Mining for a Vote

Activists left the meeting disappointed, however, after the five county commissioners talked about the deal behind closed doors and then postponed a vote on whether to allow an Albuquerque company, Rockology LLC, to mine for basalt on the private land owned by Buena Vista Estates Inc.

The commission's decision to discuss the application during an executive session makes mine opponent Marianna Hatten—and plenty of others who were expecting a vote—wonder: "What are they discussing out of view of the public?"

Hatten runs the nearby High Feather Ranch. What she calls the "oil and gas wars" and issues concerning her business have brought her to previous County Commission meetings. She found the commission's decision to call an executive session odd, so she contacted the New Mexico Foundation for Open Government, a nonprofit that advocates for transparency in public business. "Is this really open and transparent? I have personally my doubts that it's all open," she says. "It's certainly not transparent because I don't know what goes on in these other meetings."

County resident Diane Senior calls the closed-door discussion "outrageous" and says it disrespects residents who have made sacrifices to participate in public hearings.

"They have chosen to cut off visibility into their decision-making process by deliberating in private," she writes SFR. "That is simply no way to run a democratic government."

Public bodies occasionally hold the secret meetings to discuss sensitive matters, such pending litigation or real estate deals. But a 2012 SFR investigation found that bodies like the Santa Fe City Council often abused that authority, using spurious justifications to hold executive sessions. In this case, the County Commission justified the executive session by claiming the application by Buena Vista Estates and Rockology to create the mining zone constitutes an "administrative adjudicatory proceeding."

Such proceedings are exempt from provisions of the Open Meetings Act, which defines such a decision as "a proceeding brought by or against a person before a public body in which individual legal rights, duties or privileges are required by law to be determined by the public body after an opportunity for a trial-type hearing."

In other words, a public body might be wearing a "judicial hat" that allows it to treat the proceeding more like a trial where testimony is heard from sworn witnesses, explains Susan Boe, executive director of the New Mexico Foundation for Open Government.

She points to state court cases that allow the practice, but notes that commissioners need to give their final vote on the matter at a public hearing. "I hope that there's a public notice" of the vote, she adds. County spokeswoman Kristine Mihelcic says county staff and attorneys are drawing up an order on the matter, on which county commissioners will take final action during a future meeting. The date of the vote is undetermined. The Aug. 12 hearing represented the second time this summer that commissioners heard extensive public comments on the matter, and Mihelcic says in no uncertain terms: There will be no more public hearings on the application.

"They just closed the public hearing…and are just taking time to evaluate what's being presented to them," she says of the commissioners. "It's not completely out of the norm."

Commissioner Miguel Chavez, a longtime public servant whose past is replete with instances of protesting executive sessions, even voted to enter the closed meeting. In this case, he says, county commissioners were under advice from the county attorney to not take immediate action and to research the legal parameters of the case.

"Something like this is going to generate a lot of public interest and concern," he says. "It's part of it and, like it or not, what's legal is not always right."

Santa Fe Reporter