Cover Illustration by by Rick Sealock
Earlier this fall, the US Department of Transportation released a report that indicates New Mexico, in figure after figure, is a dangerous place to drive. The state has a crash rate that is 63 percent higher than the national average , more traffic fatalities per 100,000 people than any other state in the Southwest and an overall ranking as the 11th most deadly place to drive a car.
DWI, despite years of legislation and discussion, remains a state staple.
Battling DWI has taken a variety of approaches, from ignition interlocks and ankle bracelets to impounds and checkpoints. But one approach is simple and nontechnical, and works for all driving-related infractions: Prosecute offenders to keep them from driving.
The trouble is, it’s not so simple. For many years, drivers have slipped through the cracks opened by shoddy record keeping and, as a result, poor prosecution.
The key to the ongoing problem lies in the state's Byzantine and error-prone record system.
As recently as 2002, all police citations were written by hand, mailed to the courts and the Motor Vehicle Division by the US Postal Service, and entered manually into a variety of databases. The error rate for data entry alone is between 5 and 10 percent, according to Administrative Office of the Courts Chief Information Officer Steve Prisoc.
In 2002, the Department of Transportation conceived of a multi-pronged solution. All of the driving records data would be assimilated into one database to provide a simple panoramic view to police, courts, state agencies and prosecutors, thus allowing police to issue citations more easily, clerks to avoid human error in tracking those citations and, finally, prosecutors to prosecute.
DOT Chief Information Officer Bob Ashmore says TraCS would remove citation disincentives for police officers.
To begin, the DOT decided that police departments would adopt a technology developed in Iowa called Traffic and Criminal Software (TraCS), which would let police officers use computers in their patrol cars to check off the citations and instantly include them in and compare them to drivers' records. This way, DOT Chief Information Officer Bob Ashmore says, the laborious disincentive for officers not to cite drivers disappeared.
“It takes a lot of time to fill out those forms and, if you have to do more of them by hand, you’ll pick the easiest ones,” he says. “Just my common sense would tell me that. Now, it’s easy. You just push another button and collect another citation.”
To spearhead the new technology, the DOT in 2004 hired a local IT company, Albuquerque-based Bency & Associates, to develop a pilot and roll it out in six law-enforcement agencies around the state, including the Doña Ana County Sheriff's Department and the Santa Fe County Sheriff's Office.
"It saves my officers time in writing multiple citations, and they're a little more accurate," Santa Fe County Sheriff Greg Solano says. "I would call it a success."
So did the DOT. Police found the system easier than the paper-and-pencil method, and courts found the new forms printed from officers' computers more legible. The forms were printed out and mailed in to the relevant agencies.
In 2006, after the completion of the pilot program, the DOT decided to take TraCS statewide to all police departments.
Its plan was to use a so-called Statewide Traffic Records System to automatically assimilate all the data from TraCS and send them directly to agencies. STRS had been originally conceived when the DOT decided to implement TraCS and— after six years of meeting after committee meeting , drafts of schematics and then more drafts—it finally had an idea of what it wanted.
In 2008, DOT put out a request for proposal (RFP). Five firms bid for the contract and, based on criteria for experience, plan and cost, Bency won the contract and began the process of taking TraCS statewide with plans to integrate it with all relevant state agencies.
The contract was for $2 million per year —with the option for an extension. Had all gone as planned, the project would be finished by now, Bency & Associates CEO Elizabeth Bency says.
Instead, Bency is trying to get the contract money in court. In July 2010, the company filed a lawsuit alleging that the DOT impeded Bency from performing the work, that DOT owes Bency money for the work that was done and that two years remain for the company, and that DOT brass forced Bency to keep on an unwanted employee. In September, DOT terminated the contract.
The resolution of the lawsuit rests on a variety of technical facts related to the contract. The story behind the lawsuit reveals larger concerns about a large state agency with a history of problems. “It was such a mess,” Elizabeth Bency says. She sits at the conference table of the Domenici Law Firm—the namesake belongs to Pete Domenici Jr., the former US senator’s son and failed 2010 Republican gubernatorial candidate—which overlooks downtown Albuquerque in mid-afternoon. Behind her, the banister below the window is flanked with reflective awards given to Pete Domenici Sr. Across from her, Charles Lakins, a lawyer on the case, sits. Bency, donning a pinstripe pantsuit and magenta shirt, tells the story in a hushed tone that bears almost maternal concern.
Traffic and Criminal Software (TraCS), developed in Iowa, simplifies the citation process for police officers.
In its lawsuit against the DOT, Bency & Associates alleges that, after a spat between DOT brass and Elizabeth Bency, DOT handed work over to another contractor and limited what Bency could do in the scope of the contract. Specifically, the suit alleges that Traffic Safety Bureau Director Michael Sandoval and TSB Staff Manager Sandra Martinez “threatened” Bency with the loss of the contract if she fired an employee she no longer wanted on the payroll.
Neither Sandoval nor Martinez would comment for this story.
Before the pilot project for TraCS, Bency had a price agreement with the state, under which, for projects of less than $200,000, the company had a fixed rate and was considered a go-to IT firm. In other words, if the state needed an IT project, Bency was one of a small handful of IT firms allowed to bid for the job.
The price agreement allowed the company, over the past nine years, to rack up 162 projects for the state at numerous agencies. It also allowed Bency to receive the contract for the pilot program, since it cost less than $200,000.
After it received the contract to take the state driving records project statewide, Bency commenced with the work. At Elizabeth Bency’s side was an employee she believed could help make the project a reality. Instead, she says, he became the sticking point between her company and the state.
In 2004, as she prepared to launch work on the TraCS pilot project, Elizabeth Bency was searching for a new employee to expand her growing business in the public sector. She called Michael Archibeque to look for recommendations.
At the time, Archibeque worked in the courts' Judicial Information Division, designing a DWI records system that had, the year prior, won a best practices prize from the Association of Transportation Safety Information Professionals. He knew government. According to Bency, Archibeque was interested in her open position.
"We had many conversations, and he said, 'I can open up this state, that state,' all these promises of what he would do," she says.
Bency was sold. She hired Archibeque as vice president of government relations. According to one DOT employee, Archibeque "was probably one of the architects for the whole vision of [STRS]." In his time at the company, Archibeque frequently lead committee meetings for the design and implementation of the program.
But Bency doesn’t buy that. She says now that Archibeque didn’t pull his own weight , and that the promises of expansion into new states never came. She speaks poorly of his work, saying that it “wasn’t the quality of Bency.”
By the time the STRS project started in 2008, Bency says she was ready to fire Archibeque, and approached Sandoval.
"I was told, 'We are doing business with you because of Mike Archibeque.' And I said, 'Wait a minute. I was doing business with you before I hired the guy.' And I said, 'Are you saying that, if I let him go, you're going to end and cease all my work right now?' And he said, 'Yeah.'"
Or, in the words of the lawsuit:
“When Plaintiff considered terminating its employee Michael Archibeque, Michael Sandoval and Sandra Martinez threatened Plaintiff with the loss of current business.”
Archibeque, reached on his cell phone, says, “I’m probably very key and instrumental [in the case], and I could tell you a lot, but I probably shouldn’t. I haven’t really been given the opportunity to tell my side of the story.” He declined to comment further.
Pete Domenici Jr., whose firm represents Bency in court, is a failed gubernatorial candidate and son of former US Sen. Pet Domenici.
Eventually, in March 2009, Archibeque was let go. And, in a sense, so was Bency: Elizabeth Bency says the DOT stopped giving her work orders mid-phase. Bency says she continued to get calls from agencies around the state, but that "at some point, I have to say, the work ceases."
For Archibeque, the work didn’t cease: Shortly after he was laid off by Bency, he started his own firm , MA Strategies, in Algodones.
Bency claims Sandoval, even when Bency & Associates' contract was still valid, gave a contract for STRS work to MA Strategies, without an RFP.
In a motion for a deposition, Domenici requests the DOT provide any contracts entered into between MA Strategies and the DOT. The DOT filed a counter motion to deny the deposition, and no one from the department has yet been deposed.
But records from the DOT obtained by SFR show that MA Strategies received a $250,000 contract in October 2009 for work on the Commercial Motor Vehicle Project, a project intended to enhance the reporting of car crashes throughout the state (Bency also bid on the contract). There were no contracts between MA Strategies and the DOT for the system Bency worked on, according to the records reviewed.
But the Commercial Motor Vehicle Project was encompassed by the STRS project. The latter lays out the creation of a system to handle “all” electronic traffic data; the former is simply a part of the project. Yet while the plan for the STRS is laid out in detail on the Traffic Safety Bureau’s website—with plans and revised plans and detailed schematics— the Commercial Motor Vehicle Project isn’t even online. Even Ashmore, the IT chief for the DOT, says, “The RFP went out and was awarded [to Archibeque] before we even heard about it.”
Archibeque has until September 2013 to finish the job. Even before the issues with Archibeque alleged by Bency, there were signs of problems with the contract. Those problems begin on the top of page 6:
"THIS AGREEMENT SHALL NOT BE EFFECTIVE OR BINDING UNTIL APPROVED BY THE DoIT."
There aren’t a lot of sentences inscribed in screaming capital letters in the contract, but that is one of them. The contract was ultimately signed with every required signature except that of the DoIT, or Department of Information Technology, which oversees the state’s IT systems. And instead of getting the DoIT (referred to as “do it”) to just sign the contract, the DOT spent a year and a half figuring out if DoIT had to sign it in the first place.
Linda Atkinson, executive director of the DWI Resource Center, doesn’t believe TraCS will ever be fully implemented.
It never did. On Jan. 25, 2010, DOT Deputy General Counsel Javier Lopez emailed Ashmore and other DOT officials and told them that the contract with Bency was final, even without the DoIT signature, and that that approval was reserved for specific task orders.
"In our discussion last week," he wrote, "I stated that NMDOT already has a binding contract with Bency and Associates that we can use to begin work."
He went on to write that the effective date of the contract was when everyone else had signed it—a year and a half prior.
A DoIT spokeswoman tells SFR the department normally only reviews contracts of more than $50,000, and would not discuss the specific Bency contract due to pending litigation.
“We put that signature line there, but DoIT said they did not need to sign it,” Lopez tells SFR. When asked why the department didn’t just sign it and clear up the confusion, whether or not it thought it had to, he says only, “I really can’t answer that. Not that I don’t want to, but the history in this is very complex.”
Complex, indeed. The implicit argument of Bency's suit is that because of the simmering tension between Bency and Archibeque—and his imminent firing—the DOT found a way to make the contract retroactively valid. In other words, instead of activating the contract from the moment everyone at DOT decided that the DoIT signature was unnecessary, it decided that the activation date was in September 2008, when everyone else had signed it. That allowed the DOT to terminate the contract at the end of the two-year period.
Which it did.
On Aug. 26, 2010, DOT Cabinet Secretary Gary Girón (who would not comment for this story) sent Bency a letter terminating the contract. Domenici wrote back telling him that his “notice of termination…is rejected.” By then, though, termination was, for all practical reasons, moot; the work had stopped months before.
In September, Domenici filed a motion for summary judgment (in which the judge renders a decision without a trial) to decide if the contract is valid. That decision is still pending. Lakins says there is no talk of settlement.
Had the alleged altercation over Archibeque, the contract termination and the year’s worth of back and forth of the DoIT signature never ensued—by Bency’s account—all systems would be green, and “New Mexico would be up and running with a system ready to go.”
Instead, police departments with TraCS continue to print out their forms and send them into courts and state departments.
"To my knowledge, no one has given up on that, but they've concentrated on getting police agencies up and running on TraCS," Prisoc, from the state Administrative Office of the Courts, says.
For police officers in most of the state, issuing citations still requires the completion of this cumbersome form.
Getting police hooked up with TraCS was the task at hand for Elizabeth Bency when the work stopped. Had the contract continued normally, she says, "Everything would be done by now."
For now, the STRS is far from finished and the DOT has given no indication that it intends to complete it.
“In a sense, it’s a pipe dream that I don’t think we’re ever going to see realized,” Linda Atkinson, executive director of the DWI Resource Center, says. “The bottom line is where is the information now, and how is it helping when we talk about these repeat offenders?”
Nor is the Bency contract the DOT’s only legal problem. Last week, as reported by the Albuquerque Journal, 1st Judicial District Judge Sarah Singleton ruled that the DOT had violated both state procurement and public records laws in an un-related $40 million roadwork contract.
But not everyone has given up on the dream of statewide coordinated driving records. Prisoc says the courts are considering hiring the University of Alabama, which has developed a data distribution system similar to that of TraCS, to implement a system here. It would essentially do what the DOT promised.
“We’re kind of in the planning stages on that,” he says. SFR
