{"id":2060,"date":"2007-08-03T16:16:00","date_gmt":"2007-08-03T22:16:00","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/2007\/08\/ag-king-talks-about-nmsu-situation\/"},"modified":"2007-08-03T16:16:00","modified_gmt":"2007-08-03T22:16:00","slug":"ag-king-talks-about-nmsu-situation","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2007\/08\/ag-king-talks-about-nmsu-situation\/","title":{"rendered":"AG King talks about NMSU situation"},"content":{"rendered":"

\"\"<\/a>The Attorney General\u2019s Office<\/a> has already begun considering whether the New Mexico State University Foundation<\/a> can legally keep its donor list secret. <\/p>\n

<\/o:p><\/p>\n

That\u2019s what Attorney General Gary King said today during an interview with me. King was in Las Cruces<\/st1:place><\/st1:city> to speak at a luncheon.<\/p>\n

<\/o:p><\/p>\n

\u201cI\u2019ve already assigned lawyers to start looking at these questions,\u201d King said.<\/p>\n

<\/o:p><\/p>\n

On first glance, he said, federal regulations allow foundations and other non-profits to keep the names and addresses of their donors secret. But there is a question, he said, about whether such foundations would also be categorized as public bodies under state law.<\/p>\n

<\/o:p><\/p>\n

Courts in a number of states have said in recent years that such foundations are, for purposes of government transparency laws, public agencies under those state\u2019s definitions. You can read more about that by clicking here<\/a>.<\/p>\n

<\/o:p><\/p>\n

A number of lawmakers will soon be filing a formal request that King\u2019s office consider the question of whether the NMSU Foundation can keep its donor list secret, but King said his office has begun work because it\u2019s been made aware of the issues and concerns.<\/p>\n

<\/o:p><\/p>\n

I asked him to consider the issue in a letter<\/a> sent a week ago by questioning whether the university, in denying my request for information about donors whose gifts were going to the compensation of the president and former men\u2019s basketball coach, had violated the state Inspection of Public Records Act<\/a>.<\/p>\n

<\/o:p><\/p>\n

I also asked the attorney general to consider:<\/p>\n

<\/o:p><\/p>\n

\u2022 Whether the regents violated the state Open Meetings Act<\/a> by meeting on July 17 even though the meeting was not properly noticed. The university postponed formal action until a July 23 meeting but still discussed the formation of public policy that day.<\/p>\n

<\/o:p><\/p>\n

\u2022 Whether the university violated the public records act by considering e-mail requests for records to be invalid and by refusing to release a new agreement between the foundation and university. Essentially, I requested by e-mail a copy of the new agreement between the university and foundation and was told e-mail is not a valid form of requesting such documents and, even if it were, the agreement wasn\u2019t going to be released, even though it had regents\u2019 approval, because it was not yet signed.<\/p>\n

<\/o:p><\/p>\n

\u2022 Whether the university violated the public records act in May, when I requested a copy of the operating agreement between the university and foundation, by providing me with one from 1991 but not updates to the agreement approved in 1993 and 2005.<\/p>\n

<\/o:p><\/p>\n

\u201cSome of the good lawyers in my civil division are going to look at those issues,\u201d King said.<\/p>\n

<\/o:p><\/p>\n

General statements on transparency laws<\/span><\/p>\n

<\/o:p><\/p>\n

Without speaking about the specific instances involving NMSU, King did opine on what he believes are some of the requirements of the two government transparency laws.<\/p>\n

<\/o:p><\/p>\n

He said that, in general, the definition of a public record \u201cis not dependent on a document being voted on by a public body.\u201d<\/p>\n

<\/o:p><\/p>\n

\n

He said his understanding is that a document generally becomes public \u201cwhen it\u2019s generated.\u201d<\/p>\n

<\/o:p><\/p>\n

Applying that to the case of the new foundation agreement \u2013 which is something I\u2019m doing, not something King did \u2013 it would have been public long before it was approved or signed by the regents.<\/p>\n

<\/o:p><\/p>\n

King also said he believes the Open Meetings Act \u201capplies to discussion as well as votes.\u201d The example has often been used, he said, that in a county with three commissioners, if two run into each other at the grocery store and discuss public business there, they can be in violation of the act.<\/p>\n

<\/o:p><\/p>\n

King cautioned that his office would have to consider the specific facts in each case.<\/p>\n

<\/o:p><\/p>\n

But \u2013 again, my analysis, not King\u2019s \u2013 the regents met to discuss policy on July 17 in a meeting that, by their own admission, didn\u2019t meet requirements. That\u2019s because, though the meeting was properly noticed to the media and on the Web site, a copy of the agenda was not posted at the university\u2019s communications office, as the regents require in their Open Meetings Act resolution.<\/p>\n

<\/o:p><\/p>\n

Wouldn\u2019t the example of the two county commissioners apply in this instance?<\/p>\n

<\/o:p><\/p>\n

As for the issue of e-mail records requests, King said New Mexico<\/st1:place><\/st1:state> law is silent. His attorneys have found some instances in other jurisdictions, however, where courts have ruled that e-mail is not a \u201cwriting\u201d under laws that exist there. Such rulings will have to be considered in light of New Mexico<\/st1:state><\/st1:place> law, he said.<\/p>\n

<\/o:p><\/p>\n

\u201cMy personal belief is that an e-mail ought to be treated as a written request,\u201d King said, adding that, once his attorneys complete their analysis, \u201cif we have no other way to clarify this, then I will seek legislation.\u201d<\/p>\n

<\/o:p><\/p>\n

The overall goal of such investigations is to be instructive, not punitive, King said. He said it will be \u201cgood to make these issues clear.\u201d<\/p>\n

<\/o:p><\/p>\n

Still, he said he won\u2019t be afraid to try to enforce the Open Meetings Act with criminal charges when necessary. He wasn\u2019t suggesting that it might be necessary in this instance. His comment was in response to a question I asked.<\/p>\n

<\/o:p><\/p>\n

Violations of the Open Meetings Act are punishable by a fine of up to $500 per violation. The public records act contains no criminal penalties for violations.<\/p>\n

<\/o:p><\/p>\n

King said he thinks it\u2019s probably a good idea to add a criminal penalty for violating the public records act, but said such a proposal would require serious consideration because it\u2019s a different situation than that of the Open Meetings Act.<\/p>\n

<\/o:p><\/p>\n

Open meetings violations are the responsibility of elected public officials. In the case of the public records act, it\u2019s not uncommon for the custodian of records to be an employee who isn\u2019t paid a lot.<\/p>\n

<\/o:p><\/p>\n

There\u2019s not yet a timetable for the release of the attorney general\u2019s opinion on the NMSU Foundation records or a response to my questions surrounding the Open Meetings and Inspection of Public Records acts.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Attorney General\u2019s Office has already begun considering whether the New Mexico State University Foundation can legally keep its donor list secret. That\u2019s what Attorney General Gary King said today during an interview with me. King was in Las Cruces to speak at a luncheon. \u201cI\u2019ve already assigned lawyers to start looking at these questions,\u201d […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2060","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/2060","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=2060"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/2060\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=2060"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=2060"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=2060"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}