AG: Mountainair violated Open Meetings Act

A letter from Attorney General Hector Balderas to the town of Mountainair last week concluded that the town violated the Open Meetings Act on several occasions from 2014 to this year.

The letter was in response to complaints made by Dan Embree, who was forcibly removed from a town council meeting last year after calling into question the way the council was entering into executive session. Embree and others had been making such complaints prior to him being ejected from that meeting.

The AG’s 6-page letter, dated Aug. 4, refers to Embree’s complaints to that office, and to news coverage of the events in The Independent.

“As part of our review, we considered materials attached to the complaint, the materials and responses provided by the Town in response to the complaint and our requests for supplemental information, and news coverage of Mr. Embree’s ongoing complaints about the Town Council’s practices when closing public meetings,” the letter says.

That included agendas and minutes of town council meetings in 2014 and 2015, and “identifies several other instances in which the Town violated the Act when it entered into executive session,” the letter says.

The state’s Open Meetings Act, and its companion, the Inspection of Public Records Act, are based in the idea that public bodies such as a town council government must conduct public business in the public eye.

The Open Meetings Act provides for “executive session,” in which such a body can deliberate in private, but sets forth specific criteria that must be met in order for it to do so. Those reasons for executive session include personnel issues and threatened or pending litigation.

Even that is further restricted, according to the AG’s letter, which says that such threatened or pending litigation must be “credible” and the town must be engaging in privileged conversations about that litigation with its attorney.

Further, the Open Meetings Act requires that a roll call vote be taken to enter executive session, and that a statement must be made after the body returns to open session affirming that only the item to be discussed in closed session was addressed. The AG’s letter says Mountainair did neither of those things.

Instead, the AG’s investigation concluded that Embree’s contention that the town was using “boilerplate” language was true, with the item appearing in identical form on each meeting agenda.

The AG’s letter also takes the town to task for language in its Open Meetings Resolution saying that agendas are available to the public 24 hours before a meeting; since 2013, the Act requires 72 hours advance notice, and for that agenda to be posted on the public body’s website if it maintains one.

Mountainair has a website, the letter says, but does not post its agendas there.

One of Embree’s complaints to the Attorney General was about a meeting July 14, 2014, when the council went into executive session to discuss a problem with a member of its planning and zoning commission.

The council then voted to dissolve the commission then reconstitute it after reviewing applications. In its response to the AG, Mountainair noted that the person in question was an unpaid volunteer, the letter says.

The AG’s letter goes on to say that only public employees, not volunteers, can be used in citing “limited personnel matters” and going into closed session. “Unpaid volunteer members of the Planning and Zoning Board are not employees of the Town, and it was therefore improper for the Town Council to discuss their selection, performance, or removal in closed session under the limited personnel matters exception,” the letter says.

In explaining the office’s conclusion that Mountainair has a pattern of non-compliance with the Open Meetings Act, the letter says, “We are concerned about the troubling pattern of violations of the Act strongly suggested by the evidence available to us and set forth above,” adding, “We note with particular concern that when Mr. Embree attempted to point out the Town Council’s failure to comply with the requirements of the Act for entering into executive session at its August 18, 2015 meeting, he was forcibly ejected from the meeting room. Also troubling are statements to a local newspaper by [town clerk] Ms. [Suzan] Brazil that suggest the Town feels secure in its conduct because it has conducted business this way for the last thirty years.”

The Attorney General’s office hosted a town hall meeting in Estancia in October, 2015, which was attended by a large crowd, with a sizable number there from Mountainair. The letter cites that meeting and says the AG’s office is available to train Mountainair in the Open Meetings Act.

“We advise the Town to take immediate steps to correct the violations noted above, particularly those at the July 15, 2014 meeting. In addition, the Town must henceforth comply with the requirements of the Act in closing public meetings.”

The AG’s letter concludes, “This office will be observing future practices of Town Council. If these violations continue, this Office can reasonably conclude that the violations are intentional. If the Town continues to violate the Act, this office will consider enforcement actions up to and including criminal prosecution of the responsible individuals, as authorized by the Act.”

Embree wrote in a Tuesday email that the letter is “exactly the kind of non-result that the mayor [Chester Riley] counted on.” Embree said it took the AG’s office two years to write the letter, calling it “weak.”

“And the case was not complicated. It wasn’t Brown vs. Board of Education,” Embree wrote. “Everything about this law is old, known, and long since tested in the courts.”

Embree said the letter is “weak” because while the Open Meetings Act provides that no action is valid unless it is taken at a meeting in compliance with the Act, “which means that a score of actions taken by the town are invalid,” the AG’s letter does not refer to this fact.

“There’s no attempt to compel the town to come to grips with the consequences of its blatant indifference to the law. If the town had to reverse even just a couple of its actions that would be a greater sanction than the hollow threat of eventual criminal prosecution.”

The Independent was unable to contact Riley for comment by press time.