How the City Council is Allowed to Meet in Secret—and Why It Does
by R Harrison Dilday
"A representative government is dependent upon an informed electorate." Thus begins New Mexico's Open Meetings Act, which makes transparency a central responsibility of public officials. In Santa Fe, that transparency exists in the form of City Council meetings, which are held biweekly and are open to the public.
But in recent years, city officials have found ways to circumvent that requirement, meeting behind closed doors when taxpayer money is at stake.
According to SFR's analysis of City Council meeting minutes dating back to 2007, more than half of the council's meetings traditionally involve an "executive session," or portion of the meeting that is closed to the public. What's more, city councilors enter into executive session more frequently, SFR has found, when high-dollar deals or sensitive issues are concerned.
In some ways, this makes sense: The city must protect itself—and taxpayers' money—when litigation is likely or sensitive real-estate deals are pending. But the frequency with which Santa Fe city councilors hold executive sessions, and the lack of oversight as to what's discussed within those sessions, raises questions about whether the public truly is being kept informed.
SFR conducted an exhaus-tive analysis of Santa Fe City Council meeting minutes, examining when and why the council entered into executive session. We then compared these records with other jurisdictions in order to provide context. We found a consistent pattern of frequent executive sessions in Santa Fe, with a spike in the closed-door meetings when a major project, such as the city's recent purchase of the Market Station building in the Railyard, was at stake [news, April 25: "Third Rail"].
Between Jan. 10, 2007 and April 25, 2012, the Santa Fe City Council held 126 regularly scheduled meetings. During that time, the council voted to enter into executive session 84 times—a rate of 66.6 percent. In fact, in every individual year analyzed, at least 52 percent of all meetings have included an executive session. In 2007, that figure reached an astounding 90.9 percent.
By comparison, between 2009 and 2011, the Las Cruces City Council held a closed session during only 29.8 percent of its meetings. Rio Rancho, a city of comparable population to Santa Fe, met behind closed doors only three times over the course of the 47 open meetings its city council held in the past three years. (Some jurisdictions proved less transparent: Between January 11, 2011 and March 27, 2012, the Santa Fe County Board of Commissioners met 28 times; 25 of those meetings included an executive session.)
According to the Open Meetings Act, certain situations do justify closed-door sessions. But while Santa Fe's use of executive sessions may technically be legal, some critics say officials have used the law's ambiguity to err on the side of confidentiality, not transparency.
"Public business should be discussed in public," Gwyneth Doland, the executive director of the New Mexico Foundation for Open Government, tells SFR. "The council should make very limited use of executive sessions. It should be the exception, not the rule."
One key exception to the OMA's public-meetings requirement, for instance, allows public officials to meet privately when the subject involves attorney-client privilege pertaining to threatened litigation. But the law stops short of explicitly defining the term "threatened." Former Santa Fe City Councilor Karen Heldmeyer says this lack of specificity allows "any number of people to stomp their foot and say, 'I'm threatening litigation'—and have their issue discussed behind closed doors."
Santa Fe City Attorney Geno Zamora explains that the term must be taken at "face value." Threatened litigation can come in the form of a letter or verbal threat, he says; once a lawsuit is filed, it becomes "pending."
Of the 84 executive sessions initiated by the Santa Fe City Council during the past five years, a total of 40—nearly half of the executive sessions held—concerned threatened or pending litigation.
"At any time, the city faces a lot of litigation," Zamora says.
According to online court records, however, the City of Santa Fe has been involved in 382 lawsuits over the past five years. Rio Rancho, by contrast, has been involved in 393, yet has managed to utilize executive sessions in less than 1 percent of its meetings.
Heldmeyer concedes that while there are times when executive sessions may be used correctly, it's also "a shield sometimes people hide behind because they don't want public discussion."
In part, Santa Fe's frequent use of executive sessions is an outgrowth of a 2010 resolution, sponsored by City Councilor Patti Bushee, that requires the City Council meet, "in executive session, on at least a monthly basis, to provide a summary of the status of all pending legal matters…for which the City of Santa Fe is incurring attorney's fees and costs."
The motivation behind the requirement wasn't to increase the number of closed sessions, Bushee explains, but rather to guarantee a monthly legal report, something the council wasn't receiving at the time.
"I personally just asked that we get the report," she says. "If [the city attorney] wants to put it on attorney-client privilege, great."
Zamora says that he and Bushee never specifically discussed the executive session requirement, but included it "based on best practice." Basically, if the council wants to discuss litigation, the matters must be discussed behind closed doors in order to ensure that the opposition does not gain the upper hand.
Invoking another OMA exception, 20 executive sessions were approved for “action regarding the purchase, acquisition or disposal of real property,” many to discuss the purchase of the College of Santa Fe, or most recently the purchase of property in the Railyard district from Railyard Co., LLC. The OMA states that any portion of a meeting concerning purchases “in an amount exceeding $2,000 that can be made only from one source” may be held in executive session.
When the Santa Fe City Council votes to go into executive session, those councilors who choose to participate leave the council chambers and confer privately, in a separate room. The issues to be discussed are previously acknowledged in public, via the council meeting agenda. Once the session is complete, the participating council members return and state that only the items identified on the meeting agenda were discussed and no decision was voted on.
Councilors have the option of abstaining from the executive session and sitting out of the closed-door discussion. Of the 84 total executive sessions held since 2007, City Councilor Patti Bushee has voted against or abstained from nine. Former City Councilor Miguel Chavez, who recently won the Democractic primary election for Santa Fe County Commissioner and whom both Bushee and Heldmeyer consider an advocate for government transparency, also voted against or abstained from nine sessions.
The concept of the executive session is not unique to New Mexico. The original idea comes from the US Senate, where senators once discussed executive business (matters introduced by the president rather than by other senators) in private, as a courtesy to the president. This practice has mostly been abandoned in modern times. However, the idea of the closed session has proliferated among city councils and boards of directors across the country.
In Santa Fe, executive sessions seem to be "an increasing trend," Heldmeyer says, "and it's one that started with the discussion of annexation."
The City of Santa Fe first began discussing annexing certain county-owned areas back in 2007. Since then, two phases of the planned annexation process have been completed; the final phase, including areas north of Agua Fría Road and east of the Agua Fría Traditional Historic Community, still remains.
According to Heldmeyer, in the early stages of annexation, the city and Santa Fe County sued each other over a land dispute. While both sides had viable legal concerns, the upshot was to keep the entire annexation discussion protected under attorney-client privilege—in other words, closed to the public.
"That's what both the city and county wanted," Heldmeyer says. "There are people with strong opinions, and both the city and the county didn't particularly want to hear them."
Another key concern related to executive sessions, aside from their alarming frequency, is that, once out of public view, the conversation may drift to matters beyond the agreed-upon agenda—with zero recourse available to the public.
"It happens, and it happens in two ways," Heldmeyer says, recalling her time in executive sessions. "One is kind of non-consequential: People might start making jokes over an issue. But it sometimes veers into other substantive issues."
For her part, Heldmeyer believes the council relies excessively on executive sessions.
"Anything that's discussed in the executive session can be discussed in public," she says. "The question becomes, 'OK, what do we think is appropriate?'"
Some jurisdictions have made steps toward limiting the amount of time public officials spend in executive session.
In 2011, for instance, the city of Rapid City, SD, approved an executive session in 64 percent of its 14 meetings—the second-most frequent rate in the state, according to a December 2011 article by the Rapid City Journal.
Since then, Rapid City has made active attempts to shorten the length of time in which the city council meets in executive session and to make the motions calling for executive sessions more descriptive.
"We try to do more of the public's business in the public," Rapid City Mayor Sam Kooiker told the Journal at the time. "There are times when the public's business cannot be done in public, but it's still the public's business, and they have the right to know as much as they can."
In 2010, Bushee and Chavez introduced a resolution that references the League of Women Voters' Position on Transparency in Local Government as a guide for establishing comprehensive transparency policies and practices for the City of Santa Fe. Then, in 2011, Wurzburger sponsored a resolution reducing the required number of legal briefings the council must receive from 12 per year to four, allowing any updates in between reports to be emailed to council members—a measure she says could help reduce the frequency of executive sessions.
Wurzburger explains that, during the period analyzed by SFR, the council has dealt with "several complex issues that required executive sessions, including the Railyard, College of Santa Fe purchase and union negotiations."
Still, she says that the number of executive sessions should decrease dramatically "by the completion of those negotiations and my amendment to limit the number of legally required executive sessions." She adds that she is proud of the positions taken by the governing body over the past few years to improve transparency. Zamora tells SFR that, while he feels that Bushee's request for litigation reports is a positive measure, requiring only quarterly reports is the correct move for the future.
But reducing the number of executive sessions only solves half the problem. The fact remains that whatever is said or agreed upon—however informally—in an executive session will never reach the public eye. This leaves councilors free of accountability—but, more importantly, it excludes the public from one of its fundamental freedoms: the ability to be informed.
$5 Million View
Dealmaking in the Railyard
Over the two years during which formal negotiations were underway to move city offices to the Railyard, communications from city officials portray a city eager to make the purchase.
Emails obtained by SFR through public records requests show a city already making deals, even for aspects that have not yet publicly decided on like which city departments get to move to the Railyard. Emails from Feb. 17, two months before the city closed its purchase, show interim City Facilities Division Director James “Chip” Lilienthal eventually promising Land Use Director Isaac “Ike” Pino a “grand suite” with a reception room seating 12 people and a large window and balcony overlooking the Railyard.
“I have asked Robert to help because I have no stroke with those guys (maybe Phil Griego if we have to [go] that route),” an earlier email from Pino to Lilienthal reads.
State Sen. Phil Griego, who in early June won a heated primary election battle against Jack Sullivan, recently has been criticized for spending public campaign money on unrelated, luxurious items benefiting himself and his corporate donors.
Other emails show city officials hoping to close the purchase (“Let’s cross our fingers,” reads one from Assistant City Attorney Judith Amer as she emails settlement details to Santa Fe Railyard Community Corporation Executive Director Richard Czoski). Former City Councilor Miguel Chavez says the emails are an example of improper private dealmaking with public dollars.
“Which department does it make more sense to move and why?” he asks. “We’re not having that discussion, not in an open way.”
The Higher the Stakes, the Greater the Secrecy
by Joey Peters
The bigger the purchase, the more likely it is to be discussed behind closed doors. Recent annexations and the city’s purchase of the College of Santa Fe—now the Santa Fe University of Art and Design—exemplify this trend. In March, the city released an analysis showing that the cost of annexing county land far exceeds the potential revenue; critics were incensed that city officials had kept the report from the public until after the March 6 city election. More recently, in April, the Santa Fe City Council approved the purchase of 22,000 square feet of office space in the Railyard’s Market Station building—a purchase that will cost taxpayers at least $5 million over the next decade—without public input.
Doland, the executive director of the New Mexico Foundation for Open Government, says that, while the state’s Open Meetings Act allows for cities to negotiate real estate purchases in private, “The big picture here is that decisions about how and when and why the city is going to spend a bunch of money should be public conversations.”
"It would make me less queasy if there had been public [input] on this issue," she tells SFR. "But the pattern of secrecy here is alarming."
Of the 50 executive sessions the Santa Fe City Council has held since 2009, at least 12 of them involved discussions that eventually led to the Market Station purchase. The purchase, from local developer Railyard Co., LLC, came a year after the City Council agreed to lease the space for city government offices that would be relocated from the federal US Postal Service building to Market Station.
To critics, the deal amounted to nothing more than the city bailing out a failing—but influential—private business. Railyard Co.'s three principals, Steve Duran, Allen Branch and Rick Jaramillo, have been visible in the Santa Fe business scene for years. But many city officials contend that the purchase was necessary to ensure the struggling Railyard's success and get the city out of a legal mess in the process.
Santa Fe Mayor David Coss, who recently lost his bid for a seat in the state Legislature, says that if the city hadn't acted to buy it, Market Station could have gone into foreclosure, which would have had repercussions for REI, Flying Star and the other businesses housed inside and around the building. Jaramillo agrees that this was a possibility; Sanbusco Market Center, located a few yards north from Market Station, announced it was seeking foreclosure in late May [news, June 13: "Economic Redevelopment 101"].
"The scenario could have been nothing there for a long, long time," Coss tells SFR. "I don't see that being in the best interest of Santa Fe."
The purchase, which also gets city government offices out of the $500,000-per-year federal building, addressed an issue that Coss and several others maintain is in everyone's interest: preventing the Railyard's failure.
"The success of that property means a new social center for Santa Fe—theaters, restaurants, local businesses, parks," Zamora tells SFR. "The citizens have a vested interest in the Railyard."
Indeed, the Railyard has been one of Santa Fe's most important—and most expensive—projects ever since the city purchased 50 acres of land for roughly $20 million in 1995. In the late '90s, approximately 3,000 residents helped draft the Railyard's master plan in exhaustive public meetings. Groundbreaking didn't occur until 2004, shortly after Railyard Co. won the Market Station bid. Infrastructure wasn't complete until 2008, just as the recession was looming.
By early 2010, it was clear to the city that Market Station—and the Railyard as a whole—wasn't panning out as well economically as was once hoped. Building space remained vacant and, later that year, the area's ArtYard lofts went into foreclosure.
Zamora and City Manager Robert Romero, both new to their jobs at the time, started having weekly status meetings to monitor the area's progress. For one of the city's largest investments—right up there with the Santa Fe University of Art and Design and the Buckman Direct Diversion—failure was not an option.
But many criticize the city for the way it handled such a large purchase involving public money: behind closed doors. For that reason alone, Bushee and then-City Councilor Miguel Chavez refused to attend some of the executive sessions.
"It was all wrapped around their business plan, not our business plan," Chavez, referring to Railyard Co., tells SFR.
Both Chavez and Bushee either voted against or abstained from three of the total 12 executive sessions involving discussions about Railyard Co. property. (From the minutes, it's not possible to tell whether or not they actually participated in the sessions.) But in the closed sessions she did attend, Bushee played a role in the negotiations, particularly over a parcel slated for a movie theater that was never built.
"I felt [Railyard Co.] didn't have the financial wherewithal to handle that," she says. "It shouldn't be empty."
In the end, the city did get the cinema parcel back as part of the negotiations. Santa Fe Railyard Community Corporation Executive Director Richard Czoski says three developers are interested in building on the land and that a cinema could be a reality in two years.
But Bushee, despite her advocacy for the cinema parcel, abstained from the final vote after Duran accused her of owing him money for plumbing work done in 2005. (A city-funded investigation into Duran's allegations lasted only a week and found nothing.)
Bushee criticizes the city's reason for keeping discussions private: threatened litigation from Railyard Co. At the time, Railyard Co. alleged that the city of Santa Fe was responsible for the company's $13 million in losses that the company sustained after the delayed construction of an underground parking garage. Part of the city's negotiated purchase of Market Station forced Railyard Co. to withdraw the accusation. An actual lawsuit, however, was never formally filed.
"We were forced into this transaction because someone threatened a lawsuit," Chavez says. "It speaks to how we handle public assets and how we arrive at decisions to spend taxpayer dollars."
Chavez adds that discussions involving taxpayer dollars should always be open. While an exemption in the Open Meetings Act allows local governments to privately discuss pending and threatening litigation, it's an option, not a requirement, and some question the validity of always using threatened litigation as an excuse.
"It's perfectly understandable that a public body would want to consult a lawyer in private, but when that becomes a regular occurrence, it raises eyebrows," Doland says.
Heldmeyer, a frequent critic of the way city government handles business, also bemoans the thin line between using closed sessions for threatened lawsuits rather than actual ones.
"It's something the city attorney needs to be very careful [about]," she tells SFR.
Bushee questions how serious the company was about actually filing a lawsuit.
"If they were going to sue us, then they should've sued us," she tells SFR.
Jaramillo, however, says the lawsuit was "as serious as the sun shines every day."
"We had an agreement with the city that they would remedy any or all claims related to the title," Jaramillo tells SFR.
The city didn't live up to the agreement. But rather than go ahead with a court battle, Jaramillo says the agreement with the city allowed Railyard Co. to go into direct negotiations.
He adds that because the land used to be an old rail yard, some of its property rights predated the state of New Mexico. An inability to obtain title insurance, coupled with lenders' unwillingness to invest during a recession, stalled development.
"Our parcel was the worst out of all the Railyard," Jaramillo says.
Indeed, another lawsuit would've added to the growing list of the legal trouble Railyard Co. has had in its relatively short eight-year history. Since 2008, the company has been named a defendant in eight different lawsuits. Things also got personal between the company's principals last year when Jaramillo and Duran sued Branch for allegedly failing to invest his personal money into the company.
Jaramillo says the Railyard's complicated title rights led to all the legal trouble, which he maintains is now settled.
As for the number of closed city meetings related to the company, Zamora says they were necessary because of the high priority of the Railyard and the complicated legal issues surrounding the city and Railyard Co. The City Council wanted to be fully briefed on the status of legal claims against the city as well as protecting the Railyard's financial investment, he adds.
"You don't want to put the city at risk on their legal claims or overpay on the acquisition of property," Zamora says.
Coss echoes that point.
"If your attorney is sitting there telling strategies in public, you can bet the opposing side is taking notes and getting ready," Coss tells SFR.
In the end, City Council held the final discussion publicly before it unanimously approved the purchase on April 25 (Bushee recused herself from the vote). But Chavez laments what he considers the city's misplaced priorities.
"We now have two more buildings on the Railyard that we didn't have before," Chavez says, referring to the city's takeover of the old depot building in 2011. "We're going to be responsible for the maintenance."
But Coss says not holding a public hearing on the purchase is consistent with city government precedent. He adds that he's never contemplated the alternative.
“There’s never a public hearing on a legal settlement or a purchase,” he says. SFR
WHAT CAN YOU DO?
•Attend City Council meetings (held every other Wednesday evening at City Hall, 200 Lincoln Ave.)
•Contact your city councilor and ask him/her not to enter into executive session (contact information available at santafenm.gov)
•Contact the New Mexico Foundation for Open Government (nmfog.org)