Santa Fe Councilors Trip Over Secrets

Backroom talks over homeless shelter purchase offer come to light, sort of

Santa Fe city councilors finally had a public discussion Wednesday night about a private talk they held in November. Yet, it's still not clear for members of the public what is going on with fate of the publicly-owned emergency shelter for the homeless at 2801 Cerrillos Rd.

Just ten minutes prior to the City Council's evening session, Mayor Javier Gonzales introduced a measure to waive attorney-client privilege between the body and Kelley Brennan, the top city attorney.

Confusion ensued.

A frequent critic of City Council's use of executive sessions, District 1 Councilor Patti Bushee walked out of that November private meeting because she says she felt the nature of the secret talks violated the Open Meetings Act.

That state law gives public bodies like Santa Fe's council limited authority to discuss matters of public business in closed-door meetings referred to as executive sessions. Talks about pending purchase offers are one reason. And it turns out that's what councilors were debating that night, according to Brennan, who says the city received a purchase offer.

It's easy to see the varied incentives councilors have to discuss the issue privately. Growing NIMBY discontent is threatening the taxpayer financed facility that operates as an overnight shelter in the winter. Neighbors complain about livability issues. Shelter officials point to its shoestring budget.

An Albuquerque nonprofit that fights for government transparency even got involved in the ordeal. On Dec. 10, the New Mexico Foundation for Open Government sent the city a letter alleging those discussions violated the Open Meetings Act. Newspapers picked up the tale. Bushee expressed more outrage. So did shelter officials.

Sitting quietly next to the councilors, Brennan noted Wednesday that the proposed resolution waiving privilege is "very limited." Approval of the measure only means councilors would approve that Brennan release the document that justified holding the discussions in secret, she said. "The document that I'm referring to is already public," she added.

Bushee's hand flipped up with the speed of a classroom geek with an answer.

"Can we not discuss it now in public?" she asked Brennan.

Brennan responded she "would not recommend" to discuss in public what the council discussed in private.

Bushee and Mayor Gonzales went back and forth. She wanted to discuss what councilors talked about privately right then and there. He argued that the public needs to know it beforehand.

"It will allow me to say what the basis for going into executive session was," emphasized Brennan. "It was a general citation. New Mexico FOG asserted that it was their understanding that we didn't have any specific basis" for going into executive session.

Councilors Chris Rivera and Carmichael Dominguez had a different concern. They wanted to make sure that in voting for the resolution, they wouldn't be approving making public the contents of the their secret discussions—just the legal justification for holding the secret discussions.

"One word of caution is that if we are going to truly in the future protect taxpayer money and protect our rights with regard to attorney client privileges," said Dominguez, "we need to be careful not to necessarily set a precedent because there are going to be instances where although it's fruitful for the public to have knowledge, we need to be able to do the work that we need to be able to do in executive session as well to protect the public's interest."

"I would not want to get into waiving the substance of the discussion," assured Brennan. "I've had a number of councilors say to me that they were concerned because they felt they needed to speak frankly to the issues without feeling they were going to read about it in the newspaper the next day."

District 2 Councilor Joseph Meastas seemed more in line with Bushee.

"I was uncomfortable when the subject was raised in executive session," he said, although he noted he "still felt like it was justified."

"I really think that this could really cause a lot of problems," Maestas added of the secret discussions. "In fact I think we've resorted to do this in the spirit of transparency."

Councilor Bushee was first to vote on the measure.

"Yes," she said with a touch of sarcasm, voting in favor of the resolution.

"I've been here to see many a city attorney to I think misuse," the Open Meetings Act, Bushee said. "We need to rely on the advice from the city attorney's office first and foremost."

"Agreed," Gonzales quickly replied. "And also we need to accept our own responsibility that if we see something going on wrong with executive session that we use our voice and we put a motion to stop that and bring it out into the public domain."

The motion passed with votes from the mayor and all the councilors—with the exception of Bill Dimas, who did not attend the meeting.

Next up: Councilors will consider explaining to the public what they actually talked about in that November executive session.

District 2 Councilor Peter Ives summed up how tricky it can be to talk about secrets. That is, if you can make sense of what he meant:

"This motion is clearly to allow you to advise the public the basis for the assertion of executive privilege, attorney client privilege in that context," Ives said. "It is not an authorization for anybody on the governing body to discuss what was discussed in that meeting. And I'm happy to have that discussion. But I think it would be appropriate to perhaps at the next meeting to go into executive session to discuss whether or not there is an inclination or desire to waive privilege with regards to the particular discussion."

Meanwhile, the Albuquerque Journal reports the offer to buy the shelter came from the Skarsgard Firm P.C., an Albuquerque law firm, noting in its report that company president Josh Skarsgard emailed then-Land Use Department Director Matt O'Reilly with a query about purchasing the building for "about half of what the city paid" for it 2009.

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