NMDOJ looking at possible Open Meetings Act violation by City Council

The New Mexico Department of Justice is looking into whether the Albuquerque City Council violated the state’s open meeting law after city councilors met behind closed doors to discuss potential litigation, without specifying to the public what the litigation was. 

City Desk ABQ filed a complaint with the state Department of Justice on Nov. 11, alleging the council violated the state’s Open Meetings Act (OMA) by not specifying what litigation councilors were discussing. 

The state’s Department of Justice on Feb. 4 sent a letter to City Council President Brook Bassan and City Attorney Lauren Keefe, notifying them the department’s Governmental Counsel and Accountability Division received the complaint and is looking into the issue.

During an Oct. 21 City Council meeting, councilors held an executive session to discuss potential litigation. State law allows executive or closed sessions as long as members do not make any final decisions. The session was listed on the agenda as “subject to attorney-client privilege pertaining to threatened or pending litigation.” 

Melanie Majors, the former executive director of the New Mexico Foundation for Open Government, told City Desk ABQ that the council may have violated the Open Meetings Act. Majors said the act requires some specificity about the potential litigation in question. 

While the council never specified the litigation on its agenda, Vince Higgins, a spokesperson for the council, told City Desk ABQ it was “related to the Albuquerque-Bernalillo Air Quality Control Board litigation.” 

Kevin Morrow, the deputy director of council services, in a letter to the Department of Justice said the council did not violate state law because the Open Meetings Act does not require the council to disclose the subject of pending litigation that will be discussed.

“It would not make sense for the public body to disclose whom it may sue in the agenda of a meeting,” Morrow wrote. “Similarly, there are myriad other reasons why disclosing the subject or case to be discussed in a closed session could undermine the body’s position or strategy in such litigation.”

Morrow said the council complied with the Open Meetings Act’s five-step requirement to close an open meeting according to the following: 

• “The Council voted 8-0 with one excusal to enter the executive session;
• At approximately the 5:15 mark of the October 21, 2024, council meeting Vice President Grout moved to enter into an executive session to discuss attorney-client privilege pertaining to threatened or privileged litigation;
• The vote is recorded in a video of the open meeting;
• The minutes reflect the votes of each individual councilor;
• Only the subject of pending or threatened litigation was discussed during the closed session as confirmed by Vice President Grout statement at approximately the 6:55 mark of the video recording of the council meeting, which fulfills the statement required by NMSA 10-15-1(J).”

Editor’s note: Andy Lyman, the editor of City Desk ABQ is a board member for the New Mexico Foundation for Open Government.