Transparency laws help preserve democracy

Picacho Hills in Las Cruces on Sunday, April 7, 2024. (Photo by Leah Romero for Source New Mexico)

A city council closed the doors when it discussed allegations of wrongdoing against the mayor, ensuring the public didn’t know what was said.

A university board of regents renewed a contract for its president in a closed session, keeping the public from watching how each member voted.

Three members of a county commission apparently talked among themselves before a public meeting to decide on a process for hiring a new county manager, excluding other colleagues on the commission and the citizens they should serve.

All of these acts violated the social contract these New Mexico officials were required to uphold.

The New Mexico Open Meetings Act states that “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” This policy statement at the start of the Act is intended to be one of the guiding stars for elected and appointed officials in New Mexico.

It’s really important: The First Amendment to the U.S. Constitution protects your right to petition your government — to plead for something to happen or protest when it doesn’t. But if you don’t know what your government is doing because its leaders are keeping secrets, you can’t exercise your constitutional rights.

If the First Amendment is the door that gives you access to your government, transparency laws are the keys that unlock the door. 

We must protect these laws as though democracy is at stake — because it is.

The New Mexico Department of Justice informed the Anthony Board of Trustees and Eastern New Mexico University Board of Regents in recent months that they broke the law. It’s told the Bernalillo County Board of Commissioners that some of its members may have violated the law and is investigating further.

Another recent example comes from my hometown of Las Cruces. 

The public learned that the city manager was resigning from his job in a Feb. 28 news release announcing that the city was already accepting internal applications for his replacement, and that the City Council was expected to begin interviews in March.

Who made those decisions? And when? Those are issues the Council is required to discuss and vote on in a public meeting so you can watch their deliberations and know how they voted.

But the first time the city manager search appeared on an agenda for a public meeting wasn’t until weeks later on April 1 — after the entire search had been conducted and the new hire was announced in a news release. Only the formal vote on a decision that had already been made was yet to be taken. 

That cut you, the public, out of the process.

One councilor, Cassie McClure, voiced her objection to the actions of her colleagues by voting against the appointment of Ikani Taumoepeau to succeed Ifo Pili as city manager. The other councilors and Mayor Eric Enriquez all voted to approve Taumoepeau’s hiring. The state DOJ is investigating the situation at the request of the Las Cruces Bulletin.

The process of replacing Pili should have started with councilors discussing, during a public meeting, what type of search they wanted to conduct. Should they pay a firm to conduct a national search or hire internally? What qualifications should the job require? What pay and other benefits should they offer? 

The decision also should have been made during a public meeting so you could watch the vote.

The rolling quorum quandary

Enriquez told me that Pili suggested posting the job and moving forward with the internal search to the Council before the Feb. 28 news release went out, outside of a formal meeting, “and nobody objected to it.” 

Enriquez said he didn’t know how many councilors Pili spoke with, but added, “In my conversation with him, he said, ‘I can do this,’ and I said, ‘Go ahead with it.’”

If Pili spoke with a majority of Las Cruces Council members (four of seven, including the mayor) outside a public meeting to gain consensus and act, that’s called a rolling quorum. 

It’s illegal regardless of whether elected members of a body discuss and decide among themselves, as appears to be the case in Bernalillo County, or when an employee who works for an elected body goes to various members to get approval and then takes action, as may have happened in Las Cruces. 

It’s illegal regardless of whether those conversations take place in person, by phone, via text, or through messaging apps.

“…even when members are not all communicating directly among themselves, their communications through one individual can still constitute a quorum,” states a 2018 opinion from the state DOJ, which was responding to a violation committed by the University of New Mexico Board of Regents. “A rolling quorum is impermissible and violates OMA, which requires all conversations to be had and decisions to be made in an open meeting.”

If Pili spoke with fewer than four Council members, then those including Enriquez who gave him the go-ahead were acting without the legal authority to do so, inappropriately cutting other councilors out of the process. No action that requires a vote of the City Council is valid unless decided upon by a quorum.

The personnel exemption to the Open Meetings Act, which lets public bodies discuss employment issues behind closed doors, doesn’t cover the policy decision of how to conduct a search. As the state DOJ stated in the 2018 opinion, “the exception only applies to the discussion of an individual public employee (emphasis theirs).” It’s intended to cover things like performance reviews, disciplinary action and job interviews.

And yet, the City Council held a closed-door session on March 18 to discuss the search. At that meeting, with the job already posted internally, Las Cruces’ elected officials ironed out the details of the search, Enriquez told me. Once again, they locked out their constituents.

I shared my concerns with Enriquez, but he brushed them aside. He said the Council didn’t break the law because no final vote had been taken outside a public meeting.

That’s absurd. 

Fundamental to the Open Meetings Act is your right to witness both the discussions and votes of the Council.

The state DOJ was crystal clear about this in the 2018 UNM opinion: “The Act requires public bodies to conduct their business openly so that all citizens can observe both the process and the final decision.” That assertion was based on a 1988 court ruling in Kleinberg v. Albuquerque Public Schools, which stated, “the public policy of this state, as expressed in the Act, is to conduct the public’s business in the open, allowing persons, so desiring, to attend and listen to the proceedings.”

Deliberations about how to conduct a hiring search must be held in public. Votes must always take place in public.

Trouble follows secrecy

The ENMU Board of Regents’ secret vote got them in trouble. 

Anthony Board of Trustees treated the mayor as an employee of the Council whose actions could be discussed in secret. But the mayor works for the public, not the Council, and the public is entitled to know about allegations of wrongdoing against her. The law required that the Council let the public observe its discussions.

Though the DOJ investigation of Bernalillo County commissioners is pending, it appears obvious that a quorum of commissioners broke the law. Members of a public policymaking body can’t coordinate with a quorum of their peers before a meeting to win a vote. 

The situation in Las Cruces is similar, but it’s especially egregious because the Las Cruces City Council is the reason we have a definition of a rolling quorum established in case law. In 2003, the Las Cruces Sun-News sued the city after councilors conducted a rolling quorum. The Sun-News won the case; the City Council and mayor had to eat dirt.

If any government body should be sensitive to this issue, it’s the Las Cruces City Council.

Violating the Open Meetings Act is a misdemeanor, but it’s rarely enforced with criminal charges.

When my investigative reporting revealed in 2002 that the Las Cruces Public Schools Board of Education had approved massive, secret incentives for the superintendent at a time when the district didn’t have the money to buy new textbooks for middle school students, the community recalled the two wrongdoers who were still on the school board. Then-Attorney General Patricia Madrid acted too, bringing charges and securing convictions against the five school board members.

Instead of prosecuting, the New Mexico DOJ usually advises public bodies that they’ve broken the law and directs them to correct the situation, as it did recently in response to complaints against ENMU and the Anthony Board of Trustees. 

It’s our job to force our elected officials to involve us in their decision-making. The New Mexico DOJ is giving us the information we need to act.

Democracy has eroded substantially in this country. While that truth might be most apparent in the dysfunction of our federal government, rebuilding democracy must start at the local level, in moments like these. Our city councils, county commissions, school boards, university regents, and other local elected and appointed bodies regularly make decisions that impact us greatly. In Las Cruces, the Council is facing difficult challenges related to homelessness, poverty and crime, among other things.

We have a right and a responsibility to know what our elected officials are considering so we can participate in the process. Too many of them are not making it easy. We must demand the transparency the law requires from our elected officials and hold them accountable when they slam the door in our faces and lock it.

There’s an upcoming chance to do something: The New Mexico DOJ is holding an open government training for elected officials and members of the public on June 26 at Las Cruces City Hall. 

You can register to attend in person or virtually, so it’s accessible to everyone in New Mexico. 

You’ll learn about the requirements in the Open Meetings Act and the Inspection of Public Records Act, which protects your right to see government documents and written communications. 

You’ll learn about the Governmental Conduct Act and related laws that hold officials accountable. 

I have already urged Enriquez and two Las Cruces city councilors to attend such a training. I certainly hope all elected officials from Las Cruces, Anthony, Bernalillo County and ENMU attend. 

I hope you can also attend. We need citizens who are trained to defend these laws. You can register here.

Heath Haussamen has been reporting on open government issues in New Mexico for more than 25 years. Reach him at haussamen.com, on social media @haussamen or by email at heath@haussamen.com.

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