Commentary: In a decision filed Thursday, the New Mexico Court of Appeals held that committees appointed by public bodies must comply with the Open Meetings Act (OMA), and even when meetings are closed due to the attorney-client privilege, substantial OMA requirements still must be met.
The New Mexico Foundation for Open Government and the New Mexico Press Association filed an amicus brief as to the open meetings portion of the case, which challenged the enforceability of the pay-to-play settlements with the State Investment Council. (See pages 36-53 of State Investment Council v. Weinstein et al.)
The Court held the State Investment Council had no authority to delegate its settlement decisions to a litigation committee, but even if properly constituted, the committee violated OMA by failing to provide notice, posting an agenda and opening the meeting to the public. Because of the improper delegation, the court did not have to address the open-meetings issue but chose to do so, noting the importance of the OMA and the likelihood that the question of whether committees are subject to OMA would arise again.
"The Open Meetings part of this decision is a great victory for transparency and for the people of New Mexico," said Santa Fe attorney Daniel Yohalem, who represented FOG and the NMPA. "The Court of Appeals has put a stop to a major ploy used by state boards and local governments to avoid taking action in the public's eye."
Though the appellate court held that the litigation committee violated OMA, it found that the SIC cured the violation by approving the settlements 30 months after the committee's initial action. That ruling was based on the unusual fact in the case that during the intervening years the settlements had been reviewed and upheld by a district court judge. Notably, the Court ruled that the ratification was not retroactive to the date of the committee's approval.
Judge Michael Bustamante, on behalf of the three-judge panel, warned public agencies not to interpret the decision as allowing public bodies to violate OMA without fear of sanctions: "We recognize that our holding could be seen as stretching the notion of prompt remedial action beyond the breaking point...Without the presence of judicial review we would not be tolerant of the delay seen here," Judge Bustamante wrote.
The appellate court affirmed the principles of open government and noted it was "patently contrary to OMA's purpose" to allow a public body to avoid OMA requirements by delegating its responsibilities to a smaller body.
"The Court strongly warns public bodies they will be accountable if they violate OMA," Yohalem added. "In short, a good day for New Mexicans and transparency."