Heath Haussamen
As Doña Ana County continues to struggle with requirements for providing public access to its dealings, it’s fair to ask if county officials even understand how to comply with the state’s transparency laws.
The county posted a public agenda late Saturday for a meeting commissioners planned to hold at 8:30 a.m. Tuesday. They planned to approve a resolution “recognizing partial fulfillment of the community benefit commitment between Project Jupiter and Doña Ana County,” the agenda stated.
The developers of the massive campus of data centers in Santa Teresa are donating $1.5 million to the Boys & Girls Club of Las Cruces for its new facility. That’s what the county wanted to promote.
But even when attempting to hold a celebration, the county couldn’t follow the law.
72 hours
The state’s Open Meetings Act requires government agencies to release agendas for special meetings like this planned event at least 72 hours beforehand. The intent is to give you time to learn what’s happening so you can participate, if you want.
The county posted the agenda for the meeting on its website at 9:31 p.m. on Saturday — about 59 hours before the scheduled meeting. It sent the agenda by email to those who are signed up to receive such notices, including me, at 9:52 p.m.
“The 72-hour requirement applies regardless of whether it includes a Saturday, Sunday or holiday,” the Department of Justice’s Open Meetings Act compliance guide states.
I wasn’t the only one who noticed that the county was out of compliance. Derrick Pacheco, who has filed one of two pending lawsuits challenging the validity of tax incentives the county provided Project Jupiter, emailed county officials, journalists and others. “This is the largest project in the state history but is continuing to violate law into the new year,” he wrote in a Monday morning email.
By Monday afternoon, the county had canceled the meeting “due to the late posting of the agenda,” according to a note posted on the county’s website.
“The check presentation will still occur, but no action will be taken by the Board of County Commissioners at that time,” the note states, adding that commissioners will instead vote on the resolution at their scheduled meeting on Jan. 13.
Still falling short
In the end, the county hosted and webcast a press conference for Project Jupiter’s developers, Stack Infrastructure and BorderPlex Digital Assets. It lasted only a few minutes. I counted three commissioners at the meeting when I watched the webcast, Gloria Gameros, Manuel Sanchez and Christopher Schaljo-Hernandez.
But even in taking the appropriate step to avoid breaking the law, the county fell short of the best practice.
Any time a quorum of commissioners — in this case, three or more — discuss public business, that’s a public meeting that is subject to the requirements of the Open Meetings Act. So any time a quorum of commissioners may be present at an event like a Project Jupiter news conference, the county should post what’s commonly called a potential quorum notice.
New Mexico State University is diligent about posting such notices and letting the public know any time a quorum of members of its governing body may appear in the same place, even at sporting events and homecoming activities where they’re celebrating and less likely to discuss public business.
A pattern
While public access to a meeting about a donation for the Boys & Girls Club might seem insignificant, the difficulties complying with the law in this instance add to a pattern that has created barriers to the public’s understanding of Project Jupiter and commissioners’ actions, including the approval of gargantuan tax breaks.
Commissioners violated the Open Meetings Act on Sept. 19 when they kicked the public out of their meeting without properly explaining the reason. They later took steps to try to correct that violation.
I and others contend that they violated the Open Meetings Act a second time that day, and again in the following weeks, by approving drafts of agreements with the developers of Project Jupiter and giving one commissioner the authority to finalize those documents in private.
In addition, the county has been consistently slow to respond to requests for documents related to Project Jupiter ever since the public learned of the project in August. While the state’s Inspection of Public Records Act lays out the requirements for public access to government records, the county has often pushed the edges of what the law allows, sometimes taking weeks or months to respond to requests for only a few documents.
By contrast, I’ve filed several requests with the City of Las Cruces in recent weeks, including one that required staff to perform a search of various officials’ communications. All of those requests were fulfilled within days.
‘They could have done better’
While it might appear that flawed systems or incompetence are to blame for the county’s problems, not all will believe it isn’t intentional. It doesn’t help that the county manager signed a non-disclosure agreement with the developers of Project Jupiter that required the county to “take every possible step to ensure all Confidential Information is kept confidential.”
While that NDA also states that the county “must” comply with state transparency laws “to the fullest extent,” the county has at times not done that.
The N.M. Foundation for Open Government is watching the county closely, and last week sent its second recent notice of alleged violations of the Open Meetings Act. The newest involves the county’s Planning and Zoning Commission.
In the case of the Boys & Girls Club donation, canceling the meeting was “the right thing to do because they would have been in violation,” said Christine Barber, FOG’s executive director.
But the county should have posted a potential quorum notice for the event that replaced the official meeting, she said. That would help commissioners avoid even the appearance that they’re excluding the public. That is essential to keeping “their promise to the public.”
“They did the right thing,” Barber said. “They could have done better.”
What now?
Perhaps county officials need to schedule a training on compliance with New Mexico’s transparency laws. The state Department of Justice hosts trainings regularly, and upon request, at no cost.
At the very least, officials could watch the recording of a training the DOJ held in Las Cruces last month. They might also want to read the OMA and IPRA compliance guides.
Disclosure: My spouse, state Rep. Sarah Silva, is asupporter of Project Jupiter.
Just wanted to add, the work session that followed was also insufficiently posted, however the agenda was not amended like the special meeting and continued as normal even with given notice and an OMA already filed.
They talked about Project Jupiter a bunch more as an OMA resolution and then the film industry, which is ironic because at that time assistant manager and former NMSU Police Chief Stephen Lopez committed assault and battery against me, a media professional and concerned citizen for of all things – filming the unlawful meeting.
You can check LCPD for the multiple assault claims I filed at the 845 Motel BLVD identifying location. I also requested the state to provide me with security detail as this is now a pattern – which is also ironic as while I was sending that, an innocent law observer was shot and killed by ICE.
See Blue Owl Securities Fraud lawsuits for more Jupiter drama…
To support my lawsuit and government transparency documentation work, I have a fundraiser link posted below. I sure could use more coffee and maybe a couple dinners out. This has taken thousands of hours on my part just like our amazing journalists covering these stories.
Shame on our elected officials and appointed management for getting us all into this mess.
The County Attorney is part of the problem.
Notice how Carri was absent during the unlawful meetings this week? I put her on notice as did commissioner Chaparro. She’s not stupid, but absolutely part of the many problems at the county. Thanks to all the residents who have reached out to me because of these articles. We are stronger together!
Just to be clear, the meetings were likely not unlawful. The commission didn’t take any action at the work session, which was properly noticed by the county, and it cancelled the special meeting. Best practice would have been to reschedule or cancel the work session because the agenda wasn’t posted 72 hours before, but the county did follow the law for providing notice of the work session, and no action was planned or taken there.
Discussion can happen at a properly noticed meeting on items not on the agenda as long as no action is taken. I may not like that, but it’s how the law exists currently.
The work session agenda was also posted out of compliance. Was also due that morning which was included in my OMA complaint. Even if no action was taken, it seems like there is still a legal deficiency, no?
Also, what is it called exactly when you notify the public that the check ceremony would be canceled, but then you have the check ceremony anyways, but instead of a meeting you call it something different. Tomfoolery?
The OMA is a little cloudy on the point of meetings where no action is taken, but ultimately the DOJ’s compliance guide states this: “A public body may discuss a matter, but cannot take action, unless the matter is listed as a specific item of business on the agenda. Action on items that are not listed on the agenda for a meeting must be taken at a subsequent special or regular meeting.”
So at any properly noticed meeting (which the work session was) commissioners can discuss something that was not on the agenda. They can’t vote on it until a later meeting where it is included on an agenda released in the time required by law.
As for the second, there’s a difference between a formal meeting where a formal vote will be taken and what this ended up being, which was essentially a news conference. They didn’t hold the formal meeting or take any vote, so they didn’t violate OMA. But a quorum of commissioners still showed up, which is why I reported that the best practice would have been to post a potential quorum notice.
And me sharing all of this shouldn’t be interpreted in any way as me defending the county. I’ve been pretty clear in my writing that their consistent noncompliance with the OMA is not acceptable.
What time was the work session agenda supposed to be posted on Saturday in order to be in compliance?
As I said, this is a bit of a gray area. I’ve shared here what the DOJ recommends. It’ll be interesting to see how they respond to your complaint.