Covert Conversations

Like most public bodies across the state, the Santa Fe Board of County Commissioners’ meeting agenda regularly include executive sessions when members can talk privately. But the panel’s common practice of calling closed sessions on the fly has prompted residents and a state transparency advocacy group to question its legality.

The New Mexico Open Meetings Act generally requires the public’s business take place in plain sight. The law prescribes when public bodies must publish notice and agendas, for example. It also establishes specific reasons for closed-door meetings.

One instance of such a closed meeting took place May 1, when commissioners were wrestling with the contentious decision of whether county residents had the right to halt a city annexation of county land. At least two people testified they would sue the county over the outcome. Commissioners, citing the OMA exception to discuss “pending or threatened litigation,” retreated to meet in private.

More recently, during a July 11 hearing on whether a San Marcos resident could start a small commercial cannabis farm, commissioners paused a discussion to again go behind closed doors, citing an exemption that allows for private deliberation as part of a quasi judicial proceeding.

SFR filed a formal complaint May 10 with the New Mexico Attorney General’s office regarding the May 1 meeting, which questioned whether the meeting’s agenda appropriately reflected the closed session and argued the commission’s long, secret deliberation seems likely to have included matters outside the scope of what’s allowed under the state law.

The AG’s office wrote in a May 17 letter that it had assigned the matter to an attorney. While SFR has yet to receive a formal response, Assistant Attorney General Joseph Dworak, who oversees the Civil Affairs Division, says in an interview that it’s legal for public bodies to discuss issues away from public scrutiny as long as they cite a specific Open Meetings Act exception and specify which agenda items they plan to discuss. But he says bodies don’t have to notify the public ahead of time.

“There is not an explicit requirement in the Open Meetings Act that says a public body must put on their agenda a closed session or executive session or anything like that,” Dworak tells SFR.

New Mexico Foundation for Open Government Executive Director Melanie Majors, who tells SFR she’s received “several” recent complaints about the county commission and who also wrote a letter to the AG about the May 1 meeting, disagrees. She says public bodies have to first notify the public in advance of any closed-door meetings.

“They can’t just go into a closed meeting and do things just willy nilly,” she says. “All the items that they discuss have to be on an agenda.”

Dworak concedes even though last-minute closed sessions are legal, the spirit of the law is to make things as transparent as possible.

“It is certainly best practice if the public body anticipates going into closed session, to list it, because I think it reduces anxiety with the public, because if they do that some of the public thinks they’re hiding the ball,” he says.

That’s exactly what Doug Speer thinks. Speer led a coalition of San Marcos residents who asked the commission to revoke a conditional use permit for the cannabis grow, testifying during the July 11 meeting that one of the neighbors’ concerns was potential damage to a shared private dirt road.

It became clear during the following public deliberations that the commissioners did not agree with one another. After some heated exchanges, commissioners voted 3-2 to continue the debate in private. When they came back from their closed session, the commission unanimously voted to postpone a decision and task the residents of San Marcos with completing a road maintenance agreement.

Speer tells SFR he thinks the real reason commissioners took their deliberations behind closed doors was to whip votes.

“It was simply to get out of our view, so that they could leverage a conversation and hope to change minds so that they could get that compromise that they came back with,” Speer says. “It’s just a neat way of them not having to make any commitments.”

Commissioner Hank Hughes, who voted against the closed meeting along with Commissioner Camille Bustamante, says he won’t disclose specifics of the discussion, but notes he still doesn’t agree that it needed to be secret.

“In that particular instance,” Hughes says. “There wasn’t a lot to be gained by discussing it behind closed doors.”