The private company running Las Cruces’ city manager search has filed a motion to dismiss NMPolitics.net’s lawsuit that seeks the release of dozens of applications for the job.
Heath Haussamen / NMPolitics.net
Las Cruces City Hall
The Mercer Group joins the City of Las Cruces in seeking dismissal of the lawsuit. The city filed its own motion last week.
Las Cruces has released the 11 city manager applications it received from The Mercer Group. But the city has refused to release dozens more, arguing that the private contractor, not the city, has possession of them so they don’t have to be released. NMPolitics.net argues in its lawsuit that the city can’t avoid transparency law by outsourcing government services.
The Mercer Group argues in its motion, which was filed Friday, that the search firm’s contract with the city doesn’t require it to provide the records. And it says the state’s Inspection of Public Records Act (IPRA) doesn’t apply to the company.
The Mercer Group provided the 11 applications to the city that “most closely matched the selection criteria for the City Manager position,” the filing states. “Mercer was not required to provide or disclose to the City any information about applicants who were not included. … The City does not have access to this information under the Agreement or any other arrangement.”
The firm is represented in court by Las Cruces attorneys Cody R. Rogers and Joni L. Autrey.
State law requires the release of all applications for a city manager position, the N.M. Court of Appeals ruled in 2009. If the city was running its own search, the applications held by The Mercer Group would be in the city’s possession and arguably public records based on the 2009 ruling.
Allowing the city to avoid a clear state law by outsourcing administration of its city manager search sets a dangerous precedent, NMPolitics.net contends.
A second Court of Appeals case, 2012’s Toomey v. Truth or Consequences, is relevant to NMPolitics.net’s lawsuit. In that case, the Court ordered the town of T or C to release video recordings of public meetings made by a government contractor. The Court also set guidelines for determining whether documents held by a contractor are public records.
Those guidelines direct governments consider factors including the level of funding for the contractor’s work, whether the contractor is performing a function the government agency would otherwise perform, and whether the contractor’s work takes place on publicly owned property.
NMPolitics.net believes those guidelines require the release of the city manager applications, but the city takes the opposite stance. Las Cruces contends its contract with The Mercer Group meets only two of the nine factors in the Toomey test. The Mercer Group agreed with the city in its filing.
As an alternative to dismissal, the city requests that Third Judicial District Judge James T. Martin grant a summary judgment in favor of the city. The city has requested a hearing before Judge James T. Martin on its motion.