Here’s why the Open Meetings Act matters

You may recall me writing last month that Doña Ana County commissioners violated the state’s Open Meetings Act when they went into closed session to discuss Project Jupiter on Sept. 19.

On Tuesday, commissioners corrected that violation by disclosing information they withheld from the public at the September meeting and voting to remedy the situation.

Interim County Attorney Cari Neill, one of the folks charged with ensuring commissioners comply with the Open Meetings Act, did a good job of explaining what commissioners could have done better and guiding them through corrective action.

I want to thank her and commissioners for doing the right thing, and tell you why it matters.

The violation

First, some backstory: An hour into the contentious September discussion of Project Jupiter, Christopher Schaljo-Hernandez, the Commission’s chairman, proposed moving the meeting behind closed doors to secretly discuss some unspecified thing related to the approval of tax incentives. Only Commissioner Susana Chaparro objected.

Commissioners are allowed to meet in private to discuss certain things like real estate transactions, personnel matters, and lawsuits or threats of litigation. But to avoid abuse they’re required by the Open Meetings Act to publicly share the reason, and do it with “reasonable specificity.”

Other local government boards in Las Cruces are very specific, as is advised by the attorney general’s Open Meetings Act compliance guide.

Schaljo-Hernandez, by contrast, was vague at the September meeting. He read a generic list of reasons the commission might be going into closed session that were included on the agenda: a personnel matter, discussions of property and water rights transactions, and “to discuss information that is covered by attorney-client privilege pertaining to threatened or pending litigation” that wasn’t detailed.

When pressed by a member of the public as commissioners were moving to a private room, Neill said they would be discussing “attorney-client privileged matters.” Beyond that, she said, “We do not have to specify what kind of matter it is.”

Neill was wrong. State law does require that they provide more detail. They can’t go into closed session to chat with their attorney unless it’s to discuss a specific lawsuit or an actual threat of a lawsuit, and they have to tell us that’s what they’re doing.

The way things played out in September left us guessing about what commissioners were discussing behind closed doors.

The correction

Enter government watchdog Nick Maxwell of Hobbs, who has pushed back against vague notices of closed meetings in the past. He contacted Neill on Sept. 20, the day after the commissioners voted to approve the Project Jupiter tax incentives, alleging a violation of the Open Meetings Act. In the course of their email discussions, which Maxwell shared with me, he advised Neill on how the Commission could correct the violation.

Neill followed that advice.

At Tuesday’s meeting (starting at 2:52:16 in the official video archive), Neill didn’t admit to a violation, calling it “alleged.” But she did explain what commissioners and staff could have done better.

“We could have been more specific in the motion itself, and when the public began to shout and ask questions, more specific in the explanation of that motion,” she said.

The county’s lead attorney also disclosed what should have been shared at the meeting almost a month ago: “While the commission was in closed session, the discussion was properly limited to attorney-client advice related to threatened litigation (related to Project Jupiter). There was no discussion of the positions or thoughts on Project Jupiter, no decisions or discussions on how to vote, and no vote taken during closed session.”

That’s what we’re legally entitled to know. When commissioners voted 5-0 on Tuesday to affirm that statement, they gave us a bit of news in disclosing that someone had threatened litigation related to their votes on Project Jupiter.

They also bound themselves legally to the statement that they didn’t discuss anything related to Project Jupiter behind closed doors other than that legal threat. If they discussed anything else, they broke the law — and if we learn later that happened, we have the opportunity to hold them accountable.

The actions of Neill and commissioners on Tuesday were sufficient to correct the violation in the way the N.M. Department of Justice recommends and the courts accept. Thanks to Maxwell for pushing on this. Thanks to Neill and commissioners for doing the right thing.

I spoke with Schaljo-Hernandez this week, and he called Neill a “very proactive, forward-thinking county attorney.” He said the county doesn’t believe it violated the Open Meetings Act, but he was “happy” to clarify the record about the meeting.

If the county learns the way it handled the situation wasn’t compliant with state law, Schaljo-Hernandez said, “we’ll learn from this mistake and maybe change things going forward.”

Why it matters

Change would be good. The county needs to ensure it’s more specific with meeting notices and motions to go into closed session. It’s long used generic language that doesn’t tell us what’s actually happening.

The agenda for Tuesday’s meeting, where they corrected one violation, indicates there’s still work to do. It stated generically that the commission might go into closed session “regarding a limited personnel matter, the purchase, acquisition or disposal of real property and water rights, (and) to discuss information that is covered by attorney-client privilege pertaining to threatened or pending litigation…”

By contrast, here’s how the Las Cruces City Council announced a closed meeting that will be held on Monday:

“The purpose of the closed meeting is: 1. To discuss pending or threatened litigation as it pertains to the Walnut skate park… 2. To discuss bargaining strategy preliminary to collective bargaining negations between the policymaking body and a bargaining unit representing the employees of that policymaking body and collective bargaining sessions at which the policymaking body and the representatives of the collective bargaining unit are present… 3. To discuss the purchase, acquisition or disposal of real property or water rights by the public body… 4. To discuss pending or threatened litigation regarding Olyvia Dominguez v The City of Las Cruces, and Joe Hernandez, D-307-CV-2024-00746.”

That specificity lets us ask questions and, if possible, learn more. Who is threatening to sue over a skate park, and why?

Doña Ana County needs to be similarly specific.

It would be great to know who threatened to sue over Project Jupiter. Were the developers applying even more pressure on commissioners than we already knew to approve the gigantic tax incentives and green-light the proposal to build a massive campus of data centers in Santa Teresa? Did the threat come from someone who wanted to stop the project?

The county may not want to answer those questions, but without compliance with the Open Meetings Act, we would not have even known to ask them.

And without commissioners’ statement about what they discussed in closed session, we’d not be able to hold them accountable if we learn otherwise.

That is why the Open Meetings Act is so important.