Huerta will have to explain her role while president in Nissen’s reduced, then eliminated, teaching assignments. Thus, under oath, not behind closed doors in negotiations with the regents, Barbara Couture will have to explain her response to Nissen’s advisory letter. In the course of giving testimony, both Huerta and Couture may have to explain something about the nursing program fiasco—and provide valuable information for the lawsuit by eight DACC nursing program students.
At some point, the one, the other, or both lawsuits will expose the contumely, incompetence, and corruption of the highest officials at these institutions. The disclosures will confirm much, if not all, which has been alleged or suspected of Huerta, Couture, and the regents. One, Huerta withheld, misrepresented, or lied about critical nursing-program-related information. Two, Couture operated in ignorance or, of indifference to, the mismanagement of the program. Three, the Mike-Cheney-led Board of Regents struggled to contain and conceal information damaging to both institutions and their leaders under his oversight. Four, Cheney gave Couture nearly a half million dollars in hush money so that she would not spill the beans. Five, Garrey Caruthers gave Huerta continued employment in a non-job (fraud, anyone?), with a high salary and a year’s time while she looked for another position, so that she would not point fingers.
But the exposure will not stop here. People will see unsavory official responses to the nursing program fiasco. Michael Morehead led an investigation to cover up the facts and causes of the nursing program fiasco. NM Board of Nursing disregarded its standards to re-accredit the program. The regents made Carruthers president to ensure cover-ups of this and future fiascos. Susana Martinez tolerated misuse of public funds by her appointments and malfeasance by her administration.
The exposure, even if it does not prompt elected officials to achieve more than their incremental or cosmetic improvements, will serve the public interest by making undeniable DACC’s, NMSU’s, and the regents’ systemic incompetence and corruption.