A Bernalillo County attorney says legal precedent supports the Board of County Commissioners decision to recently conduct multiple closed meetings as commissioners weighed possible code of conduct violations by the new county treasurer and a former elected official.
Bernalillo County Lead Attorney John Grubesic sent a letter to the New Mexico Department Department of Justice outlining that defense.
Grubesic cited a 1994 New Mexico Court of Appeals case in which the court ruled Luna County commissioners did not violate the state’s Open Meetings Act (OMA) when they met in private to discuss pending litigation, even without a filed case. That Court of Appeals decision cited a New Mexico attorney general’s opinion that “public bodies, no less than private parties to litigation are entitled to effective representation of counsel and this would include the opportunity to confer without disclosing the substance of the discussion.”
The New Mexico Foundation for Open Government (NMFOG) filed a complaint with the NMDOJ in February, alleging County Commission agendas didn’t make it clear what commissioners were discussing or how they justified meeting in private.
OMA states meetings of local government bodies should be open to the public and properly noticed. The act outlines specific exceptions, including “attorney-client privileged communication pertaining to threatened or pending litigation” that would allow a board to meet behind closed doors.
The NMFOG alleged commission agendas weren’t specific enough in describing matters to be discussed, with Legal Director Amanda Lavin saying the item description, indicating commissioners would discuss “restrictions on employment and appointment after leaving office,” didn’t provide enough information for a citizen to know whether the meeting was legal.
The foundation filed the complaint, Lavin said, after reaching out to the county for clarification and not receiving a satisfactory response.
The complaint came after commissioners attempted to plot a course forward regarding County Treasurer Tim Eichenberg’s selection of former County Clerk Linda Stover as his deputy.
Eichenberg hired Stover despite commissioners’ decision in December to keep in place a one-year “cooling-off period” in the county’s code of conduct for former elected officials before they can accept employment or consulting work with the county.
Commissioners last week voted to send a complaint against Stover to the Bernalillo County Code of Conduct Review Board.
Lavin Tuesday told CityDesk ABQ that the case Grubesic cited concerned whether the Luna County Board of County Commissioners could go into closed session to decide whether to sue other parties in a land dispute.
She said the Grubesic left out the remainder of the quoted opinion from the case, which adds, “however, public bodies may invoke the attorney-client privilege to close a meeting only when the public body is faced with an actual or credible threat of litigation.”
Lavin said the county’s response does not appear to clear up the question of whether it properly invoked the attorney-client exception, because it still doesn’t say whether commissioners closed the meetings to discuss an actual or credible threat of litigation, or to discuss any other legal dispute that would justify the closed meetings.
“Their response also does not address how the agenda complies with OMA,” she said. “While the AG’s guide does say that public bodies are entitled to the opportunity to confer with their attorney without disclosing the substance of the discussion, this guidance must be reconciled with the law’s requirement that the county only go into closed session to discuss an actual legal dispute or threatened or pending litigation, and also state ‘with reasonable specificity the subject to be discussed’ in the closed meeting. In my opinion, they have not struck that balance.”
Another case cited by Grubesic, the 1981 matter of an Albuquerque City Council meeting that drew an overflow crowd, concerns reasonable public access to public meetings, Lavin said, and doesn’t have anything to do with the issues in the current complaint against Bernalillo County.