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Heath Haussamen \/ NMPolitics.net<\/p>
Las Cruces City Hall<\/p><\/div>\n
The city’s defense came in a motion<\/a>\u00a0filed Wednesday asking for the\u00a0dismissal of\u00a0a lawsuit<\/a> NMPolitics.net filed that seeks\u00a0the release of dozens of city manager applications held by a\u00a0private search firm, The Mercer Group. NMPolitics.net alleges that the city is in violation of the state’s Inspection of Public Records Act<\/a> (IPRA) for not releasing the applications.\u00a0The city disagrees.<\/p>\n “The City has no legal mechanism under IPRA to compel the divulging of private information held by an independent contractor,” Deputy City Attorney Robert G. Cates wrote in the city’s motion seeking dismissal of the lawsuit.<\/p>\n As an\u00a0alternative to dismissal, the city requests that\u00a0Third Judicial District Judge James T. Martin grant a summary judgment in favor of the city.<\/p>\n The N.M. Court of Appeals ruled\u00a0in 2009 that state law requires the release of all applications<\/a> for a city manager position. The city isn’t disputing that Court of Appeals\u00a0ruling. It has released 11 manager applications<\/a> The Mercer Group provided to the city.<\/p>\n The Mercer Group, acting as the city’s contract search firm, has received dozens of other applications it hasn’t turned over to the city — and the city hasn’t provided\u00a0to NMPolitics.net. If the city was running its own search, those applications would also be in its possession and arguably public records based on the 2009 Court of Appeals ruling.<\/p>\n Allowing the city to avoid a clear state law by outsourcing administration of its city manager search sets a dangerous precedent, NMPolitics.net contends.<\/p>\n “What\u2019s next? Can a district attorney outsource an investigation into an officer-involved shooting so he or she can clear the officer of wrongdoing without showing\u00a0the public the evidence to prove the shooting\u00a0was justified?” NMPolitics.net editor and publisher Heath Haussamen asked in a recent commentary<\/a>. “No. The city\u2019s action can\u2019t be allowed to stand.”<\/p>\n A\u00a0second Court of Appeals case, 2012\u2019s Toomey v. Truth or Consequences<\/a><\/em>, is relevant to NMPolitics.net’s lawsuit. 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 also set guidelines for determining\u00a0whether documents held by a contractor are public records.<\/p>\n Those guidelines direct governments consider\u00a0factors 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.<\/p>\n NMPolitics.net believes those guidelines require the release of the city manager applications, but the city takes the opposite stance. Las Cruces\u00a0contends its contract with The Mercer Group meets only two\u00a0of the nine factors in the Toomey<\/em> test. It says the Court of Appeals ruling doesn’t mean that the work of every government contractor is subject to public inspection.<\/p>\n The purpose of the Toomey<\/em> test is “to determine if sufficient contacts between private entity and public entity exist such that the activity of one is necessarily the activity of the other,” the city stated in its motion to dismiss NMPolitics.net’s lawsuit.<\/p>\n Though job\u00a0searches are normally conducted by city staff, the city outsourced this\u00a0task to avoid a conflict of interest in staffers helping select their next supervisor, according to an affidavit\u00a0from recently retired\u00a0City Manager Robert Garza, which was included with the city’s filing.<\/p>\n The Mercer Group’s duties included only referring to the city applications that, “in the professional judgment of The Mercer Group, represent those candidates deemed to have skills and personality traits most closely aligned with the expectations of City Council,” Garza’s affidavit states.<\/p>\n Public records are defined in IPRA as all records “that are used, created, received, maintained, or held by or on behalf of any public body and relate to public business.” NMPolitics.net maintains that The Mercer Group has received\u00a0city manager applications on behalf of the city that meet IPRA’s definition of public records.<\/p>\n NMPolitics.net has also named The Mercer Group as a defendant in its lawsuit. The company has until Tuesday to file its response. NMPolitics.net must file a response to the city’s motion to dismiss in the next two weeks.<\/p>\n