Update on Open Meetings Act - PowerPoint Presentation

Update on Open Meetings Act NMSA 1978, Sections 10-15-1 to -4 New Mexico Foundation for Open Government 2019 Continuing Legal Education Seminar December 4, 2019 John Kreienkamp Assistant Attorney General Open Government Division

About the Open Government DivisionOffice of the Attorney General Structure: Civil Affairs & Criminal AffairsOGD is within Civil Affairs Represent approximately 80 state boards and commissions Have a variety of functions: Client representation Contract review Draft Official Attorney General Opinions Bill analysis Other duties as assigned Enforce Open Meetings Act (OMA) and Inspection of Public Records Act (IPRA )

This PresentationUpdate from Office of Attorney GeneralNo new significant appellate decisionsBased on complaints and client representation Focus on recent determinations and new issues Notices: missed deadlines Agendas: reasonable specificity Recent OAG determinations Telephonic participation Delegation New Mexico State Investment Council v. Weinstein Overview: areas of improvement and concern

OMA: Issues with Missed DeadlinesRegular meetingsNotice: at least 10 daysAgenda: at least 72 hours Special meetings Notice: at least 3 days Agenda: at least 72 hours Emergency meetings Only allowed if significant threat to public health, safety, or imminent and irreparable financial harm to public body Notice and agenda = 24 hours or less based on emergency Section 10-15-1(D)

OMA: Issues with Missed DeadlinesOAG is increasingly seeing problems caused by public bodies missing deadlines for regular meetingsMisses deadline for notice of regular meeting, still within deadline of special meeting Can public body simply re-designate the meeting as a special meeting? Generally, cannot simply call the meeting a special meeting Otherwise, would virtually eliminate OMA’s notice requirements Perhaps some flexibility to reconfigure the meeting as a special meeting EX: only address time-sensitive issues

Agendas: Online PostingMeeting agenda must be posted online 72 hours before meeting “if one is maintained” by public bodyNew issue: public body temporarily does not have a webmasterOAG: temporary vacancy or absence of webmaster does not relieve public body of online posting requirement Perhaps arguable based on “if one is maintained” New issue: websites and social media If public body does not have a website but does have social media, does agenda need to be posted to Facebook, Twitter, etc.? OAG has not weighed in on this issue yet Likely that posting on social media would be required At least a best practice

Agendas: Reasonable SpecificityBy far largest issue in OMA complaints to OAGSection 10-15-1(F): All meeting agendas must include “a list of specific items of business to be discussed or transacted at the meeting” Must give the public a reasonably clear idea about the subject Avoid general and broad termsNo case law as of yetOAG has opined on the subject repeatedly Section 10-15-1(F)

Reasonable SpecificityN.M. Atty. Gen. Letter to Kevin Gick, University of New Mexico (Aug. 8, 2018 ) Board of Regents eliminated several athletics programs under agenda item “action on athletics”; also entered closed session for “[d] iscussion and determination where appropriate of limited personnel matters ” OAG: not reasonably specific as to either item Failed to “provide the interested public with sufficient information to know which actions the Board might take at its meeting ” Must list the specific individual employee to be discussed by the Board

Reasonable SpecificityN.M. Atty. Gen. Letter to Adán E. Trujillo, Española/Rio Arriba E-911 Center Board of Directors (Oct. 3, 2019) In relevant part, Dispatch Center Board entered into closed session (according to the agenda) to discuss “Pending Litigation” without providing more specificity OAG : not reasonably specific Need to identify the particular litigation involved “ to satisfy the reasonable specificity requirement, the public body must list the specific individual employee to be discussed by the Board ” N.M. Atty. Gen. Letter to Tanya Mangum (Apr. 29, 2019 ) Town of Edgewood Council had entered into closed session to under item for “discussion of the purchase, acquisition or disposal of real property” without providing more specificity OAG: not reasonably specific Did not “rise to the level of reasonable specificity because no public member could possibly know which real property the Town intended to discuss based on the agenda”

Reasonable SpecificityN.M. Atty. Gen. Letter to Shannon Reynolds (Jun. 20, 2019) Doña Ana County Board of Commissioners discussed County Manager’s job performance and increased his salary under the item: “ Discuss and Take Action as May Be Appropriate Related to the Annual Evaluation and Related Issues Regarding the County Manager…” OAG: was reasonably specific “sufficiently conveyed to the public a general description of the subject at hand” Notified the public that the Commission was planning on taking action as to County Manager’s employment

Minutes: MisunderstandingsOAG receives complaints from the public arguing that public bodies failed to post minutes onlineOMA does not require minutes to be posted online More of a best practice, not a requirement New issue: public bodies routinely failing to review minutes at special meetings Draft minutes “shall be approved, amended or disapproved at the next meeting where a quorum is present” Source of many complaints to OAG Not a major violation, but is a widespread misunderstanding

Telephonic AttendanceIncreasingly a problem in New MexicoOMA sometimes permits members to participate in meetings via phone, skype, etc. Requirements: Authorized by a rule by the public body Each member identifiable when speaking All participants can hear each other at same time Public can hear all members who speak “Difficult or impossible” to attend in person Can’t plan a meeting so members can attend telephonically Section 10-15-1(C)

OMA and DelegationOMA applies to public bodies who wield delegated authority Delegation can become an OMA issue as it pertains to who must make a decisionBoard vs. staff (Ex: county commission or county manager) Can arise often in procurement context Important because actions taken in violation of OMA can be deemed invalid Generally, administrative agencies cannot delegate discretionary authority “ Administrative bodies and officers cannot delegate power, authority and functions which under the law may be exercised only by them, which are quasi-judicial in character, or which requires the exercise of judgment.” Kerr-McGee Nuclear Corp. v. New Mexico Envtl . Imp. Bd. , 1981-NMCA-044, ¶ 52

New Mexico State Investment Council v. Weinstein2016-NMCA-069 Facts : appellants challenged several settlement agreements to which the State Investment Council (the “Council”) was a party but it did not itself initially vote to approve; instead , the settlement agreements were approved by the Council’s Litigation Committee; months later, the settlement agreements were ratified by the Council Holding: Litigation Committee did not have authority to settle the cases, but the Council did legally ratify them later Court looked at Council’s statutory authority and found that it was effectively prohibited from delegating authority to settle litigation to the committee Because the settlement agreements were not approved by the Council, they were invalid Court of Appeals also held that the litigation committee would have been subject to OMA if it had proper delegated authority

OMA Exceptions – (2) Limited Personnel Matters“discussion of hiring, promotion, demotion, dismissal, assignment or resignation of, or the investigation or consideration of complaints or charges against, any individual public employee ” Does not cover general personnel policy Limited to individual employeesNeeds to be an employee over whom the public body has supervisory authorityNeed to specify the employee on the agenda Either by name or by position, if that is specific Does not preclude aggrieved public employee from demanding public hearing Final action must be taken in an open meeting Kleinberg v. Bd. of Educ. of Albuquerque Pub. Sch. , 1988-NMCA-014, ¶ 24: held that a local school board “erred by announcing its decision in private, without a public vote and without holding a public meeting to announce its final action” Section 10-15-1(H)(2)

Areas of Improvement and ConcernFewer new complaints alleging: Public body engaged in a “rolling quorum” Deficiencies in contents of meeting minutes (proposals considered, votes, etc.) Failure to follow meeting closure procedures Many new complaints on: Agendas lacking reasonable specificity Timing issues with notice and agendas Public bodies taking action outside of an open meeting

Questions?Consult your attorneyAttorney General Open Meetings Act and Inspection of Public Records Act Compliance Guides, www.nmag.gov NM Attorney General’s Office Open Government Division, (505) 490-4060 NM Foundation for Open Governmentwww.nmfog.org

408 Galisteo St., Santa Fe, NM 87501 www.nmag.gov CIVIL AFFAIRS: Open Government Division (505) 490-4060