By Phaedra Haywood
The Santa Fe New Mexican
SANTA FE, N.M. — A third Department of Corrections employee is claiming the state agency fired her for questioning the department’s decision to hire a firm she says is politically connected to administer educational tests to prison inmates.
Two other employees made similar allegations earlier this year. Their cases went to arbitration, and each was offered the right to return to work at the department. One accepted and one declined, but both of their complaints under the New Mexico Whistleblower Act are still pending in state courts.
Patricia Brainard on Friday filed her own whistleblower complaint against the Corrections Department, claiming she was fired for raising questions about the hiring of London-based Pearson Vue — and also because she had agreed to testify in one of the other cases against the department.
Brainard’s complaint says she began work as the department’s education administrator on July 6, 2013, and a few weeks later, she told her supervisor — David Huerta, the former director of recidivism reduction — that she had concerns about the implementation of Pearson Vue’s General Educational Development program “and the procurement process thereof.”
“Huerta exploded and yelled” that he had already fired his Adult Basic Education program manager, Catherine Johnson, over concerns she expressed about the GED program, according to Brainard’s lawsuit, and he threatened to terminate or reassign Brainard.
Brainard says in her complaint that she didn’t know at the time that Johnson was appealing her own termination, but a co-worker who had witnessed the confrontation between Brainard and Huerta — “and the yelling and threatening that ensued” — put Brainard in touch with Johnson.
Brainard says she talked to Johnson and agreed to testify in court about what Huerta had said about Johnson’s firing. Brainard also says she told the department’s attorney, Kit Ayala, about her encounter with Huerta and her concerns that she would face retaliation for expressing her reservations about the Pearson deal and for agreeing to testify in Johnson’s case.
According to the complaint, Ayala told Huerta what Brainard had said, and Huerta fired Brainard a month later for “insubordination by attempting to put a hold on the 2014 GED electronic initiative in contradiction to the work directive to implement this directive.”
Pearson Vue is a giant testing firm that also has a $6.2 million state contract to administer standardized tests for public school students. Brainard’s complaint says state Education Secretary Hanna Skandera “serves or served” on the board of directors of Pearson Vue.
But Skandera repeatedly has denied that she is connected with the company. Her spokesman, Robert McEntyre, repeated that denial Tuesday, stating in an email: “Secretary Skandera has never served on Pearson or Pearson Vue’s Board of Directors, nor has she had any professional position or financial interest in their organization.”
A spokesperson for the testing firm also denied any connection, stating in an email: “Pearson Vue does not have a board of directors and we [have] no record of any other affiliation between Pearson and Ms. Skandera. Can’t explain how this information made it into the suit but what is referenced is not correct.”
Kate Ferlic, the attorney whose firm represents both Johnson and Brainard, said Tuesday she had a “good faith basis” for including the allegation in the complaint.
The Department of Corrections’ educational staff had other problems with Pearson Vue getting the testing contract.
According to Johnson’s complaint, the cost of administering the GED test had increased under Pearson Vue, which had purchased the test from another vendor, and the number of inmates taking the test declined.
The Department of Corrections confirmed in April that the number of inmates who took the test fell from about 410 the year before Pearson began administering the test to about 160 the year after.
Department spokeswoman Alex Tomlin said part of the reason for the drop is because the test used to be a written exam and is now computerized, and many inmates are not computer literate.
Tomlin said in April that the Department of Corrections had no choice but to hire Pearson to administer the test because Pearson had purchased the trademarked GED test, and language in state law was so specific on use of the GED test that it essentially gave whomever owned the test a monopoly.
The language in the law has since been changed to allow use of tests with other names, but Tomlin said Tuesday the department is still using Pearson.
Tomlin said Huerta’s job is currently vacant, but that whoever is hired to replace him will re-examine the testing contract issue. Tomlin said she thinks the contract is awarded annually, but she couldn’t provide specifics on the contract’s term or financial value Tuesday.
Tomlin said she also didn’t have updated data on the number of inmates taking the GED exam.