On Monday, March 16, in an extraordinary first for the Albuquerque City Council, the general public was not allowed to sit in the public audience area of the council chambers. The City Council Chamber doors were closed to the public, audience seats were vacant, all as a precaution to stop the spread of the coronavirus. Only members of the media, city councilors and some city workers were allowed inside during the meeting. Outside of the council chambers, APD Police were stationed to keep people out or checking people’s credentials who were trying to get in.
Albuquerque City Councilor Diane Gibson asked the question:
“Keeping the general public out of this meeting and it feels weird just to have us, right?”
The city council meeting was broadcast on GOV TV and the public could watch the meeting online. For those who wanted to participate in public comment, they could have emailed, faxed or hand delivered their comments to the councilors before the meeting. According to City Council representatives, the City Council staff will be putting together a large packet of public comment that will be available for inspection.
CITY COUNCIL VIOLATES NEW MEXICO OPEN MEETINGS ACT
The “Open Meetings Act,” NMSA 1978, Sections 10-15-1 to 10-15-4, is known as a “sunshine law.” Virtually every state has such a law, which are essentially motivated by the belief that the democratic ideal is best served by a well-informed public. Sunshine laws generally require that public business be conducted in full public view, that the actions of public bodies be taken openly, and that the deliberations of public bodies be open to the public. It is the New Mexico Attorney General who is authorized by Section 10-15-3(B) of the Act to enforce its provisions.
The March 16 City Council meeting and the votes taken were in clear violation of the New Mexico Open Meetings Act.
Section 10-15-1 A and B of the New Mexico Open Meetings Act provides as follows:
10-15-1. Formation of Public Policy
A. In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. The formation of public policy or the conduct of business by vote shall not be conducted in closed meetings. All meetings of any public body except the legislature and the courts shall be public meetings, and all persons desiring shall be permitted to attend and listen to the deliberations and proceedings.
“B. All meetings of a quorum of members of any board, commission, administrative adjudicatory body or other policy making body of any state agency, any agency or authority of any county, municipality, district or any political subdivision, held for the purpose of formulating public policy, including the development of personnel policy, rules, regulations or ordinances, discussing public business or for the purpose of taking any action within the authority of or the delegated authority of any board, commission or other policy making body are declared to be public meetings open to the public at all times, except as otherwise provided in the constitution of New Mexico or the Open Meetings Act. No public meeting once convened that is otherwise required to be open pursuant to the Open Meetings Act shall be closed or dissolved into small groups or committees for the purpose of permitting the closing of the meeting.”
The Attorney General’s “Compliance Guide For The Open Meetings Act” provides the following commentary:
“This Subsection [B] states the basic open meetings policy of the state. The Act generally prohibits a public body from conducting public business … in closed meetings and requires that such business be conducted by the public body acting as a whole at meetings open to all persons who wish to attend and listen. The Act requires members of a public body to conduct business in public and to allow all persons desiring to attend and listen to the proceedings.”
It is also clear that the resolutions and ordinances enacted by the City Council at its March 16 meeting were void. Section 10-15-3 of the Open Meetings Act provides as follows:
“Invalid Actions; Standing. A. No resolution, rule, regulation, ordinance or action of any board, commission, committee or other policymaking body shall be valid unless taken or made at a meeting held in accordance with the requirements of NMSA 1978, Section 10-15-1. Every resolution, rule, regulation, ordinance or action of any board, commission, committee or other policymaking body shall be presumed to have been taken or made at a meeting held in accordance with the requirements of NMSA 1978, Section 10-15-1.”
The New Mexico Open Meetings Act also provides for criminal penalties. Section 10-15-4 of the Open Meetings Act provides as follows:
Any person violating any of the provisions of NMSA 1978, Section 10-15-1 or 10-15-2 is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than five hundred dollars ($500) for each offense.”
The Attorney General’s “Compliance Guide For The Open Meetings Act” provides the following commentary:
“If, after investigating charges that the Act has been violated, the Attorney General finds that the charges are valid and substantial, the Attorney General may initiate a criminal prosecution against each of those persons responsible for the violation. The public officers or employees charged may be held personally responsible for violations of the Act if it is shown that they intentionally acted in a manner that violated the Act. In addition to the members of the public body, other officials responsible for implementing the Act’s provisions may be found liable.”
The New Mexico Attorney General’s Office publishes a “Compliance Guide For The Open Meetings Act”, that also contains the full act and commentary with a checklist for compliance, and it can be found here:
COUNCIL VOTES TO EXPAND MAYOR’S EMERGENCY POWERS
During the March 16 meeting, the Albuquerque city council voted 6 to 3 in favor of amending the city’s “Emergency Powers Ordinance” to help prevent further spread of COVID-19. The updated bill expands the mayor’s power to respond to the outbreak. City Councilors Isaac Benton, Diane Gibson, Cynthia Borrego, Klarissa Peña and Lan Sena voted Yes to pass the legislation while City Councilors Brook Bassan, Don Harris and Trudy Jones voted NO.
It was on March 11, Governor Michelle Lujan Grisham became the first New Mexico Governor to invoke the 2003 Public Health Emergency Response Act (PHERA), issuing an Executive Order declaring a “public health emergency” giving her administration broad powers to deal with the coronavirus.
Passed in the 1960s by the then 5 member city commission, the Civil Emergency Powers ordinance was initially passed to address potential widespread rioting. The original bill includes many provisions that would be unenforceable today, such as closing down gun stores and gas stations.
The city’s Civil Emergency Powers currently limits emergency powers to situations like riots and natural disasters. The amendments essentially update the existing ordinance adding a public health provision to the provisions governing disasters like earthquakes and riots. The rules governing disasters like earthquakes and riots do not apply to this type of situation.
The new ordinance broadens the mayor’s “emergency powers”. Under the ordinance, the mayor could invoke specific powers like reallocating city resources to combat the epidemic and ordering the closure of streets, day cares and places of “mass assembly” like theaters and sports venues. The mayor could also require retailers to set limits on how many “medical, health and sanitation” products they sell to one person per day.
Under the changes to the “Emergency Powers Ordinance” the Mayor can declare a public health emergency for up to 7 days. While the mayor can issue the proclamation, the City Council is given the authority to amend, cancel or extend the order. The city council is also given authority to reverse any decision declared by the mayor. The powers granted to the mayor would only last for 30 days, but could be lengthened or shortened by the city council.
The Mayor will now have the authority to close streets, limit the quantities of certain items sold at stores and close places where big gatherings happen such as places of worship. It also gives the Mayor power to close city facilities, relocate city staff and divert funding around to deal with a crisis. However, the ordinance does not let a Mayor seize private property or put individuals in quarantine. The emergency power would join others the mayor has like declaring a civil emergency if there is a riot or a natural disaster.
City spokeswoman Jessie Damazyn issued the following statement on behalf of Mayor Keller’s Office:
“If we declare a public health emergency, it will be to tap into state and federal funding and allocate resources to limit the impact of COVID-19 on our entire community. The declaration would be in step with the President of the United States, the Governor of New Mexico, dozens of other states and cities around the country including the Mayor of Rio Rancho who have already made such declarations. The legislation [passed] … tonight, does not ban gun sales, confiscate guns, prohibit liquor sales, nor does it implement a curfew or close streets, and the Mayor’s declaration will not either. Anyone suggesting otherwise is wrong, period. Stoking fear and mistrust will only harm our efforts to fight this public health emergency as a unified community.”
Paul Gessing, President of the conservative Rio Grande Foundation, expressed opposition to the ordinance raising concerns about city leaders abusing the bill’s power and had this to say:
“I think everybody is willing to compromise. We don’t want to act rationally in ways that dramatically empower government and policy makers in ways that¬—maybe they’re best of actors—but they’re potentially giving them abusive powers to act in the future and I don’t want that to happen.”
Still others interviewed expressed objections that barring the public from the meeting violated constitutional rights. Some criticized the city’s decision to hold the meeting without an ordinary public audience. Terri O’Hare, a local advocate for the disabled community, said it essentially silenced community input and had this to say:
“If public comments remain shut down to just emails/online forms/letters written to councilors, with the hope they get read and not shuffled to some folder, our city suffers. … Our civil rights suffer and the public’s right to transparent and active participation in government takes a big hit.”
City Attorney Esteban Aguilar Jr. offered his legal opinon to the council and said the council had acted legally and appropriately.
AG HECTOR BALDERAS ISSUES GUIDELINES TO PUBLIC ENTITIES REGARDING OPEN MEETINGS ACT AND INSPECTION OF PUBLIC RECORDS ACT COMPLIANCE DURING COVID-19 STATE OF EMERGENCY
On Tuesday, March 17, the very day after the City Council meeting, Attorney General Hector Balderas issued “Guidance to Public Entities Regarding Open Meetings Act and Inspection of Public Records Act Compliance During COVID-19 State of Emergency” following is the press release in full:
For Immediate Release:
March 17, 2020
Contact: Matt Baca — (505) 270-7148
AG Balderas Issues Guidance to Public Entities Regarding Open Meetings Act and Inspection of Public Records Act Compliance During COVID-19 State of Emergency
Santa Fe,NM—Today [March 17], Attorney General Balderas issued the following guidance to public entities across the State of New Mexico regarding their ongoing obligations to comply with the Open Meetings Act (OMA) and the Inspection of Public Records Act (IPRA) during the state of emergency in New Mexico.
“The health and safety of New Mexican families is the number one priority across our State, but government must remain transparent and accountable, especially during a state of emergency,” said Attorney General Balderas. “All public entities should follow the guidance of public health officials and make any necessary adjustments to ensure compliance with our transparency laws during this time.”
The Office of the Attorney General advises all public entities subject to OMA to first and foremost follow the guidance of the Department of Health and other health officials to ensure the health and safety of both members of the entity and the public. Accordingly, the most prudent thing to do to ensure compliance with OMA would be to postpone any non-essential public meeting during the pendency of the state of emergency. If, however, a public entity has an emergency or time-sensitive matter to attend to, it may proceed with a virtual meeting under the following guidelines:
· Notice of the meeting must still comply with the mandates of OMA, and it should contain detailed information about how members of the public may attend and listen via telephone, live streaming, or other similar technologies—this should include such detail as relevant phone numbers, web addresses, etc.;
· While provided by alternative means, the public must have some form of access to the meeting to substitute for the access it would during any normally scheduled public meeting subject to OMA;
· Where possible, videoconference is the best alternative method of holding meetings;
· At the start of the meeting, the chairperson should announce the names of those members of the public entity participating remotely;
· All members of the public entity participating remotely must identify themselves whenever they speak and must be clearly audible to the other members of the public entity and to the public;
· The chairperson or person leading the meeting should suspend discussion if the audio or video is interrupted;
· All votes of the public entity should be by roll call vote;
· The public entity should produce and maintain a recording of the open session of the meeting.
To comply with IPRA, the Office of the Attorney General recommends that, first, agencies continue to satisfy IPRA’s deadlines and fulfill IPRA requests however possible in light of Department of Health’s recommendations and any order pursuant to the state of emergency. Of paramount importance, as is always the case, a public entity’s records custodian should communicate promptly with the requesting party, however now regarding the circumstances of production in the context of the state of emergency.
Pursuant to public health guidelines during the state of emergency, public entities should suspend all in-person inspection of public records during the pendency of the state of emergency. Public entities should make every effort to comply with the mandates of IPRA by producing records electronically. If circumstances arise where records are not available electronically and cannot be produced in the timeframes mandated by IPRA, an agency may designate a request as excessively burdensome due to the state of emergency, and communicate to the requestor that the request will be fulfilled as required by IPRA when the state of emergency is lifted.
In short, IPRA very much still applies and all deadlines should be satisfied to the fullest extent possible. Where the state of emergency hampers or otherwise prohibits an entity’s ability to respond, we reiterate that the entity nonetheless should communicate promptly with the requester to make alternative arrangements to allow for the inspection of records, in keeping with the spirit and intent of IPRA.
The Office of the Attorney General continues to be available to any public entity that has questions or concerns about OMA and IPRA compliance, and will also continue to take OMA and IPRA complaints during the state of emergency.”
PRECAUTIONS ALREADY IMPLEMENTED BY CITY
City officials have already taken precautions to deal with the health crisis. The city had closed the Main Library in Downtown Albuquerque for a “deep cleaning” after it was reported that a library employee had a “rumored potential exposure” to the virus. The library has opened again.
On March 12, City and county officials announced activation of its “Emergency Operations Center and Joint Operations Center” to coordinate the local response to the virus.
On March 15, the City of Albuquerque announced that it would continue essential services while maximizing distance between employees. It has also announced that all BioPark facilities will be closed through April 15.
On March 15, the City of Albuquerque announced the West side Emergency Housing Center will be kept open 24-hours a day until further notice. The center has begun screening and testing people who are using the shelter.
COMMENTARY AND ANALYSIS
The March 16 meeting of the City Council occurred the very day before Attorney General Balderas issued his guidelines. Notwithstanding, the City Council meeting did not comply even remotely with the requirements of a “virtual meeting” even had they tried because the chambers do not have video or telephone conference capabilities.
The Open Meetings Act is clear when it says “All meetings … of a quorum of members of policy making body of any … municipality … are declared to be public meetings open to the public at all times …” There is no “coronavirus” or disease exception, and there is no “declaration of health emergency” exception that would permit the city council to bar the public from a meeting.
The Open Meetings Act is equally clear when it says “No resolution, rule, regulation, ordinance or action of any board, commission, committee or other policy making body shall be valid unless taken or made at a meeting held in accordance with the requirements [the Open Meetings Act].”
It is embarrassing and damn pathetic that not a single member of the Albuquerque City Council, especially Republican City Councilor Don Harris, who is a licensed New Mexico Attorney, did not question the propriety of excluding the public from the March 16 regularly scheduled city council meeting that was publicized and where the agenda was released as required by the Open Meetings Act. Further, the fact that the city council meeting was broadcast on GOV TV and the public could watch the meeting online and email, fax or hand deliver their comments to the councilors before the meeting started does not cut it and does not satisfy the requirements of the Open Meetings Act: that public are allowed to attend attend and listen to the deliberations and proceedings in person.
When City Councilor Diane Gibson asked the question “Keeping the general public out of this meeting and it feels weird just to have us, right?”, it was at worse an admission of guilt and at best an admission against interest. City Councilor Diane Gibson never disappoints being a total embarrassment to her constituents showing some of the highest level of ignorance of any city councilor, especially when it comes to the law.
According to City Council President Pat Davis, while the mayor can issue the proclamation, the City Council has the authority to amend, cancel or extend such an order and Davis boldly proclaimed the ordinance has “some of the most robust check-and-balance structures in city law.” Davis needs to leave the practice of law to licensed attorneys to avoid making a fool of himself. The actions of City Council President Pat Davis, who presided over the meeting and not knowing the council was in violation of the open meeting act, can be fully explained by his well earned reputation for knee jerk reactions based upon news events, his arrogance, and ill-advised actions of not knowing what he is doing.
What is extremely embarrassing, is that Mayor Keller’s appointed City Attorney and the Chief Administrative Officer, both who are licensed New Mexico attorneys, were attendance, sitting at the administration’s table directly in front of the council, and they did not object to the public being prohibited from attending the meeting. City Attorney Esteban Aguilar Jr. went so far to offer his legal opinion to the council and said the council had acted legally and appropriately. Apparently City Attorney Aguilar is not aware of the New Mexico Open meetings act.
Not that it is likely it will happen, but Attorney General Hector Balderas could initiate a criminal prosecution against each of those persons responsible for the violation. In other words, the entire Albuquerque City Council could be charged criminally.
EXPANDING EMERGENCY POWERS OF MAYOR
It is clear that the corona virus is a very infectious disease that is spreading like a wild fire throughput the world, the United States and now New Mexico. Given the magnitude of what is happing with the corona virus, it is understandable that the Albuquerque City Council would like to give the Mayor similar authority as the Governor. However, in time of crisis, cool heads must prevail otherwise it only makes matters worse and mistakes are made in a panic. It was a major mistake for the city council to rush in and enact a city ordinance reflecting a knee jerk reaction to the point that they ignored the “open meetings” act.
The reality is that if and when such a crisis occurs, especially a natural disaster such an earthquake or another pandemic, the Governor would probably issue an executive order declaring a public health emergency. The Governor could also make such a declaration apply only to affected areas. A Governor’s Executive Order would supersede any order by a Mayor under a city ordinance. Further a Mayors Executive order would apply only within city limits.
From a practical standpoint, the most prudent thing for the city council to have done to ensure compliance with Open Meeting Act would have been to postpone the meeting. The urgency of the legislation has been diminished significantly with the the city implementation of actions as well as the Governor’s actions.
The ordinance is in fact void and unenforceable. Mayor Tim Keller would be wise to veto the Emergency Powers measure in an attempt to render moot the fact that the city council violated the Open Meetings Act. But then again, Mayor Tim Keller will probably seek the legal advice of his appointed City Attorney and Chief Administrative Officer who failed to recognize a problem with the city council’s illegal conduct in the first place, and who knows what the hell they will tell him.
To those who are critical of this article and feel that what happened was “no big deal”, what is important to remember is that elected officials are not above the law. The enactment of the Open Meetings Act by the New Mexico legislature was motivated by the belief that the democratic ideal is best served by a well-informed public. Sunshine laws generally require that public business be conducted in full public view, that the actions of public bodies be taken openly, and that the deliberations of public bodies be open to the public.
For a related blog article see:
With respect to the corona virus, government officials urged people to protect themselves by:
Washing their hands frequently with soap and water for at least 20 seconds
When coughing, use a tissue to cover your mouth when coughing or cough into the forearm of your elbow
Cleaning “high-touch” surfaces daily with regular household cleaners
Avoiding the sharing of personal household items and, when sick, staying home rather that going to work or school
Staying home when sick
Avoid large crowds and public events
Older adults and those with chronic illnesses are most at risk to contract the virus that could result in death from complications. Even healthy people not worried about getting sick should take steps to protect themselves and others. The strategy must be to limit the chance of transmitting the disease to persons who are more vulnerable.
On March 15, 2019, the Aging and Long-Term Services Department released a list of resources intended to answer frequently asked questions. According to their list:
If you are unable to leave your home and need prescription medication, call 505-768-2084, if you are in Albuquerque; 1-866-699-4927 if you are outside of Albuquerque; 928-871-6868 if you are on the Navajo Nation; 505-629-8544 if you are in another tribal area or Pueblo.
If you need to access benefits including Medicaid, Medicare or Disability Waiver Services, call the Aging and Disability Resource Center at 1-800-432-2080.
If you are an older adult who is caring for children and in need of resources, call the Aging and Disability Resource Center at 1-800-432-2080.
If you are worried about a loved one in a facility or worried about communicating with him or her, call the Long Term Care Ombudsman at 1-866-451-2901.
If you are in need of a meal, but are not able to get to a senior center or the center is closed, call you local senior center or 1-800-432-2080 with any questions.
If someone you know is experiencing an emotional, mental health or substance abuse crisis, call the New Mexico Crisis and Access Line at 1-855-662-7474.