“We’ve seen an up-tick in complaints regarding excessive charges for electronic copies, particularly at the local level,” Welsh said. “These include big bills to receive routine documents as e-mail attachments, and big bills for the privilege of making your own copies with a scanner or digital camera. Whatever the situation, unreasonable copy fees violate open-government laws and strongly discourage public access to information.”

The state Inspection of Public Records Act (IPRA) protects any person the right to inspect public records for free, Welsh said.

Fees not to exceed $1 per page may be assessed only if copies are requested, according to state statute.

In reality, however, fees vary dramatically among different government agencies, and in many cases arbitrarily exceed the actual cost of producing those copies, open government advocates have long complained. Per-page fees are routinely charged by New Mexico state agencies for the production and disclosure of digital documents like PDF reports.

Individuals may use their own scanners, copiers or cameras to make copies of public records without charge, Welsh said.

“There are already a host of practical barriers to obtaining public information,” Welsh said. “As a citizen, I have to know what I’m looking for and who’s holding it, and I have to take the time and effort to request it. Sometimes I’ll need to study the law and argue my case for weeks or months on end. If I’m successful, copying charges often represent one final barrier to access. Citizen requesters will balk at paying hundreds or thousands of dollars for information, and that’s harmful to the public interest in government transparency and accountability.”

“You can use whatever semantics you want, but the question is: Are you discussing public business with this elected body? Yes or no?” said Sarah Welsh of the Foundation for Open Government. ”If that is happening, I think that is exactly what the OMA (Open Meetings Act) was designed to prevent.”

Welsh’s remarks came as State Insurance Superintendent John Franchini has said he plans to meet individually with members of the Public Regulation Commission (PRC) to go over details of a “corrective action plan” put together in response to a recent critical audit of the state’s insurance division.

The agency’s chief legal counsel and one Public Regulation Commissioner defend the action, saying the PRC won’t run afoul of the state’s open meetings law because of a quirk in how the PRC and the state’s Insurance Division relate to each other.

A strange relationship

The PRC doesn’t regulate the insurance industry, and therefore has no jurisdiction over the plan in question. But the PRC supervises the insurance superintendent, who is presenting the plan as a courtesy, officials said.

“This is about keeping the commissioners informed because they are supervisors of the superintendent,” David Barton, the Insurance Division’s chief legal counsel, said in a telephone interview.

Because they lack jurisdiction, Public Regulation Commission members can hear the details of the plan individually because they won’t be taking action on public policy, say Barton and Public Regulation Commission member Sandy Jones.

“We have a superintendent who has proactively come forward … and want to disclose this to the commission so we start to have better communications,” Jones said in an interview.

But Welsh dismisses that as a way to get around the state’s open meetings act.

“There’s a common misconception that as long as a public body doesn’t vote, or doesn’t plan to vote, it’s not a meeting,” Welsh wrote in an e-mail. “That’s simply not true. Any discussion of public business by a quorum is subject to the Act.”

Welsh added, “They may think they’ve figured out a ‘loophole,’ but they’ll lose the public’s trust and confidence in the process. So what have you really gained?”

Welsh appears to have past determinations by the Attorney General’s office to bolster her opinion of the situation.

Serial quorums are a no-no

All meetings of a quorum of members that are held to “formulate public policy, discuss public business or take action are required to be open to the public” and “cannot be circumvented by what are commonly referred to as ‘serial’ or ‘rolling’ quorums,” according to a letter from the Attorney General’s office on a 2007 Open Meeting Act complaint.

Serial or rolling quorums are where a public body’s members discuss public business or take action through a series of contacts “in person, by e-mail, telephone, letter or otherwise” between individual members outside of a public meeting, the letter says.

The 2007 complaint concerned actions taken by Santa Fe County School Board members who spoke by phone about a public issue before a meeting.

Barton, the Insurance Division’s chief legal counsel, said the 2007 case and the current situation involving the PRC are different. In one case the Santa Fe County School Board had jurisdiction over the subject being discussed. In this situation the PRC doesn’t have jurisdiction over the corrective action plan.

Adopting a higher standard than just legality

But Public Regulation Commission member Jason Marks says even if the commission lacks jurisdiction its members should attempt to be as open as possible.

“My position on this is that even if we meet the legal requirements of OMA (Open Meetings Act) and IPRA (Inspection of Public Requests Act), that shouldn’t be our standard,” Marks said. “Our standard should be to be as open as possible.”

Besides, the insurance superintendent should be proud of its corrective action plan, Marks said.

“The draft I saw is a good plan,” Marks said. “It talks about filling vacant positions, about training staff. It had specific classes for specific people, specific curriculum for specific people. It’s detailed. It’s not generic. And it’s got specifics on changing business practices … like how things will be reviewed.”

The National Association of Insurance Commissioners accredited the state’s Insurance Division after a recent audit, but the agency is on probationary status until a corrective action plan is completed to address deficiencies identified by NAIC auditors.

Among other things the auditors found that the state Insurance Division’s Financial Examinations Bureau is understaffed and that financial analysis staff had “marginally sufficient experience” and needed more training on insurance operations, reserves, accounting principles and other areas, according to the nine-page report.

A review of the insurance division staff analyses found them not to “be in-depth and challenging in nature” and staff analyses contained “numerous deficiencies,” the report noted.

Any discussions about a proposed reorganization of the Insurance Division would be conducted behind closed doors anyway, Barton said, because the restructuring would run afoul the state’s personnel code even if the plan doesn’t identify employees.

“Our divisions are so small you are talking about easily identified individuals,” Barton said. “Eventually all of this will be public.”

Barton explained that any reorganization of the Insurance Division that eventually took effect would have to go before the Public Regulation Commission for its approval.

“Retaliation against such a person would be extremely unwise – if they win in court, they are entitled to double back pay, among other things,” Welsh told The Independent.

It should be noted that the Independent obtained the audit report in response to a public records request.

But even if it had been leaked, retaliating against the leaker would be a bad idea, Welsh told The Independent.

“The state’s whistleblower protections become relevant and important when someone is ‘leaking’ unsolicited information that gives evidence of law-breaking or malfeasance,” Welsh wrote in an e-mail to The Independent.

“But no one can ‘leak’ public documents that have been requested under the Inspection of Public Records Act. Quite the contrary – they are obligated by law to provide such documents. In this case, it sounds like the employee providing the documents was just doing his or her job, and following state law.”

But much of Jones’s often-heated debate with Commissioner Jason Marks Tuesday over The Independent’s publication of an audit report critical of the Division, centered around whether or not “draft” documents should be released to the public.

Citing executive privilege, division attorney David Barton said the audit report and a Division corrective action plan written in response to that audit were “mid-process” and should not be disclosed to the public.

“There’s an ongoing dialogue with the NAIC,” Barton said Tuesday.

State law does allow the insurance superintendent to declare third-party documents confidential if the authoring organization states on the document that the record is confidential. The NAIC audit report disclosed to The Independent was indeed marked “confidential,”and could have been legally withheld under state law.

But there is no draft documents exemption to the N.M. Inspection of Public Records Act, Welsh wrote. Barton has argued that the Division’s action plan is a draft document.

“When a document deals with public business and passes from one public employee to another, it clearly fits the definition of a public record and must be released unless a valid exemption applies,” Welsh wrote. “(E)xecutive privilege can sometimes be invoked to shield deliberative processes among high-level policymakers within executive-branch agencies – internal processes, that is. Once a privileged document is transmitted to someone outside of the agency, the executive privilege no longer applies.”

Welsh pointed to the relevant part of the state public records law:

Recognizing that a representative government is dependent upon an informed electorate, the intent of the legislature in enacting the Inspection of Public Records Act is to ensure, and it is declared to be the public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees. It is the further intent of the legislature, and it is declared to be the public policy of this state, that to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees.

“The greatest possible information – not just the ‘massaged’ information that our elected representatives deign to share with us,” Welsh wrote, alluding to Jones’s comment Tuesday that records should be “worked over and massaged” within the PRC before they are released to the public.

The 10-member task force was formed by County commissioners to help write oil and gas drilling regulations. San Miguel County and the City of Las Vegas currently have moratoriums on any drilling until the regulations are completed.

The task force consists of four groups, county officials said: an oil and gas industry group, an environmental and educational group, citizens, and county government representatives.

Only two members are supposed to represent industry: Independent Petroleum Association of New Mexico attorney Karin Foster and John Michael Richardson of Petroleum and Mineral Land Services.

But at least two other members also have oil industry ties, The Optic found.

Larry Webb, one of three citizen representatives on the task force, leases land in eastern San Miguel County to oil and gas companies for drilling. He complained in March that the County’s drilling moratorium violates his private property rights.

Webb lists his residence in Guadalupe County rather than San Miguel.

And one of the two environmental representatives on the task force, Jeffrey Mills, confirmed that he receives gas and oil royalties for holdings in Texas and Louisiana.

Mills said he discovered oil in the Gulf of Mexico when working for industry, but that he does not represent any oil or gas interests in New Mexico.

Mills has worked at the state Environment Department since 2001, where he is currently assigned to the Petroleum Storage Tank Bureau, according to state records.

“The County Commission tried to make the best choices it could,” County planning and zoning supervisor Alex Tafoya said. “The task force is a group of people putting an ordinance together. It’s not like we’re creating a new nuclear bomb.”

The task force has not yet met, Tafoya said – and he said it is uncertain whether or not the public will be allowed to attend the group’s meetings.

“Without knowing the legal authority given to the task force, it’s hard to say whether it would be legally required to follow the Open Meetings Act and allow the public into its meetings,” New Mexico Foundation for Open Government (FOG) Director Sarah Welsh told The Independent Wednesday. “But in general, I would urge anyone organizing a task force on such a contentious public issue to be as transparent as possible.”

The public is less likely to accept recommendations resulting from a secretive process, Welsh noted, and members of the public “are likely to have valuable input and knowledge that would benefit the process.”

A search of state records Wednesday by The Independent found no company named Petroleum and Mineral Land Services registered in New Mexico.

Curry County commissioners Wendell Bostwick, Dan Stoddard and Caleb Chandler had met with Eastern Plains Council of Governments Director Richard Arguello at a Clovis coffee shop, where Arguello said the group discussed what services the Council could offer Curry County.

That would have been a violation of the New Mexico Open Meetings Act, since the meeting had not been not announced to the public and a quorum of commissioners was present.

But County officials said no county business took place at the meeting.

Two commissioners implied, but would not say outright, that the meeting between three commissioners and Arguello had been spontaneous and coincidental.

“In a small community, you’re subject to run into people at different times, and we know that,” Bostwick said.

“People should be able to meet for coffee without worrying about a quorum,” County Commission Chairman Robert O. Sandoval told The Independent in April.

Clovis is a small community and commissioners know one another, Sandoval said.

Furthermore, no County business was discussed because Arguello talked but commissioners asked no questions, Bostwick claimed.

“It’s a very fine line to draw between a ‘one-way’ transmission of information and a ‘discussion’ among a quorum,” New Mexico Foundation for Open Government (FOG) Executive Director Sarah Welsh said.

“If you’re really representing the public, why would you want to try to avoid the law on a technicality like that?” Clovis News Journal Editor David Stevens said. “Hopefully, they got the message and this won’t be a problem in the future.”

A review of 17 New Mexico counties’ online public meeting agendas and minutes found that all but two may have violated the executive (closed to the public) sessions clause of the Open Meetings Act, The Independent reported in April.

The Eastern Plains Council of Governments is a chronic violator of the state Audit Act, failing to complete independent audits since 2004, according to State Auditor’s Office records obtained by The Independent. State Auditor Hector Balderas has designated the Council the first in a list of 46 state and local government entities “at risk” of fraud and embezzlement because of its failures to complete audits.

Following a series of well-publicized ethical and legal lapses by PRC officials, the state’s top regulatory agency surveyed its employees’ understanding and concerns about professional ethics.

More than 80 percent of respondents reported unethical behavior at the agency in the past year, and half reported being asked to do something they believed to be unethical.

That prompted outgoing PRC Chief of Staff Johnny Montoya to call for an ethics and transparency overhaul.

But ironically, the agency was reluctant to release the survey responses to the public.

“The Public Regulation Commission released its anonymous employee ethics surveys late last year with huge portions blacked out,” FOG Executive Director Sarah Welsh said. “FOG said we wouldn’t challenge the withholding of comments about individual employees, but we think the public has a right to see allegations regarding the five elected commissioners.”

Privacy protections for public employees “simply don’t apply” to PRC commissioners, Welsh said.

Commissioners are elected representatives, Welsh emphasized, “and they’re accountable directly to the public.”

PRC Commissioners Jason Marks, Sandy Jones and Jerome D. Block Jr. agreed May 6 to release portions of the survey comments staff made about each of them.

But the disclosed pages posted on the FOG website contain entire paragraphs of blacked-out text, presumably redacting descriptions of allegations against public employees.

“Marks, to his credit, has spoken in favor of releasing the information since the beginning, and he cast the lone vote to comply with FOG’s request back in late March,” Welsh said. “We’re still waiting to hear from Carol Sloan and (PRC Chairman) David King.”

Disclosure of the surveys is a matter of law and principle, Marks told The Independent Wednesday.

“From a legal standpoint, I have consistently taken the position that the ethics survey responses should be released, except for comments whose release is specifically prohibited by NM law,” such as opinions about public employees, Marks said. “As a citizen, I find it frustrating and wrong when elected officials conceal documents related to what they are doing in their official capacities, for example when former Vice President Cheney withheld schedules that would have revealed who he met with on energy policy issues.”

Many staffers complained that there appears to be a different ethical standard for commissioners than employees, a source of low morale, outgoing interim Chief of Staff Johnny Montoya recently acknowledged.

Heavily-redacted copies of questionnaires were disclosed to FOG in response to Welsh’s request, which was filed under the state’s Inspection of Public Records Act.

According to a public notice, “determination” and actions may be taken in the executive session, out of public view, although they will be ratified in open session following the closed meeting.

That practice is a “big red flag,” according to NM Foundation for Open Government Executive Director Sarah Welsh.

Under the state Open Meetings Act, no decisions can be made in closed session, Welsh said.

“Under OMA, they shouldn’t be taking any sort of vote at all in executive session,” Welsh told The Independent. “It’s just a discussion.”

This is not the first time UNM directors have planned to vote in executive session. The university’s Lobo Development Corporation board did the same thing last month.

The Independent’s recent review of public meeting agendas and minutes from dozens of local, county, school and state agencies in New Mexico found that executive session rules are routinely ignored across the state.

Schmidly made headlines in 2008 over charges of nepotism.

Schmidly’s son Brian Schmidly turned down a $94,000 a year UNM job promoting energy efficiency after faculty and staff raised concerns about favoritism and nepotism. His father had created the position in June 2008 but Brian Schmidly’s hiring was not announced until the university’s fall break that year.

We also invite readers to participate — so please share your thoughts on this question in the comments section. If you have suggestions for how we can improve this feature or have have an idea for a future question, send us an e-mail.

On Tuesday, The Independent, KNME and KUNM teamed up for a live event with New Mexico mayors, and we talked about what they’re doing to shore up local economies and how they’re trying to create and retain jobs.

This week’s question is: What innovative steps can local governments take to bring good jobs to New Mexico—and keep them here?

MARTHA BURK, Gov. Richardson’s senior policy advisor on women’s issues:

Well, I’m a liberal of course so I guess that makes me part of the “big government” crowd. So I think we need something like local WPAs, meaning hire more government workers to do infrastructure and administrative work for state and local functions instead of contracting everything out.  It would provide good jobs with benefits, cut out the middlemen in private contracting, and just incidentally cut out some of the kickback and siphoning schemes that seem to keep popping up when public services are privatized.

SARAH WELSH, executive director of the NM Foundation for Open Government:

I know of something governments can do that might not directly create jobs, but would certainly create a suitable environment for sustainable economic growth: transparency reforms. On the international scene, there has been a lot of research suggesting that government transparency and economic growth are closely correlated, particularly for governments that are heavily dependent on revenue from extractive industries. What’s more, transparency is cheap to implement and popular with citizens across the political spectrum. Here’s a quote I found from an abstract of a 2005 paper by Daniel Kaufmann and Ana Bellver:

“Mindful of the challenges in inferring causality, we also find that transparency is associated with better socio-economic and human development indicators, as well as with higher competitiveness and lower corruption. Much progress can be attained without requiring inordinate amount of resources, since transparency reforms can be substantial net ‘savers’ of public resources, and often can serve as a more efficient and less financially costly substitute to creating additional regulations and/or regulatory or governance bodies.”

That ‘higher competitiveness’ is key when we consider that New Mexico is competing with other states for high-paying jobs. Bottom line, rooting out corruption and putting top-to-bottom transparency reforms in place would be good for business.

RICHARD ANKLAM, president and executive director of the New Mexico Tax Research Institute, former director of tax policy for the New Mexico Taxation and Revenue Department:

Sadly, local governments have little capacity to create jobs.  Politicians will quickly tell you about the things they are doing in that regard, but they don’t have that many arrows in the quiver in real life.  They don’t control much of the tax equation, and certainly don’t control the cost, supply and quality of labor or quality of schools.  For “big deals,” they do have some ability to negotiate land use, capital infrastructure spending, and the ability to issue industrial development revenue bonds (IRB’s)  – a powerful tool allowing a local government  to provide state and local tax breaks for a small number of targeted recipients.

Here in Albuquerque, economic developers worked hard and used those tools to attract companies, like Schott Solar and Fidelity Investments, that we’re lucky to have and were right to have pursued.  However, the cost benefit question is never fully answered and politicians don’t always have the best track record when picking winners and losers for local subsidy.  Combine that with the fact that most job creation falls outside of the really large employers we can target with those tools, the most important thing local governments can do is to provide the best and most cost effective services that their voters require.   Making the proverbial trains run on time isn’t always the most sexy platform, but it’s the reason we have state and local governments to begin with.  The focus should be on doing those jobs well – providing basic needed services and protecting the interests of the residents – but not in any unnecessary or ill-reasoned way that gets in the way of job creation by the average business and improved standard of living for the residents.

TERRI COLE, president and CEO, Greater Albuquerque Chamber of Commerce:

Success at bringing good jobs to New Mexico will be defined by how well we execute at the local and regional levels.  The role of state and federal government, I think, is to create an environment for development to flourish, but the execution has to be done locally and regionally.  We should focus on impactful policy areas and create strategies that accelerate growth and create jobs. Areas like entrepreneurship and innovation, exports and international trade, infrastructure investments, workforce development and training and taxes and regulation would be good places to start.  Our local and regional economies in New Mexico should create partnerships comprised of both private and public sector leaders. These partnerships throughout New Mexico should look at the above mentioned areas and get specific in each of those areas. For example, in the area of entrepreneurship and innovation,  we should focus on new business and technology-based developments and productivity along with retention strategies that emphasize financial incentives and investments.  Streamlining governmental regulation, optimizing taxes, and getting the education issue fixed in New Mexico to insure a more highly skilled work force should be other specifics that fall out of that analysis and there is more.  We need to resist the mindset that growing government, i.e. economic stimulus plans one after another and regulating private business even tighter now is the answer to creating good jobs. When we think along those lines, we do more damage to creating good jobs.

PAUL GESSING, president of the Rio Grande Foundation:

Local governments in New Mexico, while constrained by the policies enacted in Santa Fe, do indeed have many arrows in their quivers for spurring economic growth and thus bringing jobs to New Mexico.

First and foremost, having straightforward and fair regulations in terms of zoning, construction, permitting, and other functions of government is paramount. In Hernando de Soto’s groundbreaking book, “The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else,” de Soto explored the difficulties in various nations that entrepreneurs face in turning ideas and hard work into wealth. Most of these difficulties stemmed from government rules and regulations ostensibly designed to benefit workers and the poor, but that end up making everyone poorer. The easier it is to set up and operate a legitimate business in Albuquerque (or any other New Mexico city), but wealthier the citizens of that city will be.

The second major thing that cities can do is to not fall for economic development schemes. Some involve governments picking winners and losers in business. Sure, Eclipse Aviation and the long line of solar companies that have set up shop here (all with heavy subsidies), may have seemed like sure things, but politicians are not in a position to have the most information on the prospects of these businesses. Worse, because it is taxpayer money, not their own money, they don’t have the incentive to get all the necessary information. Low, flat, and fair taxes are much better at boosting economic growth than massive “corporate welfare” to particular industries.

The same thing goes with massive government spending projects like the streetcar from a few years back and the convention center expansion/events center that continues to come up year after year. Government should stick to the basics rather than spending massive amounts of taxpayer dollars on baubles.

Lastly, while tax cuts may not be in the cards in an economic downturn, city governments can and should make their workforces as efficient as possible. Simple things like stopping the rich payouts of unused sick and vacation time are a start, but demanding that government workers either do the work as efficiently as private sector workers or allow the private sector to take over is an important step as well. Solid waste collection, golf course maintenance, and janitorial services in government buildings are just a few public services that can often be done more cheaply and efficiently by the private sector. Government workers should at least face market discipline in the form of competition for this work. The former Mayor of Indianapolis, Stephen Goldsmith, used the “phone book test.” If a government service was being provided by two or more companies in the phone book, government should probably be buying the service from those companies rather than doing it in-house.

These kinds of efficiency can help close budget deficits when times are good, result in surpluses when times are good, can improve the quality of services, and ultimately result in lower taxes or the ability to shift scarce government resources to more pressing needs.

This is a good start and if Albuquerque or any other city in the state follows these three basic principles, that city will see an improved business climate, job growth, and ultimately, wealth creation for its citizens.

We also invite readers to participate — so please share your thoughts on this question in the comments section. If you have suggestions for how we can improve this feature or have have an idea for a future question, send us an e-mail.

Over the weekend, the state Attorney General’s Office and Insurance Division struck a deal with Blue Cross Blue Shield that will allow the company to raise its rates by an average of 21 percent. BCBS is the state’s largest private insurer in rural areas.

But 50 people gathered at a Public Regulation Commission meeting Monday had expected a public hearing on the company’s request to hike its rates. Commissioner Jason Marks took objection to the deal, saying it should have been negotiated in public. And State Senator Dede Feldman said the State Legislature may look at how the State Insurance Office sets rates.

So this week’s question is: Should the process of setting insurance rates be more transparent to the public? Should it be more difficult for companies to raise rates?

SARAH WELSH, executive director of the NM Foundation for Open Government:

Yes, the process should be more transparent. Chavez’s promise to post proposed rate hikes online is a start.

This story is a good example of the political and public-relations consequences of cutting the public out of the discussion – regardless of what the government’s intentions are. Maybe this is a good settlement. Maybe everyone was acting in the best interest of consumers, as they say. But if that’s true, then why not argue the case in public? Why scramble to ink a deal over the weekend, pre-empting the public hearing? Why upset a roomful of your most impassioned constituents? For those of us who are a bit cynical, that behavior raises a lot of questions and makes it harder to swallow any assurances to ‘just trust us, it’s for your own good.’ And we shouldn’t have to offer our blind trust – that’s the point of open government in a democracy.

(Full disclosure: I have a BCBS individual policy, and so far I have not been affected by the rate increase.)

BILL TURNER, hydrologist and former director of the Middle Rio Grande Conservancy District:

The process must be transparent.  It wasn’t regardless of whether the PRC had to grant the increase.   That was wrong.  More back room deals outside of public scrutiny.  Companies and their accountants and actuaries raise rates after careful study.  My beef is that the cost of medical care includes egregious waste.  Look around your doctor’s office.  Most of the personnel there simply push paper for a few doctors.  Paper pushers outnumber the doctors.  Also, why must I visit a new doctor twice, once to say hi and the other for the service.  My son is a doctor and the reason they do it is so they can get paid to pontificate over your medical history.  Why not a central history register accessible with a password from the insured?  I travel 30 miles to Belen to see a doctor who only inconvenienced me once and he was terrific.

Second, in surgeries, in my experience, much of the “kit” they use gets thrown away yet it is charged for.  Waste.  I am sure your readership can name other examples of waste like going to the doctor without using any common sense.  Everyone gets colds.  Who needs a doctor for that.  We have become a society of pill pushers.  During residency my son was told by a doctor to pick a few favorite pills and prescribe them for everything.  They will do in 90 percent of cases.  Fortunately, that is not his style.  Plenty of bed rest, aspirin, cool baths, applesauce, toast, and chicken soup. Everyone gets normal respiratory and gastrointestinal problems.  It is unpleasant but it is good for the maintenance of the immune system.  I get to catch up on my sleep.   A hot gallon bottle over a boil will pop it cleaner than a doctor every could. And, its free.  Never blow your nose.  That can cause bad sinus trouble.  Use a neti pot. I learned many little remedies from my father who was a doctor. No doubt curanderas have many ancient remedies.  Actupuncture and ancient Chinese medicine may be less expensive than the emergency ward where they treat you with any darn thing they want without your approval and you say, my insurance will cover it.

My employees are covered by Blue Cross and I am seriously considering either terminating the coverage or asking them to pick up the difference.  There seems to be too little oversight of physician and hospital practices, so we pay for the egregious waste.  We desperately need tort reform. I am just getting started but I’ll leave it there.

PAUL GESSING, president of the Rio Grande Foundation:

As a current Blue Cross customer, owning a Health Savings Account in the individual market (the one that is facing increases), I have a keen interest in this topic. That said, I think the problem here is not one of transparency, it is one of rising health care costs and Blue Cross (a mutual insurance company, owned by its customers; profits must be reinvested in the business or given to customers) facing the need to cover costs in this individual marketplace.

While not having access to their books, it is impossible for me to confirm the “need” (or lack thereof) for Blue Cross’s rate hike. Ultimately, however, these public hearings are not an efficient way to determine this. Instead, we need to reduce regulations and implement policies to make New Mexico a competitive health insurance market with multiple insurers doing business here. A competitive market will obviate the need for a “transparent” hearing process because consumers will purchase the best, most-cost effective option.

Ultimately, this debate at its core is about how to reduce health care costs. President Obama and Congress have just given the insurance companies exactly what they have been clamoring for — a legal mandate to purchase their product, financed by taxpayers. Unfortunately, this does nothing to attack the cost issue which is that a vast majority of Americans do not directly pay the costs of much of their health care. Until we abolish the third-party-payer system and encourage people to shop around and use only the care that they need and are willing to pay for, we’ll be stuck with health care costs spiraling out of control. With regard to passing along the costs of health care, Blue Cross is just the middleman (and messenger). We can’t shoot the messenger when the problems come from Washington and Santa Fe.

CARTER BUNDY, political action representative, AFSCME:

There should be more transparency in all parts of New Mexico policy-making, and this is no exception. As to raising rates, this is going to remain a problem as long as there is a for-profit middleman and we don’t take other serious measures to curb rising health care costs in the public and private sectors alike. One of the things left out in this round of reform is more predictability for provider liability. Yes, I’m advocating for some kind of tort reform, but not caps. If big damages are needed for bad actors, they should stay as part of the mix. But we do need real predictability if we’re going to reduce the amount of defensive medicine being practiced, which is unquestionably a big driver of costs.

We also need to fundamentally re-evaluate our pay-for-volume system that gives financial incentives to providers to buy all the most expensive machines and then use them too frequently. Some of the overuse is due to defensive medicine, but no matter how well-intentioned providers are, there’s no getting around the fact that there are massive financial carrots and sticks that both push providers to overuse the system (quick aside: there’s NO evidence that patients are the ones pushing overuse. Most patients are in such a poor position from an information standpoint that they couldn’t possibly be the primary force behind overuse, which is exactly why the normally sound idea of adding to consumer costs for use simply doesn’t apply in this area–consumers will do whatever their provider tells them is the best course due to the information asymmetry and the importance of health).

Two other issues on insurance costs with current reform: One of the real flaws in health care reform is that the insurance companies are going to charge what the market will bear, as does any good for-profit organization (and even the “non-profits” in this field effectively act as “for-profits”–they try to maximize revenue while minimizing costs, even if it means not treating people who are sick). The flaw is that by having subsidies (a necessary part of any individual mandate, which is itself a necessity if we’re going to say that companies have to cover sick people), the system will now allow insurers to keep raising their rates knowing that the cost will be picked up by someone who is legally mandated to pick up those costs and has deep pockets–the government.

I know I’m admitting to a flaw in the system, and anti-reformers will crow that even the AFSCME guy sees a problem with it. But it’s a valid criticism of the plan, and something that has to be addressed going forward no matter which party controls Congress or the White House. And fixing this flaw won’t be easy.

The other big flaw relating to the individual mandate and insurance prices is that the “penalties” for not having coverage are peanuts. Smart people, especially if they’re young and healthy, may decide that they’d rather pay the small penalties and then sign up for coverage as soon as they get sick. That will in turn make insurance company risk pools worse, meaning insurance companies will have to charge higher premiums (even leaving aside their desire for bigger profits, it’s simply costlier to insure sicker people. This is going to be a legitimate reason for raising rates). Fortunately, the substantive answer to this flaw is far easier–raise the penalty so that people are incented to participate instead of being incented to step out of the system if they’re healthy. But a sound, simple substantive solution is sometimes a politically tough one, and that’s certainly the case here.

JIM BACA, blogger, former director of the U.S. Bureau of Land Management, Albuquerque mayor, state land commissioner and recently retired natural resources trustee:

Of course, there should be transparency on setting of insurance rates in New Mexico.  There should be public hearings on these rate setting processes.  However, I wouldn’t hold your breath for tremendous turnouts of the public at such hearings.  They just normally are not motivated enough to attend these monotonous and jargon-filled testimonies.  Those who will show up at these meetings are nonprofit watchdog agencies and insurance industry attorneys,  lobbyists and representatives.  (It is strange the Attorney General’s Office participated in sinking the hearing process recently.) That is just the way it works.  But, having the opportunity to attend such hearings is a good thing and should be afforded the public.

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’.”