An undergraduate student-government committee violated the New Mexico Open Meetings Act (OMA) during a meeting last week, according to open meeting experts.
The Associated Students of the University of New Mexico Steering & Rules Committee held a meeting on March 20 and unanimously voted down a series of bills that would have dramatically changed the structure of the institution.
At Attorney General Emily Hartshorn's suggestion the committee adjourned to discuss the idea of changing ASUNM's makeup further.
“We can go ahead vote on all of them and close, and then talk about it,” Hartshorn said.
This discussion involved a quorum of the six-member committee. This included Chair Mohammad Assed, Madelyn Lucas, Xavier Torres and Daniel Stearns.
How and when new legislation could be created was discussed as well. Vice President Emily Wilks, who was at the meeting, eventually ended the meeting out of precaution that OMA might have been violated.
OMA requires policy-making bodies (including ASUNM) to provide meeting notices, agendas and minutes, among other measures to ensure transparency, for meetings in quorum — none of which were provided for the conversation after the adjournment.
OMA states that all discussions by a policy-making body are subject to the act, which includes the creation of meeting notices, agendas and minutes, none of which were provided for the secondary conversation.
However, during the second meeting Hartshorn said the conversation was not subject to OMA because it was not on any prior agenda.
Daniel Yohalem, a Santa Fe attorney and executive member of the New Mexico Foundation for Open Government (NMFOG), told the Daily Lobo this is an incorrect reading of OMA.
“Anytime there’s a meeting of a public body to discuss public business, that is required by OMA," Yohalem said, adding that the conversation after the meeting had adjourned was illegal.
NMFOG is a non-profit organization that advocates for transparent governments and First Amendment rights. Their executive director, Melanie Majors, said ASUNM’s reasons for not making the meeting OMA-compliant “ridiculous.”
The Daily Lobo also talked to John Kreienkamp, an attorney at the New Mexico Attorney General’s Office (NMAG), and Patricia Salazar, records custodian for NMAG. Both said it is a violation of OMA for public bodies to hold such meetings.
“(ASUNM) would be required to make all their policies and have all their discussions in an open meeting, unless they enter into a proper closed session,” Kreienkamp said.
As defined by OMA, closed meetings must be identified in agendas with specific reasoning as to why the meeting is closed.
Some senators raised concerns about OMA during the second meeting. Assed and Lucas asked Hartshorn if the meeting was in compliance. Hartshorn assured them it was.
Wilks defended the decision to end the original meeting and continue the conversation. She said the nature of the conversation itself — discussing how similar legislation could look in the future — was not subject to OMA.
“My interpretation of OMA is that when there is a definitive decision being made or an intent to make a decision that affects a large body of people, then it needs to be disclosed,” Wilks said. “It’s so much in the very beginning stages of what this legislation eventually will be, that I don’t think it’s necessary to have that open meeting.”
NMAG has their own OMA Compliance Guide, in which it says “minutes must contain a description of the subject of all discussions had by the body, even if no action is taken or considered.”
The compliance guide also states that statutory committees, which include all three ASUNM committees, are always subject to OMA, unless properly closed.
ASUNM issued a written statement on Wednesday that read, “The Senate Steering and Rules committee meeting on March 20 may have been in violation of portions of the New Mexico Open Meetings Act.” The statement was issued after a discussion between Hartshorn and Katherine Miefert, the University attorney who works with ASUNM.
At the end of the secondary meeting, Hartshorn told the Daily Lobo she had hosted multiple impromptu discussions similar to the one on March 20 during her time as S&R chair.
“One time we closed the meeting to discuss a rewrite of (Outreach & Appointments Committee),” she said.
All executive officers in ASUNM, including the Attorney General, take an oath of office that includes promising to uphold New Mexico State Law. Hartshorn said on Wednesday she will serve the rest of her term.
Note: An earlier version of this article said Melanie Majors is the president of NMFOG. She is actually the executive director.
Justin Garcia is a staff writer for the Daily Lobo. He can be contacted by email at firstname.lastname@example.org or on Twitter @Just516garc.
Kyle Land is the editor-in-chief for the Daily Lobo. He can be contacted by email at email@example.com or on Twitter @kyleoftheland.