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’.”

“You got me,” said John Onstad, who is helping spearhead a move in Santa Fe to defeat the tax hike in the four-county North Central Regional Transit District. “It’s going to be close.”

Similarly, said Greg Payne, director of Albuquerque’s transit department, “I suspect it will go through” in the three counties of the Rio Metro Regional Transit District, “but I wouldn’t be surprised, either, if it came up a little short.”

The measure up for approval in both transit districts was designed to be politically palatable, according to Wayne Ake, chairman of the Rio Metro board. It asks voters to approve a one-eighth-percent gross receipts tax in the affected counties — 12.5 cents on every $100 purchase, excluding food and medical supplies — to help expand bus service and to defray the Rail Runner’s operating costs.

But conditions have changed dramatically since the tax plan was being put together in midsummer, complicating the prospects for the transit tax, according to at least one veteran of such votes.

“I’m optimistic where I ordinarily wouldn’t be,” said Albuquerque Mayor Martin Chavez. Tax-hike propositions typically have an uphill struggle, he said, and the outlook should be even worse now that the U.S. economy is in shambles.

But the summer’s gasoline price spike is fresh enough in people’s minds that they may be inclined to vote for the tax, Chavez said. “We’ve gotten a real wake-up call in the last six months regarding our addiction to foreign oil,” he said, and chipping in a small amount to improve public transportation throughout north-central New Mexico shouldn’t be hard for voters to accept. “This is a bit of self-help,” he said.

The strong interest in the Rail Runner itself will affect the vote, too, Chavez said. “I always thought the Rail Runner would languish until it stretched to Santa Fe. But it’s been a success from day one, and I expect in January or February it’s really going to explode.” People who plan to use the train for work or pleasure will vote for the tax, he said, and those numbers seem to be growing.

“I think it’s going to pass,” Chavez said.

The Rio Metro tax in Bernalillo, Sandoval and Valencia counties is expected to raise $19 million a year, while the tax from the North Central district counties of Santa Fe, Los Alamos, Rio Arriba and Taos would bring in $8 million a year.

As the Independent reported earlier this year, both tax measures are critical to the Rail Runner Express. When train service extends this winter from Bernalillo to Santa Fe, it will boost the train’s operating cost to some $20 million annually. The new tax is slated to pick up more than half the tab — $11.6 million in the first year — state Department of Transportation officials say.

If one or both tax measures fail, the state will have to look elsewhere for the missing millions. Department of Transportation spokesman S.U. Mahesh told the Independent in August that the Rail Runner has one year left of start-up funding from the federal government. Without the tax revenue, he said, “We’ll be looking wherever we can to get the money for the trains without affecting our other (state transportation) projects.”

While half the Rio Metro tax, if approved, would support the Rail Runner, the other half — some $9.4 million the first year, rising to more than $13 million in the future — would be used to beef up bus service in Albuquerque and the three-county area.

Likewise, half the tax raised in Santa Fe County would go to the train — estimated at about $2.2 million a year. The remainder of Santa Fe’s tax revenue, plus all the tax from the three other counties in the North Central transit district, would be spent to improve bus service to, from and around Santa Fe.

In northern New Mexico, there seems to be strong support for the plan, said Josette Lucero, executive director of the North Central transit district. “We’ve been out to the communities, going to public meetings, talking to people,” she said. “People don’t like any taxes, but they’re responding to that this one is needed. They want to pay for something that’s needed and that benefits the people.”

Ake, the Rio Metro chairman, is also mayor of Bosque Farms, and talking to his neighbors in Valencia County gives him the sense the tax will pass, if narrowly.

“Nobody likes taxes,” he said, “but it seems like a lot of people have changed their habits” since gas prices topped $4 a gallon in parts of rural New Mexico this summer. People he knows are driving less, and some have even sold off a car or two. Though the gas price is now less than $2.50 in the Albuquerque area, he and others expect it to rise again, Ake said, and that could affect the vote.

Joanne McIntire, who until this week has been working on transportation and urban growth projects with the group 1,000 Friends of New Mexico, said she senses the tax will pass, regardless of the state of the economy.

“This is an era of change,” she said, and residents of central New Mexico are embracing the regional transportation system that has the Rail Runner as its backbone. For some people, buses and trains will become an economic necessity, McIntire said, but others will vote for the tax hike because public transportation represents a more sustainable future.

Payne, the head of ABQ Ride, said that even as gasoline prices began easing from their peak in July, ridership on the city’s bus lines continued to rise. September was a record month for boardings, he said, and October appears to be just slightly behind. Ridership on the city’s West Side route, the Blue Line, jumped 80 percent after a transit center opened near Cibola High School in September, he said.

“It’s pretty tough out there economically,” Payne said, “but I don’t know that’s going to translate into opposition” to the tax.

There hasn’t been a lot of organized opposition to the tax measures. The Rio Grande Foundation in Albuquerque has written op-ed pieces pointing out that the steady pace of small increases has boosted Albuquerque’s gross receipts tax by more than 20 percent since 1999, and generally ruing the state’s decision to build the Rail Runner in the first place.

In Santa Fe, John Onstad and others have been more active, putting up billboards and writing op-ed pieces to the Santa Fe New Mexican, but he isn’t optimistic about killing the tax proposal. “I think it’s going to be close,” with voters falling into what he called “predictable patterns.” Conservatives see the government sticking its hand into people’s wallets, while liberals see it as benefiting the environment and the poor, he said.

“I think it’s going to be close,” Onstad said. But either way, “we still have the Rail Runner,” which he thinks should never have been built, while the regional bus system is a boondoggle, he said.

Two recent Rail Runner riders said they had already voted for the tax. Nick Tobey, a retired utility worker who lives in the Sandoval County village of San Ysidro, said he thinks public transportation “is going to get more and more important as time goes on,” and the small sales tax he would pay is an easy contribution to make.