The Española School Board routinely breaks into committees to discuss nearly every facet of school district business, and the public is not invited.
The state Open Meetings Act requires that any time a majority of a public body’s members meet to discuss public business that the meeting be open to the public and written minutes be kept. But because only two members of the five-member School Board generally serve on the Board’s committees, the Board and Superintendent Janette Archuleta have refused to announce when or where nine of its 11 committees meet or to keep records of what is discussed. The two exceptions are the construction and budget committees, which as of December 2009 include all five Board members.
Until recently, the Board’s refusal to announce or keep minutes from its committee meetings violated one of its own policies which required the superintendent to do both at all committee meetings regardless of how many Board members served on them. The Board unanimously amended that policy March 3 at Archuleta’s recommendation to only require notices and minutes when a quorum of the Board is present.
“(The committees) don’t have a quorum of the Board, so by law, it says we don’t have to announce them,” Board member Coco Archuleta said. “I guess that’s what we’re looking at: do we really need to announce them (if) you’re complying with (the Act).”
But whether the Board’s committees’ meetings do comply with the Act is questionable. State law prohibits closing committee meetings if the committees formulate recommendations that the Board then rubber-stamps.
The state Attorney General’s Open Meetings Guide offers an example in which a subcommittee reviews applicants for a job and then recommends hiring someone to the full body. If the full body follows the committee’s recommendation without itself reviewing all applicants for the job, the committee’s meetings would have to be open under the Act, the guide states.
“Although not required to by any express provision, the (body), as a matter of practice, would be delegating to the committee its authority to select employees,” the guide states.
The Board recently did something similar, approving an addition to private contractor ProSec Security’s contract at the recommendation of the security committee. The committee’s recommendation was folded into the Board’s consent agenda and was not discussed before receiving unanimous approval.
New Mexico Foundation for Open Government Executive Director Sarah Welsh said scenarios such as the one described, where committees are calling the shots for the Board, should necessitate announced and recorded meetings.
“Essentially, it sounds like in practice they’re delegating the decision-making authority to this committee,” Welsh said. “That’s the key question: Who’s making the decision?”
Coco Archuleta insisted the committees have no decision-making authority, so their unannounced meetings fall within the scope of the Act.
“We could go above and beyond (the Act), but I don’t know if it’s important,” Coco Archuleta said. “Maybe we can (announce committee meetings), but I don’t know how many people would show up.”
He also said though the committees’ meetings are not announced or recorded, the public is welcome to attend — if they happen to find out when and where the meetings take place.
“You can’t just say, ‘If you came, we’d let you in,’” Welsh said. “That’s no excuse, especially if the Board is in the habit of rubber-stamping these things.”
On the opposite end of the spectrum, Española’s City Council announces and keeps minutes of all of the meetings of its committees, of which there are four: community development, public works, finance and public safety, Española District Three City Councilor Chayo Garcia said.
Garcia, who served on the development and finance committees under the city’s last administration, said open committee meetings are a valuable way to gain public input on policy decisions.
“I would love to have more people go into those committee meetings, regular constituents,” Garcia said.
She pointed to a Jan. 11 public safety committee meeting at which several Española business owners questioned officials over a rash of burglaries.
“I don’t think anything would have happened if the constituents didn’t go in and discuss their concerns,” Garcia said.
Coco Archuleta was not moved.
“If that’s what they want to do, that’s fine,” he said.
Remedy — in theory, the Attorney General could fine each Board member $500 for violating the Act and nullify any action taken as a result of an illegal meeting — seems far-fetched.
Welsh said the Attorney General has only levied one fine in the last decade for violating the Act, against Las Cruces School Board members in 2002. That school board entered into employment contracts with its superintendent during non-public meetings.
“It has to be a pretty egregious pattern of intentional violation,” Welsh said.
The Attorney General’s office usually recommends an offending public body remedy the violation of the Act.
For example, the Attorney General advised the Española School Board to re-enact in an open meeting a November 2008 closed session Assistant Attorney General Lesley Lowe had called “improper.”
That closed session included discussion on several topics such as a proposed bond measure that normally would need to be discussed in an open forum.
The Board has decided to appeal Lowe’s determination and recommendation.