The people are best served by elected officials and city employees who know and heed the underlying theories of democracy—rule of law, not rule by authoritarians, three co-equal branches of government, checks and balances, due process and open government.
The New Mexico Open Meetings Act (OMA) is the most important state law that must be upheld in order to maintain a democratic local government.
New Truth or Consequences City Manager Gary Whitehead knows the importance of the OMA, as demonstrated in his analysis below. In his brief time on the job, he has already made clear, in one city meeting and in his willingness to speak to the press, that he intends to be a transparent leader.
I asked him a question about a possible violation of the OMA and his thoughtful and critical analysis greatly impressed me—and corrected and refined my understanding of the OMA.
My query to Whitehead is in italics. The bold portions are excerpts from the attorney general’s Open Meetings Act publication, linked below.
I am concerned that the city has a longstanding practice of violating the Open Meetings Act by having two city commissioners meet on the Wednesday prior to the following Wednesday’s regular city meeting to discuss the agenda.
Mayor Hechler described the practice during the Feb. 12 meeting. I have been made aware of the practice by city commissioners who have spoken to me off the record in years past, but Hechler’s statements last week is the first time such a practice has been verified during a city meeting.
Please refer to page 8 of that guide for the example below: Concerning OMA 10-15-1 B., example 5, page 8 of linked OMA Guide:
https://www.nmag.gov/wp-content/uploads/Open-Meetings-Act-Compliance-Guide.pdf
Example 5: Mr. Jones and Mr. Smith both serve on a board of county commissioners and constitute a quorum of that board. Jones and Smith are also in the same business and frequently run into each other in the course of a business day. Moreover, they are friends and see each other at various social functions. The Act is not intended to alter the business or social relationships of these men so long as they are not meeting in their capacity as county commissioners for the purpose of conducting public business. Should public business arise in such business or social settings, the two men should avoid discussing the matter between themselves. Rather, the matter should be raised, discussed and decided in an open meeting of the board.
Will you please comment on the practice of two city commissioners meeting to discuss the agenda in light of this example, and if you think it is an OMA violation?
Whitehead’s response is in italics, the bold portion are the excerpts he took from the attorney general’s OMA publication.
I do not believe that the presence of two commissioners of a five-member commission violates the OMA. In the example cited, a violation could occur as the two (2) members constitute a quorum of a 3-person board. The act specifically identifies the conditions needed for the OMA to become active. These conditions are set forth on page 2 paragraph B.:
- All meetings of a quorum of members of any board, commission, administrative adjudicatory body or other policy making body of any state agency, any agency or authority of any county, municipality, district or any political subdivision, held for the purpose of formulating public policy, including the development of personnel policy, rules, regulations or ordinances, discussing public business or for the purpose of taking any action within the authority of or the delegated authority of any board, commission or other policy making body are declared to be public meetings open to the public at all times, except as otherwise provided in the constitution of New Mexico or the Open Meetings Act. No public meeting once convened that is otherwise required to be open pursuant to the Open Meetings Act shall be closed or dissolved into small groups or committees for the purpose of permitting the closing of the meeting.
The elected officials must have access to staff, the public and advice from professionals in a respective field. This ability to gather knowledge is a must to develop good public policy.
Therefore, the need for elected officials to serve or be present on a committee would be within their scope of work. The OMA has a provision to cover such work on a committee–Section III, 10-15-1, formation of public policy, page 8 item 2b, provides the elected official with guidance on how they are to serve on such a committee.The Act specifically refers only to meetings of a quorum of the members of a public body. Meetings of a committee of a public body that is composed of less than a quorum of the members or of non-members of the public body may not be subject to the provisions of the Act if the committee engages solely in fact-finding, simply executes the policy decisions or final actions of the public body and does not otherwise act as a policy making body.
The OMA provides examples as best ideas and good practices for elected officials. No place in the act does it specifically state an elected official “shall not” participate. It is the responsibility of each individual member of the public body, along with staff to color inside the lines of the OMA.
Finally, Section 10-15-3 page 5, would make any type of action taken by a quorum of commissioners acting outside the requirements of the OMA invalid. Again, the responsibility falls to the individual commissioners, management and staff to avoid any such action, as that action(s) would be nullified:
- No resolution, rule, regulation, ordinance or action of any board, commission, committee or other policy making body shall be valid unless taken or made at a meeting held in accordance with the requirements of NMSA 1978, Section 10-15-1. Every resolution, rule, regulation, ordinance or action of any board, commission, committee or other policy making body shall be presumed to have been taken or made at a meeting held in accordance with the requirements of NMSA 1978, Section 10-15-1.