I am writing today to announce the closure of the New Mexico Independent. After three and a half years of operation in New Mexico, the board of the American Independent News Network, has decided to shift publication of its news…
While environmental activists played their part yesterday during demonstrations at the capitol building, going so far as to dress up as solar panels and to sing the tune of “You Are My Sunshine,” their counterparts, the anti-cap-and-trade contingency who has…
Roughly one quarter of University of New Mexico students are unimpressed with the state’s flagship public school, according to a survey that questioned college students about their higher education experiences.
New Mexico’s Open Meetings Act is meant to help ensure public involvement and to prevent backroom deals in state and local government, but violations of the law are widespread, an investigation by The Independent has found. School boards, universities, town councils, county and state commissions, and boards across the state have broken the law, casting a shroud of secrecy over government officials’ deliberations and bargaining.
Violating the Open Meetings law can contribute to a culture of political secrecy and corruption, Foundation for Open Government Executive Director Sarah Welsh told The Independent. It also raises questions about the legality of decisions reached based on issues discussed during illegally convened closed sessions.
Hanging from the wall just outside the New Mexico Public Regulation Commission’s chambers is the PRC’s 2010 annual Open Meetings Act policy notice. On page seven, the policy states the rules for invoking a closed or “executive” session at public meetings — sessions during which the public is told to leave the room.
A public vote must be taken to enter executive session, and votes on matters discussed in closed sessions must occur only afterward, in public.
But on at least three occasions this year, the PRC has violated the Open Meetings law and its own policy.
Commissioner Jason Marks objected earlier this month to the appointment March 30 of Johnny Montoya as interim PRC chief of staff in executive session during Marks’s absence.
Montoya is husband to state Rep. Rhonda King, a cousin of PRC chairman David King.
“The commission doesn’t need to do more things in a way that makes the public question whether we followed the law or not,” Marks said. “I think the law is extremely clear.”
Under the state Open Meetings Act, the PRC policy acknowledges, the legal authority to close a meeting to the public and the specific reason for doing so must be stated three times: first in the public notice and meeting agenda released prior to the meeting, then again, in the motion to close the meeting, and finally, within the minutes of the meeting.
But on at least two other occasions this year alone — March 24 and April 8 — PRC meeting agendas’ public notices of closed sessions failed to list what exactly would be discussed behind closed doors.
The PRC did not respond to emails requesting comment for this story.
“It can seem nit-picky, so remember the bottom line: kicking the public out of a meeting is an extraordinary thing,” Foundation for Open Government Executive Director Sarah Welsh told The Independent. “Because it runs contrary to our fundamental values, the law allows closed meetings only in special and limited circumstances, where the public interest could actually be harmed by openness.”
Closed sessions are allowed only when limited personnel matters or the purchase or sale of real estate are to be discussed, or when government attorneys must discuss details of lawsuits with elected officials.
Even then, Welsh said, closed sessions are ripe for abuse.
“So the law requires them to give as much information as possible in advance, take a roll-call vote to close the meeting, and to state for the record that they didn’t discuss anything else while they were back there,” Welsh said. “If they start peeling back those small and limited protections, then what assurance does the public have?”
Violations widespread
The PRC is not alone in its violations of the Open Meetings Act, the Independent found.
Reviewing hundreds of public notices, meeting agendas and meeting minutes for state and local governments, the Independent discovered violations of the closed session rules by school boards, village and town councils, county commissions, and state boards and commissions across New Mexico.
Of the 17 New Mexico counties with closed sessions listed for recent county commission meetings, only two — Taos and Quay counties — complied with the law, listing both the legal authority for entering closed sessions and the specific topics to be discussed, The Independent found.
Ten counties had no website or did not post meeting agendas on their websites. Harding County’s website posts links to agendas, but those links were not functioning. Rio Arriba County’s web page for meeting agendas was empty.
The NMSU and UNM boards of regents both violated the Open Meetings law in their March 8, 2010 agendas, announcing closed sessions without describing what was to be discussed, The Independent found.
The North Central Regional Transit District, State Transportation Commission, Racing Commission, Gaming Commission, Mining Commission, and Regulation and Licensing Department all violated the Open Meeting Act’s closed sessions requirements, The Independent found.
The state Medical Board and Board of Licensure for Professional Engineers and Surveyors both listed case numbers rather than including the names of license holders or litigants, or the nature of lawsuits.
“These probably comply with the letter of the law, but including names would certainly help the public see at a glance which licenses are up for discussion,” Welsh noted. “Why not include the additional information?”
The Alamogordo, Carlsbad and Lordsburg school boards, the Capitan, Tucumcari, Deming and Torrance city councils, the Tularosa Village Council, and the Las Vegas City Council have all recently broken the law by issuing “empty” closed meeting notifications that do not specify what will be discussed, the Independent found.
The Alamogordo school board’s April 12, 2010 agenda lists a closed session to discuss board member evaluations.
But elected officials are not covered by the privacy protections the Open Meetings Act affords public employees, said Welsh.
Last March, the Las Vegas, NM city attorney told councilors to stop e-mailing more than one of their colleagues at a time about council business because the Open Meetings Act requires a quorum to discuss city business, and to do so only at advertised public meetings. But Las Vegas repeatedly violated the law this year in its agendas’ unspecific description of closed session discussions, The Independent found.
Las Vegas and numerous other councils and commissions routinely publish generic notices that public meetings would include closed sessions for discussions of “threatened litigation” or “limited personnel matters,” without listing them, The Independent found.
That can discourage public attendance of open meetings, said Welsh.
“The Open Meetings Act is intended to avoid unhelpful ‘boilerplate’ agendas,” Welsh said. “It becomes hard for John Q. Public to know whether the commission is actually going to descend into executive session for four hours and maybe he should show up late or stay home. Conversely, if I see they’re going to discuss my lawsuit against them, I want to be there.”
Eastern Plains Council of Governments Interim Director Richard Arguello apologized last week for failing to publish a public notice that the Council would enter executive session during its April 7 special session. Ironically, however, the Clovis News Journal reports Arguelo was less than specific when asked what exactly had been discussed during the illegal closed session.
“The purpose of Wednesday’s meeting was to discuss, ‘some personnel issues that we’ve been looking at going into,’ (Arguelo) said, adding, ‘There weren’t any decisions made (at the meeting), it was just an informative session’,” the paper reported.
In addition to eroding government transparency, votes based on discussions in an illegally convened closed session are open to legal challenge.
“It doesn’t give them any authority to act on anything,” Welsh said.
Luna County commissioners last February dismissed County manager Scott Vinson and attempted to rescind his firings of six staffers, only to have the County attorney challenge the validity of the vote because they had not listed the terminations on the meeting agenda, according to an Associated Press report.
And PRC commissioners had to reintroduce a motion and vote to appoint Johnny Montoya as interim chief of staff earlier this month — this time in public — to comply with the law.
State law requires the public receive “the greatest possible information” about what is discussed behind closed doors, Welsh said. Compliance with the law is required of every public body in the state.
“It’s the law,” Welsh said. “The guiding principle is not, ‘what is the bare minimum we have to provide to comply with the letter of the law’.”
