![\"Las](\"http:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2015\/08\/LasCrucesCityHall1-336x186.jpg\")
Heath Haussamen \/ NMPolitics.net<\/p>
Las Cruces City Hall<\/p><\/div>\n
And yet, while the City of Las Cruces has released 11 city manager applications, it says it can keep secret\u00a0dozens more because they are held by the private contractor running the search \u2013 The Mercer Group \u2013 and not by city government.<\/p>\n
NMPolitics.net disagrees. Its complaint<\/a> names the City of Las Cruces and The Mercer Group as defendants and seeks the release of all city manager applications held by either entity.<\/p>\n \u201cThe City of Las Cruces can\u2019t avoid public disclosure and scrutiny by outsourcing facilitation of its city manager search,\u201d said Heath Haussamen, NMPolitics.net\u2019s editor and publisher.<\/p>\n The mayor and city councilors interviewed three applicants for the city manager job several weeks ago. City officials initially said they didn\u2019t intend to release those candidates\u2019 identities, citing concerns that public disclosure could discourage qualified applicants.<\/p>\n But state law doesn\u2019t allow confidentiality. As NMPolitics.net reported\u00a0on May 4<\/a>, the Court of Appeals ruled in a 2009 case against the City of Farmington that the public has the right to see all applications for a city manager job in New Mexico. NMPolitics.net filed a formal request under the state\u2019s Inspection of Public Records Act<\/a> on May 4 seeking all Las Cruces city manager applications received by the city or The Mercer Group.<\/p>\n Mayor Ken Miyagishima, after learning about the Farmington case and NMPolitics.net\u2019s records request, released the names of the three candidates who were interviewed<\/a>. He said he would leave the decision on whether to release their applications \u2013 and applications submitted by dozens of other people \u2013 to the city\u2019s lawyers.<\/p>\n In mid-May the city released 11 applications<\/a>, including the three submitted by the candidates who were interviewed. At least 40 other applications weren\u2019t released.<\/p>\n \u201c\u2026 it is the opinion of the City Attorney that The Mercer Group itself is a private entity and not a public entity that is subject to IPRA,\u201d David Aguayo, senior office assistant in the City Clerk\u2019s Office, wrote in\u00a0a May 13 response\u00a0<\/a>to NMPolitics.net\u2019s records request. \u201cThe private documents gathered by Mercer in the fulfillment of their contract are not public records until they are delivered to the city.\u201d<\/p>\n New Mexico\u2019s top transparency advocacy organization, The N.M. Foundation for Open Government, disagrees. \u201cEmployment applications for public jobs are public records in New Mexico. A public entity shouldn\u2019t be able to skirt that requirement by running the applications through a third party,\u201d said Greg Williams, the FOG Board president and an attorney who helped litigate the Farmington case.<\/p>\n The other relevant Court of Appeals case is 2012\u2019s Toomey v. Truth or Consequences<\/a><\/em>. In that case, the Court ordered the town of T or C to\u00a0release video recordings\u00a0of public meetings<\/a> made by a government contractor. The Court of Appeals also set guidelines\u00a0judges should follow when considering whether documents held by a contractor are public records.<\/p>\n Those guidelines include considering\u00a0whether the private entity is performing a function the government agency would otherwise perform, and for whose benefit the private entity is functioning. The City of Las Cruces cited the Toomey<\/em> ruling as justification for withholding city manager applications held by The Mercer Group, but it didn\u2019t elaborate.<\/p>\n NMPolitics.net believes the guidelines set by the Toomey<\/em> ruling actually require the release of applications held by The Mercer Group.<\/p>\n As to fears expressed by some officials in Las Cruces that disclosure of applications would discourage qualified people from applying, the Court of Appeals ruled in the\u00a0Farmington case<\/a> that when an application \u201cis for a high-ranking public position, the public\u2019s interest in disclosure outweighs the City\u2019s concern that fewer people will apply, and, thus, disclosure is required.\u201d<\/p>\n Haussamen said NMPolitics.net is willing to have \u2013 and even help facilitate \u2013 a public discussion on whether state law related to the release of city manager applications should be changed.<\/p>\n \u201cBut current law requires disclosure,\u201d Haussamen said. \u201cWe won\u2019t sit idly by and let the city break the law.\u201d<\/p>\n The city manager search is ongoing. Officials have not named finalists for the position. Robert Garza retired from the job last week<\/a>. Assistant City Manager Daniel Avila is serving as interim city manager.<\/p>\n