Senator Bill Tallman, D-Bernalillo, on Jan. 27 got his Senate Bill 39 through the Senate Health and Public Affairs Committee. The bill, if signed into law would make private the names of applicants to major public positions in the state.
Tallman got a similar bill passed 27 to 14 on the Senate floor in the 2019 session but did not get it through the House.
Currently all applicants to all public positions are open to public review. He told committee members New Mexico is one of five states in the country that has “such an archaic rule.”
His argument for the bill is that individuals doing the same job elsewhere are inclined not to apply if their name could become public.
As impirical evidence he cited the recent search for a police chief in Albuquerque.
“The mayor said 25 of 35 chief candidates were qualified,” Tallman said. “I disagree, sure they had some experience but were they the high quality candidate the city needs?”
Tallman also cited Albuquerque Public Schools’ superintendent search two years ago not drawing a superintendent doing the job in a similar or large school district.
Albuquerque is the 34th largest school district in the country with 92,000 students.
“Do we want to be the last state to enact a widely accepted position?” he said.
New Mexico School Boards Association Executive Director Joe Guillen also supported Tallman’s bill.
“In these challenging times (school) boards have struggled to get the highest quality candidate because of the law we’re trying to change,” Guillen said. “Many superintendents want to move up but are afraid that their board would find out they’ve applied somewhere.
Guillen offered no evidence of his claims.
Nick Estes is former council to University of New Mexico and has been Tallman’s expert witness for similar bills for many years.
“I’ve had run-ins with those who want to know all the names of all the candidates,” Estes said. “We’re not suggesting that it is impossible to find a candidate. You just can’t attract people already doing the job.”
The bill would make public the three finalists for any leadership position, such as city manager, county manager or superintendent.
New Mexico Foundation for Open Government Executive Director Melanie Majors opposed the bill.
“(This bill) makes the hiring process for most important positions secretive,” she said “The sponsor has offered no evidence that closing the hiring process would result in better applicants.”
She cited the Breckner Center’s research on the very question. The Center is part of University of Florida.
The study found out of 230 hires analyzed nationally, 165 of them were conducted behind closed doors and 65 were open.
“Closed searches resulted in external hires 62.4 percent of the time (103/165) while open searches resulted in external hires 73.8 percent of the time (48/65),” the study states. “In other words, in-house candidates were somewhat more likely to benefit from a search conducted without a public competition.
She also cited the New Mexico Court of Appeals finding in Farmington Times versus City of Farmington, a 2007 case, which centered around the question of public access to applicants.
“(The Court) found no reason the speculative argument of better candidates was true,” Majors said. “(It’s) not intuitively obvious that qualified candidates would be deterred from applying.”
New Mexico Press Association Executive Director Sammy Lopez also spoke against the bill. Coincidentally, he was the publisher of the Times when it sued the city of Farmington.
He said there were 91 applicants for the city manager job. He questioned whether the response would have been weaker had there been implication of public release.
Lopez said most candidates did not complete the formal application asking about felony conviction, DWIs and other issues in their past.
“The sponsors of this bill must believe our current leaders are not qualified,” Lopez said.
He also said the public should not have to rely on the word of a public official.
“The public should be able to see for themselves,” he said.
Sen. Liz Stefanics, D-Bernalillo, Santa Fe, asked if there were changes to the bill since it was passed two years ago and Tallman said no.
“This bill pulls us in two directions,” Stefanics said. “One direction is to protect high level individuals from having aspersions cast against them and the other wanting to take part in open government and transparency.”
Sen. Gregg Schmedes, R-Bernalillo, asked if the public entered the decision making process anywhere before the three final candidates are selected and Estes offered that there are usually citizens on hiring committees.
There was also discussion on keeping the proportion of ethnic minorities or women through to the final three candidates.
“What if there’s this diverse pool of candidates by ethnicity or maybe liberals and conservatives, and then here’s this finalist pool that doesn’t reflect that?” Schmedes said. “If you have 100 applicants in the pool, its diversity should be reflected in the final four.”
The bill passed 5 to 2 and moves next to the Senate Judiciary Committee where it is not yet scheduled.