Bernalillo County commission broke transparency law

State investigators determined Bernalillo County commissioners violated the open meetings law when they established a process for choosing a new county manager. This means the commission will have to meet again to re-do their deliberations in public. 

The New Mexico Department of Justice notified county officials in a letter Thursday that it found the commission violated New Mexico’s Open Meetings Act “by engaging in non-public deliberations” as it worked on the recruitment process. 

Specifically, the department found, commissioners established a so-called “rolling quorum” — meaning that at least three members communicated by email, phone or other means to discuss public business, without giving the public notice of their plans to do so. A quorum is the assembly of a majority of members of a government body. In this case, that means three of the five commissioners.

In this case, the allegation was that commissioners Barbara Baca, Eric Olivas & Adriann Barboa determined who would be on a search committee for the next county manager before the resolution was considered at the public meeting.

Under state law, any time a quorum of a public body is to meet, the public must receive notice of the meeting in advance.

“These actions … deprived the public of a meaningful opportunity to participate in or even witness the deliberations on a question of profound public importance,” said Billy Jimenez, director of the department’s government litigation division. 

Jimenez said the commission must take immediate corrective action to avoid a legal challenge over the matter.

The letter outlines two corrective actions available to the commission:

• Conducting a properly noticed public meeting, at which commissioners would summarize the discussions and comments made outside of a public meeting, then ratify their previous actions with a public and open vote.
• Treating the previous action as invalid and restarting the process through a properly noticed public meeting. This would require re-doing the consideration and adoption by a majority of the commission of a new resolution in a properly noticed open meeting, with all discussions, deliberations and votes on the new resolution occurring in the open.

Response to finding

Accusations of the violation emerged after Commission Chair Baca issued a press release detailing the plan that would be voted on, including the names of search committee members, which had been formed before the April 9 meeting at which it was adopted.

The New Mexico Foundation for Open Government filed the complaint with the state DOJ, “after receiving calls about the violation on our hotline,” said Melanie Majors, the organization’s executive director.

Majors said in a press release on Friday that she applauds the decision.

“This DOJ’s opinion points out not only did members of the commission break the
law, but their actions violated the goodwill of the citizens of the county,” Majors wrote.
“Sunshine laws exist to ensure lawmakers, city council and school board members,
county commissioners and other public bodies debate, deliberate and vote within
the public’s view. Compliance with the OMA is basic to good government.”

For her part Baca said in a news release that she acknowledges the receipt of the determination on the investigation.

“We appreciate that the Department of Justice thanks us for our cooperation during the investigation, and we will expeditiously implement the DOJ’s recommended curative actions,” Baca said.

The commission is due to vote on ratifying the action. If it does so, the county search will proceed as planned. 

Commissioners this week chose three top finalists:

Marcos Gonzales, the county’s executive development officer.

Cindy Chavez, a member of the Santa Clara County (California) Board of Supervisors.

Joseph Lessard, former city manager of Ashland, Oregon.

County Manager Julie Morgas Baca is retiring June 30. 

Jimenez wrote that the county is unlikely to be further sanctioned.

“While we reserve the right to enforce the provisions of the Open Meetings Act through the commencement of a civil action, we trust that our findings in this matter are sufficient to identify both the nature of the violation and, more importantly, the necessary corrective action that must be made,” he wrote.