Did commission violate the Open Meetings Act?

Doña Ana County’s lead attorney says the commission didn’t violate the New Mexico Open Meetings Act last week by holding a closed session with only five hours of notice. Though I’m admittedly not a trained attorney, I don’t think I agree.

The county commission gave notice at 9:30 a.m. Tuesday that it was going to meet at 2:30 p.m. the same day in closed session to discuss a pending lawsuit alleging that staffers at the county detention center were illegally strip-searching inmates.

The county’s ordinance on compliance with the Open Meetings Act requires 3-hour notice for emergency meetings and 48-hour notice for special meetings. An emergency meeting can be called “only under unforeseen circumstances which demand immediate action to protect the health, safety, and property of citizens or to protect the public body from substantial financial loss.”

County Attorney John Caldwell says closed sessions aren’t regular, special or emergency meetings – they’re simply closed sessions – and he referred to a provision in the act that states that closed sessions “shall not be held until public notice, appropriate under the circumstances,” is given to the public.

So he acknowledges that public notice must be given. He simply says closed meetings aren’t subject to the time requirements of regular, special and emergency meetings.

I’m not convinced. The act lists a number of exemptions that allow public bodies to meet in closed session, and pending lawsuits is one of them. The section of the act that lists the exemptions also lists provisions of the act that don’t apply to valid closed-session meetings. One provision that does apply, however, states that meeting notices have to include agendas and that, “except in the case of an emergency, the agenda shall be available to the public at least twenty-four hours prior to the meeting.”

Since that provision applies to the closed-session section of the act, doesn’t that at least imply that closed-session meetings have to be classified as emergencies in order to justify giving less than 24 hours’ notice? And doesn’t that imply that closed sessions, just like public sessions, should be classified as regular, special or emergency meetings?

In addition, the attorney general’s compliance guide for the act includes a number of examples to help public bodies follow the act. The commentary on one states that the section cited by Caldwell requires that “the public body must give notice of the meeting to its members and to the public in accordance with its policy regarding notice of special meetings or as may be reasonable under the circumstances.” Though that commentary isn’t law, doesn’t it indicate that the attorney general’s office believes closed sessions must be classified as special meetings or other, specific types of meetings?

Bob Johnson, director of the New Mexico Foundation for Open Government, thinks so. He told the Las Cruces Sun-News that closed-session meetings do have to be classified as regular, special or emergency.

I tend to cautiously agree with Johnson, and I think there was probably a technical violation of the act in this instance, but I’m not going to make a big stink about it. The reality is that the public couldn’t attend the meeting anyway, because it was closed, and what was important was that we got to know about it. The county ensured that happened.

But I believe the intent of the Open Meetings Act is not just to ensure the public can attend public meetings, but also that the public knows what its officials are doing, even if it’s only a few details because they’re meeting behind closed doors. When I was a reporter in Santa Fe, a public water utility board was meeting in closed session, without telling the public, to discuss lawsuits related to its attempt to takeover a utility.

After I wrote some articles and the attorney general began investigating, the board stopped doing that, admitted it had violated the Open Meetings Act and began noticing closed sessions as regular, special or emergency meetings.

In the case of Tuesday’s meeting of commissioners, we know little about why the commission met on such short notice. Caldwell told the Sun-News it had to do with the county facing a deadline from lawsuit opponents related to settlement negotiations. One commissioner said the meeting was urgent.

If Doña Ana County classified closed-session meetings as regular, special or emergency, then it would have had to tell the public a little more about the reason for this meeting, in order to justify emergency status, before holding it on such short notice. Additional public disclosure is always a good thing. It holds public officials accountable to those who elected them.

Perhaps our lawmakers should ask the attorney general for clarification and propose legislation that makes this one crystal clear.