A judge on Wednesday denied requests by the City of Las Cruces and The Mercer Group, a national consulting firm, to dismiss a lawsuit brought against them by the publisher of NMPolitics.net that seeks the release of dozens of applications for Las Cruces city manager.
Third Judicial District Judge James T. Martin also dismissed an alternate motion by the city asking for summary judgment in the city’s favor. Martin’s rulings clear the way for the attorney representing Haussamen Publications, the company that publishes NMPolitics.net, to begin discovery proceedings and for the case to proceed.
The lawsuit stems from an Inspection of Public Records Act (IPRA) request Heath Haussamen, NMPolitics.net’s editor and publisher, filed on May 4 requesting all applications for the city manager vacancy created by Robert Garza’s retirement earlier this year.
The request sought all applications the city had received, as well as all those The Mercer Group had received. The city released 11 applicants’ résumés and cover letters. That was all the city clerk had received from Mercer at the time, city attorney Robert Cates said at Wednesday’s hearing. The city divulged all records related to the city manager search in its possession, Cates said, including “documentation related to the contract the City of Las Cruces has with The Mercer Group Inc.”
About 40 additional applications The Mercer Group received for the Las Cruces job were not released in response to Haussamen’s IPRA request. IPRA is a New Mexico state law established in 1977 that allows, with few exceptions, any citizen to inspect any government record. McElhinney argued at Wednesday’s hearing that the N.M. Legislature “passed IPRA because it wanted to ensure that the public was entitled to the greatest possible information on the affairs of government.”
“What is more concerning for the public than selecting the next person that’s going to run the City of Las Cruces?” McElhinney asked.
The Toomey test
A 2009 N.M. Court of Appeals case involving the City of Farmington has established that city manager applications are public records in the state – and the city acknowledged that those in its possession are public when it released them to Haussamen.
But those The Mercer Group, as a private entity, holds are not public, Cates argued at Wednesday’s hearing.
“The activities of Mercer do not rise to the level that can be reached through IPRA,” he said. His argument is based on the so-called Toomey test, which comes from the 2012 Court of Appeals case Toomey v. City of Truth or Consequences.
In Toomey, the Court ordered Truth or Consequences to release video recordings of public meetings made by a private contractor. This case established a nine-point test to be used in determining whether IPRA applies to private entities.
The court is to look at:
- What is the level of public funding?
- Is there a comingling of funds?
- Is the activity conducted on publicly owned property?
- Are the services that have been contracted out to a private entity an integral part of the public body’s decision-making process?
- Is the contracted private entity performing a service the public body would otherwise perform?
- What is the level of control the public entity has over the private entity concerning services rendered?
- Did the public body create the private entity?
- Does the public body have financial interest in the private entity?
- For whose benefit does the private entity function?
There’s no requirement that a case meet a majority of the nine points in order for IPRA to apply. It’s possible only one could apply and a judge could still rule that IPRA applies. But the court must consider the nine points before issuing a ruling.
Still, NMPolitics.net’s lawsuit fails enough points on the Toomey test to be dismissed, Cates argued.
“What we have with Mercer is a contract for $15,000 (plus an additional $8,000 for traveling expenses) and we have advice coming to the City Council about how to best position themselves to attract candidates for the position of city manager,” Cates said. He said The Mercer Group “screened” applicants based on criteria they helped the City Council, which hires the city manager, establish.
“People who meet those qualifications are being screened in and those who don’t meet the qualifications are being screened out,” Cates said.
McElhinney said such screening was part of the decision-making process of hiring a city manager in making the case that the Toomey test applied. Martin, in questioning Cates, mentioned McElhinney’s argument.
“But that’s being done by Mercer. That’s not being done in consultation with the city, is it?” Martin asked about the screening. “If the requirement is you have to have a college degree and John Doe has a high school diploma and he applies anyway, that application wouldn’t make it past Mercer, would it?”
“Correct,” Gates said.
“Wouldn’t the city be told, ‘John Doe applied but he didn’t make it?’” Martin asked. “Or is Mercer not even telling the city about John Doe?”
After some back and forth, Cates said his understanding was that in one case, “we did have an individual who did not technically meet the qualifications that had been set by the city but the city asked to see the résumé anyway because the means by which the individual had not met the qualifications were slight.” He said City Council can see the applications Mercer has screened out.
“How do they know they exist if they don’t see them?” Martin asked.
“That’s the relationship they have with Mercer,” Cates replied, saying the city “is not barred from any of the information that Mercer has.”
“The city responded to the IPRA request with all the information that is currently in the city’s possession,” Cates said. “…The city at this point is not in the position to compel its private contractor to give it information simply on the basis of an IPRA request. If the City Council wants to see the information from Mercer, it is available to the City Council at its discretion.”
Working ‘on behalf of the city’
McElhinney argued IPRA should apply to Mercer and the additional applications should be released in part because The Mercer Group “was clearly acting on behalf of the city.” The city, he argued, “has done much more than just delegate a search.” Mercer’s screening of applications, he said, and its authority to decide which to send to the City Council for consideration, “shows (Mercer) is exercising more than just doing a search.”
“It’s clear there was some judgment and some discretion that would ordinarily be exercised by the City Council,” McElhinney said.
The case meets several parts of the Toomey test, McElhinney argued: Some of the company’s work was done on public property. Services contracted out to Mercer are an integral part of the City Council’s decision-making process. Mercer is performing a service the city would otherwise perform. And Mercer is doing work for the city.
The City Council retains the ability to hire the next city manager, Cates argued, and McElhinney acknowledged. But Mercer had the ability to influence the decision by deciding which applications to forward, McElhinney said.
“We might have had the best candidate who applied and maybe somebody at Mercer doesn’t like him,” he said. “Or maybe Mercer has another client, maybe they also help out the City of Phoenix, and they want that person not to go to Las Cruces but they would rather Phoenix get that person’s application because maybe Phoenix is paying $50,000 instead of the City of Las Cruces’ measly $15,000.”
Cates said the city’s contract with Mercer specifically says Mercer’s role in the city manager search is limited to interviewing and advertising for the position.
“There’s no delegation of authority (from the City Council to Mercer),” he said. And, refuting a point on the Toomey test, Cates said both parties — the city and Mercer — benefit from the contract, as the city will hopefully receive a new manager and Mercer obtains its fee of $15,000.
Cody Rogers, Mercer’s attorney, made a similar argument. “Just because there’s an agreement between (the City of Las Cruces and Mercer) does not mean that the private entity is acting on behalf of the public body,” she said.
Rogers said the instance in which an applicant’s résumé was sent to the City Council despite being screened out by Mercer shows that the City Council did not delegate its discretion to Mercer.
Many of the points argued at Wednesday’s hearing will likely be debated at a later date as Martin decides whether to order release of the applications in Mercer’s possession.
Now that Martin has allowed the lawsuit to move forward, the city must file a response to NMPolitics.net’s claim that the applications should be released. And McElhinney can proceed with discovery, which he said could include seeking records and taking depositions.
This breaking news article has been updated.