Doña Ana County trips over transparency law again

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.