OPEN MEETINGS ACT - Attorney General Of New Mexico
OPEN MEETINGS ACT
Office of the Attorney GeneralState of New MexicoTHEOPEN MEETINGS ACTNMSA 1978, Chapter 10, Article 15A Compliance Guide forNew Mexico Public Officials and CitizensHECTOR BALDERASAttorney GeneralThis eighth edition of the Compliance Guide updates the 2010 edition, primarily to reflecta legislative amendment enacted in 2013 that requires a public body to make the agendaof a regular or special meeting available to the public at least 72 hours in advance of themeeting, and to post meeting agendas on a public body’s website if one is maintained.Eighth Edition2015i
Office of the Attorney GeneralState of New MexicoOur MissionOur mission at the New Mexico Department of Justice is to serve and protect thecitizens of New Mexico by honorably carrying out the statutory responsibilities ofthe Attorney General.Our VisionOur mission is to seek, strengthen and empower partnerships with and amongcitizens, community and government agencies, law enforcement, and businesses inorder to make our community a safer and more prosperous place to live. We mustenforce the laws of New Mexico fairly and uniformly to ensure New Mexicansreceive justice and equal protection under the law.I am pleased to report that we are working hard to make changes necessary to serve and protect the State of NewMexico. I grew up facing many of the hardships that New Mexicans experience every day. It is that sharedexperience that motivates me to be a fierce advocate and a voice for our communities. My outreach efforts willsupport long-term goals of improving transparency in government and empowering the citizens of New Mexico.The “Open Meetings Act,” NMSA 1978, Sections 10-15-1 to 10-15-4, is known as a “sunshine law.” Sunshinelaws generally require that public business be conducted in full public view, that the actions of public bodies betaken openly, and that the deliberations of public bodies be open to the public. Like you, I strongly support opengovernment, particularly meetings held by public officials to discuss public business. Public access to theproceedings and decision-making processes of governmental boards, agencies and commissions is an essentialelement of a properly functioning democracy. As Attorney General, I am charged by law with the responsibilityto enforce the provisions of the New Mexico Open Meetings Act. The publication of this Guide is one of the waysto fulfill my office responsibilities as an effective resource for policymakers and the public in order to promotecompliance.HECTOR BALDERASAttorney General of New Mexico2015ii
Office of the Attorney GeneralState of New MexicoTable of ContentsI.II.III.Introduction. 1Open Meetings Act. 2Section 10-15-1. Formation of Public Policy.6A. State Policy on Open Meetings.6B. Public Meetings Subject to the Act. 71. Rolling Quorums. 72. Policymaking Bodies. 8C. Telephone Conferences.11D. Notice Requirements.12E. Reconvened Meetings.15F. Agenda.161. Seventy-Two Hour Requirement.162. Action on Agenda Items.173. Specific Agenda Items.17G. Minutes.18H. Exceptions. 191. Licensing.202. Limited Personnel Matters .213. Administrative Adjudicatory Deliberations.234. Personally Identifiable Student Information.245. Collective Bargaining.256. Certain Purchases. 267. Litigation. 288. Real Property and Water Rights. 299. Public Hospital Board Meetings. 3010. Gaming Control Board Meetings. 30I. Closed Meetings. 311. Closing an Open Meeting. 312. Closed Meeting Outside an Open Meeting. 32J. Statement Regarding Closed Discussions. 34IV. Section 10-15-2. State Legislature; Meetings. 35A. Meetings of Committees and Policymaking Bodies of the Legislature. 35B. Exceptions. 36C. Definition of “Meeting”.37V. Section 10-15-3. Invalid Actions; Standing.38A. Invalid Actions.38B. Enforcement. 38C. District Court Jurisdiction. 42D. Other Remedies. 43VI. Section 10-15-4. Criminal Penalties. 44Compliance Checklist. 45iii
Office of the Attorney GeneralState of New MexicoI. IntroductionThe “Open Meetings Act,” NMSA 1978, Sections10-15-1 to 10-15-4, is known as a “sunshine law.”All states have such laws, which are essentiallymotivated by the belief that the democratic ideal isbest served by a well-informed public. Sunshinelaws generally require that public business beconducted in full public view, that the actions ofpublic bodies be taken openly, and that thedeliberations of public bodies be open to the public.public business; the second defines the policy as itapplies to meetings of committees of the statelegislature; the third addresses the effect thatviolating the Act may have on the validity ofactions taken by public bodies; and the fourthdefines the penalty for violation of the Act. Theseareas are discussed sequentially in the text of thisGuide. For ease of reference, the entire Act is setforth on pages 2 through 5.The Attorney General is authorized bySection 10-15-3(B) of the Act to enforce ��) has been prepared by the AttorneyGeneral to provide assistance in the application ofthe provisions of the Act to all boards andcommissions of the state, counties, municipalities,school districts, conservation districts, irrigationdistricts, housing authorities, councils ofgovernment and other public bodies that areresponsible to the public and subject to the Act. Itshould be noted that many of the issues discussed inthis Guide have not been the subjects of judicialinterpretation. By necessity, therefore, the Guide inmost respects represents the views of the AttorneyGeneral. Although the Attorney General believesthe construction of the Open Meetings Act reflectedin this Compliance Guide is correct, it is alwayspossible that a court faced with the same issueswould disagree with the Attorney General’sinterpretation.The Open Meetings Act was most recentlyamended during the 2013 legislative session. Theamendment requires, with some exceptions, that apublic body make the agendas of regular andspecial meetings available to the public at leastseventy-two hours prior to the meetings and postthe agendas on the public body’s website if one ismaintained.For ease of understanding, the text in this Guide isdivided into three areas:1) The Law, as written, is in bold type.2) Commentary or explanation is in regular type.3) Examples of when the law would and would notapply are in italic type.If you would like additional copies of this Guide, orif you have any questions about the Guide or theapplicability of the Act, please contact the OpenGovernment Division of the Office of the AttorneyGeneral, P.O. Drawer 1508, Santa Fe, New Mexico87504-1508, or by telephone at (505) 827-6070.This Guide is also posted on the Office of theAttorney General’s website at www.nmag.gov.New Mexico’s Open Meetings Act addresses fourareas. The first defines the basic policy of the statewith respect to meetings of non-legislative publicbodies and how it is to be applied in conducting1
Office of the Attorney GeneralState of New MexicoII. Open Meetings Actparticipate in a meeting of the public body bymeans of a conference telephone or othersimilar communications equipment when it isotherwise difficult or impossible for themember to attend the meeting in person,provided that each member participating byconference telephone can be identified whenspeaking, all participants are able to heareach other at the same time and members ofthe public attending the meeting are able tohear any member of the public body whospeaks during the meeting.10-15-1. Formation of Public PolicyA. In recognition of the fact that arepresentative government is dependentupon an informed electorate, it is declared tobe public policy of this state that all personsare entitled to the greatest possibleinformation regarding the affairs ofgovernment and the official acts of thoseofficers and employees who represent them.The formation of public policy or theconduct of business by vote shall not beconducted in closed meetings. All meetingsof any public body except the legislature andthe courts shall be public meetings, and allpersons desiring shall be permitted to attendand listen to the deliberations andproceedings. Reasonable efforts shall bemade to accommodate the use of audio andvideo recording devices.D. Any meetings at which the discussion oradoption of any proposed resolution, rule,regulation or formal action occurs and atwhich a majority or quorum of the body is inattendance, and any closed meetings, shall beheld only after reasonable notice to thepublic. The affected body shall determine atleast annually in a public meeting what noticefor a public meeting is reasonable whenapplied to that body. That notice shallinclude broadcast stations licensed by thefederal communications commission andnewspapers of general circulation that haveprovided a written request for such notice.B. All meetings of a quorum of members ofany board, commission, administrativeadjudicatory body or other policymakingbody of any state agency, any agency orauthority of any county, municipality, districtor any political subdivision, held for thepurpose of formulating public policy,including the development of personnelpolicy, rules, regulations or ordinances,discussing public business or for the purposeof taking any action within the authority ofor the delegated authority of any board,commission or other policymaking body aredeclared to be public meetings open to thepublic at all times, except as otherwiseprovided in the constitution of New Mexicoor the Open Meetings Act.No publicmeeting once convened that is otherwiserequired to be open pursuant to the OpenMeetings Act shall be closed or dissolved intosmall groups or committees for the purposeof permitting the closing of the meeting.E. A public body may recess and reconvene ameeting to a day subsequent to that stated inthe meeting notice if, prior to recessing, thepublic body specifies the date, time and placefor continuation of the meeting, and,immediately following the recessed meeting,posts notice of the date, time and place forthe reconvened meeting on or near the doorof the place where the original meeting washeld and in at least one other locationappropriate to provide public notice of thecontinuation of the meeting. Only mattersappearing on the agenda of the originalmeeting may be discussed at the reconvenedmeeting.C. If otherwise allowed by law or rule of thepublic body, a member of a public body mayF. Meeting notices shall include an agenda2
Office of the Attorney GeneralState of New Mexicocontaining a list of specific items of businessto be discussed or transacted at the meetingor information on how the public may obtaina copy of such an agenda. Except in the caseof an emergency or in the case of a publicbody that ordinarily meets more frequentlythan once per week, at least seventy-twohours (72) hours prior to the meeting, theagenda shall be available to the public andposted on the public body’s web site, if one ismaintained. A public body that ordinarilymeets more frequently than once per weekshall post a draft agenda at least seventy-two(72) hours prior to the meeting and a finalagenda at least thirty-six (36) hours prior tothe meeting. Except for emergency matters, apublic body shall take action only on itemsappearing on the agenda. For purposes ofthis Subsection, an “emergency” refers tounforeseen circumstances that, if notaddressed immediately by the public body,will likely result in injury or damage topersons or property or substantial financialloss to the public body. Within ten days oftaking action on an emergency matter, thepublic body shall report to the attorneygeneral’s office the action taken and thecircumstances creating the emergency;provided that the requirement to report tothe attorney general is waived upon thedeclaration of a state or national emergency.H. The provisions of Subsections A, B and Gof this section do not apply to:(1) meetings pertaining to issuance,suspension, renewal or revocation of a licenseexcept that a hearing at which evidence isoffered or rebutted shall be open. All finalactions on the issuance, suspension, renewalor revocation of a license shall be taken at anopen meeting;(2)limitedpersonnelmatters;provided that for purposes of the OpenMeetings Act, “limited personnel matters”means the discussion of hiring, on of or the investigation orconsideration of complaints or chargesagainst any individual public employee;provided further that this Subsection is not tobe construed as to exempt final actions onpersonnel from being taken at open publicmeetings; nor does it preclude an aggrievedpublic employee from demanding a publichearing. Judicial candidates interviewed byany commission shall have the right todemand an open interview;(3) deliberations by a public bodyin connection with an administrativeadjudicatory proceeding. For purposes of thisparagraph, an “administrative adjudicatoryproceeding” means a proceeding brought byor against a person before a public body inwhich individual legal rights, duties orprivileges are required by law to bedetermined by the public body after anopportunity for a trial-type hearing. Exceptas otherwise provided in this section,the actual administrative adjudicatoryproceeding at which evidence is offered orrebutted and any final action taken as aresult of the proceeding shall occur in anopen meeting;G. The board, commission or otherpolicymaking body shall keep writtenminutes of all its meetings. The minutes shallinclude at a minimum the date, time andplace of the meeting, the names of membersin attendance and those absent, the substanceof the proposals considered and a record ofany decisions and votes taken that show howeach member voted. All minutes are open topublic inspection. Draft minutes shall beprepared within ten working days after themeeting and shall be approved, amended ordisapproved at the next meeting where aquorum is present. Minutes shall not becomeofficial until approved by the policymakingbody.(4) the discussion of l student, unless the student, hisparent or guardian requests otherwise;3
Office of the Attorney GeneralState of New Mexicoof the policymaking body; the authority forthe closure and the subject to be discussedshall be stated with reasonable specificity inthe motion calling for the vote on a closedmeeting; the vote shall be taken in an openmeeting; and the vote of each individualmember shall be recorded in the minutes.Only those subjects announced or voted uponprior to closure by the policymaking bodymay be discussed in a closed meeting; and(5) meetings for the discussion ofbargaining strategy preliminary to king body and a bargaining unitrepresenting the employees of thatpolicymaking body and collective bargainingsessions at which the policymaking body andthe representatives of the collectivebargaining unit are present;(2) if called for when the policymakingbody is not in an open meeting, shall not beheld until public notice, appropriate underthe circumstances, stating the specificprovision of the law authorizing the closedmeeting and stating with reasonablespecificity the subject to be discussed, is givento the members and to the general public.(6) that portion of meetings at which adecision concerning purchases in an amountexceeding two thousand five hundred dollars( 2,500) that can be made only from onesource and that portion of meetings at whichthe contents of competitive sealed proposalssolicited pursuant to the Procurement Codeare discussed during the contract negotiationprocess. The actual approval of purchase ofthe item or final action regarding theselection of a contractor shall be made in anopen meeting;J.Following completion of any closedmeeting, the minutes of the open meeting thatwas closed, or the minutes of the next openmeeting if the closed meeting was separatelyscheduled, shall state that the mattersdiscussed in the closed meeting were limitedonly to those specified in the motion forclosure or in the notice of the separate closedmeeting. This statement shall be approved bythe public body under Subsection G of thissection as part of the minutes.(7) meetings subject to the attorneyclient privilege pertaining to threatened orpending litigation in which the public body isor may become a participant;(8) meetings for the discussion of thepurchase, acquisition or disposal of realproperty or water rights by the public body;10-15-1.1. Short Title.(9) those portions of meetings ofcommittees or boards of public hospitalswhere strategic and long-range businessplans or trade secrets are discussed; andNMSA 1978, Chapter 10, Article 15 may becited as the “Open Meetings Act.”10-15-2. State Legislature; Meetings.(10) that portion of a meeting of thegaming control board dealing withinformation made confidential pursuant tothe provisions of the Gaming Control Act.A. Unless otherwise provided by joint houseand senate rule, all meetings of anycommittee or policymaking body of thelegislature held for the purpose of discussingpublic business or for the purpose of takingany action within the authority of or thedelegated authority of the committee or bodyare declared to be public meetings open tothe public at all times. Reasonable notice ofmeetings shall be given to the public byI. If any meeting is closed pursuant to theexclusions contained in Subsection H of thissection, the closure:(1) If made in an open meeting, shallbe approved by a majority vote of a quorum4
Office of the Attorney GeneralState of New Mexicopublication or by the presiding officer of eachhouse prior to the time the meeting isscheduled.C. The district courts of this state shall havejurisdiction, upon the application of anyperson to enforce the purpose of the OpenMeetings Act, by injunction, mandamus orother appropriate order. The court shallaward costs and reasonable attorney fees toany person who is successful in bringing acourt action to enforce the provisions of theOpen Meetings Act. If the prevailing party ina legal action brought under this section is apublic body defendant, it shall be awardedcourt costs. A public body defendant thatprevails in a court action brought under thissection shall be awarded its reasonableattorney fees from the plaintiff if the plaintiffbrought the action without sufficientinformation and belief that good groundssupported it.B. The provisions of Subsection A of thissection do not apply to matters relatingto personnel or matters adjudicatory innature or to investigative or quasi-judicialproceedings relating to ethics and conduct orto a caucus of a political party.C. For the purpose of this section, “meeting”means a gathering of a quorum of themembers of a standing committee orconference committee held for the purpose oftaking any action within the authority of thecommittee or body.10-15-3. Invalid Actions; Standing.A. No resolution, rule, regulation, ordinanceor action of any board, commission,committee or other policymaking body shallbe valid unless taken or made at a meetingheld in accordance with the requirements ofNMSA 1978, Section 10-15-1. Everyresolution, rule, regulation, ordinance oraction of any board, commission, committeeor other policymaking body shall be presumedto have been taken or made at a meeting heldin accordance with the requirements ofNMSA 1978, Section 10-15-1.D. No section of the Open Meetings Act shallbe construed to preclude other remedies orrights not relating to the question of openmeetings.B. All provisions of the Open Meetings Actshall be enforced by the attorney general orby the district attorney in the countyof jurisdiction. However, nothing in thatact shall prevent an individual fromindependently applying for enforcementthrough the district courts, provided that theindividual first provides written notice of theclaimed violation to the public body and thatthe public body has denied or not acted onthe claim within fifteen days of receiving it. Apublic meeting held to address a claimedviolation of the Open Meetings Act shallinclude a summary of comments made at themeeting at which the claimed violationoccurred.Commentary10-15-4. Penalty.Any person violating any of the provisions ofNMSA 1978, Section 10-15-1 or 10-15-2 isguilty of a misdemeanor and upon convictionshall be punished by a fine of not more thanfive hundred dollars ( 500) for each offense.Public bodies often adopt Robert’s Rules ofOrder or a similar code of parliamentaryprocedure to govern the process for calling andconducting meetings and taking action. Thepublic body must take care not to violate theOpen Meetings Act in its attempt to complywith its own parliamentary rules. The OpenMeetings Act is mandatory and will supersedeany such local policy or procedure. While aviolation of the Open Meetings Act will void theaction taken, actions that do not comply with abody’s own parliamentary rules may not beinvalidated where there is no statutory violation.5
Office of the Attorney GeneralState of New MexicoIII. Section 10-15-1.Formation of Public Policyproceedings. The Act does not require a publicbody to allow members of the public to speak atits meetings.A. State Policy on Open MeetingsThe LawExample 1:In recognition of the fact that arepresentative government is dependent uponan informed electorate, it is declared to bepublic policy of this state that all persons areentitled to the greatest possible informationregarding the affairs of government and theofficial acts of those officers and employeeswho represent them. The formation of publicpolicy or the conduct of business by vote shallnot be conducted in closed meetings. Allmeetings of any public body except thelegislature and the courts shall be publicmeetings, and all persons so desiring shall bepermitted to attend and listen to thedeliberations and proceedings. Reasonableefforts shall be made to accommodate the useof audio and video recording devices.A county manager needs the immediateapproval of the board of county commissionersbefore executing a contract and calls thecommissioners individually by telephone tosecure such approval. Such a telephone poll asa substitute for official board action violates theintent of the Act. However, the board may avoidsuch hazards if it discusses the anticipatedcontract at a properly convened meeting anddelegates to the county manager, its chiefadministrative officer, the authority to executein the board’s name. The county manager is notabsolutelyprecludedfromtelephoningindividual commissioners. The telephone poll isimproper in this example because it is used tosecure the approval of or final action by theboard outside of an open meeting.CommentaryExample 2:This Subsection states the basic open meetingspolicy of the state. The Act generally prohibits apublic body from conducting public business insecret or in closed meetings and requires thatsuch business be conducted by the public bodyacting as a whole at meetings open to allpersons who wish to attend and listen.The Act requires members of a public body toconduct business in public and to allow allpersons desiring to attend and listen to theproceedings. These requirements effectivelypreclude the members of a public body fromconferring privately during meetings by passingnotes, sending emails and texts or other means.The city council is contemplating an ordinanceadopting an 11:00 p.m. curfew for all personsunder 18 years of age. Hundreds of residentsattend the first meeting on the ordinance,carrying placards for and against it. Theaudience becomes loud and agitated and thelocal police remove several people for makingthreats against the council. The meeting lastsuntil 2:15 a.m. At the next meeting on theordinance, the council limits presentations tothose persons whose remarks are submitted tothe council five days in advance of the meetingand places a five minute limit on such remarks.Unless a public body cannot reasonably do so, itmust permit members of the public attending itsmeetings to record or video tape theSuch restrictions are permitted. The Actrequires only that persons be permitted to“attend and listen.” An open public meeting is6
Office of the Attorney GeneralState of New Mexiconot necessarily an open forum and, so long asthe Act is complied with, public bodies maylimit or not allow public debate and may takesteps necessary to maintain public order.adjudicatory body or other policymakingbody of any state agency, any agency orauthority of any county, municipality,district or any political subdivision, held forthe purpose of formulating public policy,including the development of personnelpolicy, rules, regulations or ordinances,discussing public business or for thepurpose of taking any action within theauthority of or the delegated authority ofanyboard,commissionorotherpolicymaking body are declared to bepublic meetings open to the public at alltimes, except as otherwise provided in theconstitution of New Mexico or the OpenMeetings Act. No public meeting onceconvened that is otherwise required to beopen pursuant to the Open Meetings Actshall be closed or dissolved into smallgroups or committees for the purpose ofpermitting the closing of the meeting.CommentaryThe courts and the legislature are excludedfrom the provisions of the Act that apply toother public bodies. Provisions of the Actspecifically applicable to the legislature arediscussed in Section IV.Example 3:The Disciplinary Board established by theState Supreme Court to investigate attorneymisconduct holds a meeting to discuss hearingprocedures. Because the Board is establishedby the Supreme Court and is an agency of thecourt, it is not subject to the Act under theexpress exemption for courts. Although exemptfrom the Act’s coverage, the Supreme Court isfree to promulgate regulations coveringwhether and when the Board’s meetings areopen to the public and requirements for publicnotice if it so chooses.CommentaryThis Subsection defines those meetings thatare required to be open to the public, unlessotherwise excepted from this requirement bythe Constitution or another provision of theAct or an express and unavoidable conflictwith more specific language in another law.The provisions of the Act apply to any meetingof a quorum of a policymaking public bodyheld for the purpose of:CommentaryAs a policy statement, Subsection A generallysets forth the spirit or intent of The Law andserves as the guiding principle to be followedin applying the particular provisions of theAct. Where a situation is not specificallycovered by the Act, doubt as to the propercourse of action should be resolved in favor ofopenness whenever possible. Compliance withthe Act is not just a matter of adhering to theAct’s specific requirement
the meeting notice if, prior to recessing, the public body specifies the date, time and place for continuation of the meeting, and, immediately following the recessed meeting, posts notice of the date, time and place for the reconvened meeting on or near the door of the place where the original meeting was
2022 Open Meetings Handbook Office of the Attorney General 1 . I. Introduction A. Open Meetings Act The Open Meetings Act (the “Act”) was adopted to help make governmental decisionmaking - accessible to the public. It requires meetings of governmental bodies to be open to the public, except for expressly authorized closed sessions, 1
Attorney General of Iowa Other Members iii Honorable Arthur K. Bolton Attorney General of Georgia Honorable Chauncey H. Browning, J 1'. Honorable John C. Danforth Attorney General of Missouri Honorable J olm P. Moore Attorney General of Colorado Attorney General of West Virginia Honorable Larry Derryberry Attorney General of Oklahoma
POWERS OF ATTORNEY ACT 2003: A COMMENTARY 6 POWERS OF ATTORNEY ACT 2003: COMMENTARY The commentary is provided in black text. Reference to the "Act" is a reference to the Powers of Attorney Act 2003 as amended. Reference to the "Regulation" is a reference to the Powers of Attorney Regulation 2011, recently amended by the Powers of Attorney Amendment Act 2013 and the Powers of
COUNTY Archery Season Firearms Season Muzzleloader Season Lands Open Sept. 13 Sept.20 Sept. 27 Oct. 4 Oct. 11 Oct. 18 Oct. 25 Nov. 1 Nov. 8 Nov. 15 Nov. 22 Jan. 3 Jan. 10 Jan. 17 Jan. 24 Nov. 15 (jJr. Hunt) Nov. 29 Dec. 6 Jan. 10 Dec. 20 Dec. 27 ALLEGANY Open Open Open Open Open Open Open Open Open Open Open Open Open Open Open Open Open Open .
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6 of 2001, Act No. 7 of 2002, Act No. 15 of 2003, Act No. 4 of 2004, Act No. 6 of 2005, Act No. 10 of 2006, Act No. 9 of 2007, Act No. 8 of 2008, Act No. 8 of 2009, Act No. 10 of 2010, Act No. 4 of 2012.] PART I - PRELIMINARY 1. Short title and commencement This Act may be cited as the Income Tax Act, 1973 and shall, subject to the
open and closed meetings borrowed heavily from the Local Government Act. The open meeting provisions enacted in 2003 remain in force today. Current Open Meeting Requirements for Local Governments Subsection 89(1) of the Community Charter sets the general rule for local government meetings in B.C. which is that: meetings must be open to the public
Mar 06, 2020 · Attorney General of New Jersey Assistant Attorney General Counsel of Record Attorney for Amicus Curiae JOHN T. PASSANTE State of New Jersey Deputy Attorney General New Jersey Attorney General’s Office Richard J. Hughes Justice Complex 25 Market Street Trenton, NJ 086
