BY MAIRE O’NEILL
Anyone who has attended Los Alamos County Council meetings during the last six months may have observed an underlying current of tension in addition to a divided voting pattern (4-3, 5-2) on several larger issues recently facing Council.
Another issue on which Council seems to be divided and which has been discussed at two recent meetings is how Council wants the Open Meetings Act (OMA) to apply to ad hoc committees or task forces it charters. Acting County Manager Steve Lynne has indicated that Council has a practice and policy when they create these entities of wanting them to follow the OMA but that some of the language in the individual chartering actions varies from time to time. He asked Council for some direction and suggested bring amended charters back to Council that explicitly state the requirement for the task forces to follow the OMA instead of just including some of the elements of the OMA.
Council Vice Chair James Robinson agreed at the June 15 Council work session that the OMA conversation needed to be had. He also noted that some of the sub-quorum committees Councilors sit on might qualify as task forces.
“So not just looking at chartered bodies of citizens, but we might want to look at some of our own things that we participate in such as the COVID subcommittee. It’s not a chartered committee but it’s one where three councilors discuss the COVID pandemic,” Robinson said.
He added that he thought developing a hierarchy might help.
“What’s the difference between what they (the task forces) do and what we do? Where do we draw the line of the OMA being a requirement of this board? If the goal is openness and transparency in government, do we want to include it in all of the business we do, or do we want to make a gradation of when the OMA would apply based on certain standards?” Robinson said.
Councilor Denise Derkacs thought a matrix might be helpful. She noted there’s a distinction between an informal committee and a chartered task force or the boards and commissions. She said the task forces were formed to come up with recommendations on forming public policy and that she would like to hear and the public should hear what legal counsel had to say on the issue.
County Attorney Alvin Leaphart said his office interprets the Open Meetings Act is to look at the act itself and cases law.
“I think it would help Council to understand that the Open Meetings Act has been around in its modern form for more than 30 years and there are 15 times the Supreme Court of the Court of Appeals has addressed this issue. So there’s a sparsity of binding legal precedent that looks to interpret this act,” he said.
He noted that the Attorney General’s guide to the OMA has a lot of commentary in it.
“At the very beginning of the guide it says most of the points discussed in here have not been subject to judicial review and really only constitute the opinion of the Attorney General. They’re not law and the Attorney General’s office has a hard job to do and a lot of the distinctions in their commentary are not found in the law,” Leaphart said.
He noted that there is a distinction between a fact-finding body and a policy-making body and that there is no reference to a fact-finding body in the actual OMA.
“There’s a lot of specific cases where the Attorney General has been asked about specific factual circumstances and given an opinion. None of those facts were our facts and we don’t start with the AG’s guidance because it’s simply guidance. It not persuasive legal authority and will not often be entertained by a court,” he said. “So we look at the act and we interpret it just like it says. If you read it, it talks about any public body. It doesn’t talk about any policy-making body, it talks about a public body. Any public body that is forming public policy or conducts its business by vote, should not be closed to the public.”
Leaphart said it would make sense that a body that’s created by a public body would be a public body.
“So we are reading the black letter of the law and trying to apply it in a way that’s reasonable. We understand that there are exceptions – that if a public body asks a sub-quorum of its members to do some homework and come back and report on it, that’s probably okay. But this chartering of this body – if you look at the way you charter these things, you keep them on a relatively short leash. They have to come back and report to you at certain times, they have elected officials assigned to them, they have staff liaisons assigned to them and they have a work product to deliver,” Leaphart said. “We understand that there are attorney generals’ opinions out there that say things like if you have a little subcommittee that wants to draft resolutions and bring them back for consideration, that’s fine, that little group is not subject to the Open Meetings Act. But when you get into this formality of chartering bodies and really laying some obligations on them to do things, they come back and they make recommendations to the Council, it’s hard for our office to recommend that those meetings shouldn’t be open to the public.”
He added that it’s also really hard for his office to advise not just narrowly interpreted technically aspects of the law but to recommend to the Council that they don’t make it explicit that these meetings are subject to the Open Meetings Act because regardless of whether Council says they’re not subject to the Act, they may still be subject to it.
“That’s a judicial decision that will be made. I don’t want to frighten anybody but if you look at the OMA – I’ve never actually heard of this happening in New Mexico – it’s a misdemeanor offence for the participants in the meeting, not for the County. We tried to make recommendations to Council in regard to the OMA that are mindful of the liberty interest of our volunteer members who serve on these boards. We don’t want to put them in a position – we would rather err on the side of caution and recommend that these boards be subject to the OMA so there isn’t any question, and these members that serve on these boards, don’t have to face any questions about that individually as to whether they participated in a meeting that violated the OMA,” Leaphart said.
He noted that there could be real consequences of conducting these meetings behind closed doors for people on the boards and the County.
“So our general interpretation is reading that black letter law, and not taking the Attorney General’s opinion as anything else but an opinion of an attorney, that the right course of action for the County would be to require most of its task forces, especially the ones it formalizes to a charter – If it goes to a charter – if they can’t make recommendations to Council without the approval of the quorum – they’re conducting their business by vote and the black letter of the law seems to say that if you create a public body that conducts its business by vote, it’s hard to argue those meetings should not be accessible to the public and are subject to the OMA,” Leaphart said.
He said his office is not saying that should Council not require some of the advisory bodies to follow the OMA, that a court may not find in the County’s favor.
“We would certainly raise that if that issue arose – that these bodies are purely advisory with no binding authority. But we’re not in any way certain and are highly skeptical that when that argument is presented to a judge who actually has authority to interpret the law, that it would carry the day. So based on that uncertainty, we are pretty conservative in recommending the excluding of meetings of bodies specifically created by the County Council from having the public participate or having them do things in private,” Leaphart told Council. “If you’re going to do that – don’t charter these entities. Simply recognize that they have interesting things to say, that they are stakeholders in the community.”
Councilor Sara Scott felt the Council should make a policy decision on what makes sense and that it was on Council to develop a policy on what its expectations are going forward.
Councilor David Izraelevitz aid the first way for Councilors to get input is to go around and talk to people, come back with their own decisions and then vote.
“Fundamentally, everything is a recommendation until we’re here at an open meeting and we take a vote.” he said. “So, one approach is to get recommendations.”
He said the second way is a Council subcommittee
“I’m being a little flippant here, but the reason for a Council subcommittee is to avoid the Open Meetings Act…. The subcommittee would come back to the full Council,” Izraelevitz said.
He noted that Council can also use a technical advisory committee where “we’re not interested what the citizens think, we’re interested in what the experts think”.
“For example we decide we’re going to build another bridge across Los Alamos Canyon, we’re not going to look in Open Forum and we’re not going to ask random people how big should the bridge be. I can see that not being an OMA issue. We may want to do it because we want people to know what the engineers say or the architects say but it’s not because the public is really going to have a role in making the decision,” Izraelevitz said.
He noted that the last one is a citizen committee. He said aside from whether or not those fall under the OMA, if Council finds seven people to be on the citizen committee, he is not just interested in those seven people’s opinion.
“I’m interested in the 7,000 people’s opinion and I hope that those 7,000 will talk to 1,000 people each and collect that data and come back to us because I want some assurance that the recommendation from the citizen committee is not like an expert advisory committee. I don’t necessarily expect those citizens to represent the will of the public. I expect them to be people who are interested, may know a lot of people, who have the time. And if we want to know what citizens in general want to know, we have to make it open for citizens to come in and say, no, I disagree with you or I’d like to make a comment,” Izraelevitz said.
He said if it’s not an open meeting, then there won’t be minutes and Council will not know how things were voted on. He said he wants if Council puts together a body that it be subject to OMA because it seems fundamental if Council wants general citizen input it should be an open meeting.
Councilor Robinson felt Council should also look at meetings such as the Council’s rules committee and the monthly meeting of representatives of Council, the Los Alamos Public Schools Board and UNM-LA to see if they should be open to the public. He felt there was a need to look at meetings in the County as a whole.
It became clear that different councilors have different opinions on how the OMA applies to or should apply to task forces and committees.
Councilor Williams, who was not present at the June 15 meeting when County Attorney Leaphart spoke to the issue, addressed a case, NM State Investment Council v Weinstein (2016). He read the court findings as follows: “We agree with a 1990 Advisory Opinion by the then-Attorney General that ‘it is the nature of the act performed by the committee, not its makeup or proximity to the final decision, which determines whether an advisory committee is subject to open meeting statutes.’ The current Attorney General’s Compliance Guide echoes this thinking, stating, ‘even a non-statutory committee appointed by a public body may constitute a ‘policy-making body’ subject to the [OMA] if it makes any decisions on behalf of, formulates recommendations that are binding in any legal or practical way on, or otherwise establishes policy for the public body. A public body may not evade its obligations under the [OMA] by delegating its responsibilities for making decisions and taking final action to a committee.”
Williams said, “keeping in mind that the court do seem to care what the attorney general has to say, the Compliance Guide is organized as sections of law with the AG’s commentary and then examples of application. One of the examples is very similar to what we have talked about with our task forces”. He went on to read from the Guide:
“A state board appoints a committee composed of two board members (less than a quorum of the board) and several members of the public to draft proposed regulations in accordance with the board’s instructions regarding the substance of the regulations. The board will review the proposed regulations, make all final decisions regarding the text of the regulations and determine whether to hold a public hearing on them. Provided the committee is not statutorily created and charged with drafting regulations for the board, meetings of the committee to draft the regulations will not be subject to the Act.”
Williams said he doesn’t see where the task forces are in themselves subject to the OMA.
“Los Alamos County can always be more strict than the state of New Mexico. So the question is, is it the policy of Los Alamos County that the advisory committees are subject to the burdens of the OMA, which again go way beyond just having to carry on meetings in the open?” he said. “My view is if it is to be the policy of Los Alamos County that advisory bodies are subject to the advisements of the OMA – and I want that to be a consistent policy – I want that to apply just as strongly to Council subcommittees, to the leadership meetings, to the joint County Council/School Board meetings. Frankly I want it to apply to the LACDC and the MainStreet Futures Committee.”
County Council has several sub-quorum committees of three Councilors that address matters such as federal policy, rules for Council, and a weekly “leadership” meeting which is attended by the Council Chair, Vice Chair and one other Councilor which changes from week to week. Councilors have also held sub-quorum meetings as earlier indicated by Councilor Izraelevitz to avoid placing an item on the agenda. One instance that comes to mind from last year is when Councilors reportedly met in small groups with Department of Energy staff to be briefed on proposed venting of tritium at Los Alamos National Laboratory to avoid placing the issue on the Council agenda.
Councilor Williams said if Council was considering an open meetings policy it should be a universal policy.
“It should not be the policy of Los Alamos County that the sun shines only on the public and not on the government itself. With that in mind and my feeling that this should not be acted upon until after the applicability of OMA to Council committees and other groups has been conducted, I move that we table this item until the July 13 meeting so that we can have that discussion first,” he said.
Council voted 4-3 not to table the amendments to the charters. Councilor Williams commented attempted to discuss the issue further but was interrupted with a point of information from Councilor Izraelevitz alleging that Council was digressing from the current agenda and that the OMA was going to be discussed as a future agenda items. Chair Ryti said he believed Williams just wanted to comment on the process so he’s commenting on the item on the agenda.
Councilor Scott weighed in saying she thought having a sort of template going forward is a good idea.
“For me the intent, and clearly not for everyone, was that we would for these types of task forces comply with the Open Meetings Act like we do for our Boards and Commissions, which are again allowed to share information between meetings, allowed to have subcommittees between meetings, and sub-quorums of committees and all of those kinds of things. These are taxpayer supported efforts, supported by staff, supported by County resources and I think having them comply with the same kind of requirements for openness, advertising and quorum versus sub-quorum discussions, both for the good of the public and the task forces themselves, is something I do support,” Scott said.
Williams went on to say that the distinction the Attorney General draws is between statutory and non-statutory committees which are charters.
“As for the broader issue, I would support a policy of openness applied equally, but my concern with this is that there are many advisory committees that are not currently subject to the Open Meetings Act and I do oppose laying the hammer solely on the public,” Williams said.
He also said the Attorney General’s opinion is it’s the nature of the act that the board transacts that really determines who is and is not subject to OMA. He said being a subcommittee doesn’t exempt one from being subject to the OMA, that it’s just that a subcommittee “doesn’t inherit the OMA requirements of the main body and because it’s an advisory body”.
“The issue for me is we’re going to allow some advisory committees such as the rules committee to convene behind closed doors but not others. What’s really perverse about this action to me is that, this is shining light on the public. The intent of transparency law is to shine light on the government, so what we’re talking about here with task forces, that honestly don’t have any power,” Williams said.
Councilor Izraelevitz, again interrupted.
“If we’re going to have discussion then I would like to have extensive comment in response to Councilor Williams, but if we’re going to stick to the issue of the motion, then I don’t want to have what is at this point a one-sided presentation unless Councilor Williams can tie it to this current specific motion. I think we’re really digressing from the current agenda,” he said.
Chair Ryti noted that he thought other Councilors got the point Williams was trying to make. Williams said he was simply responding to other Councilors’ comments.
And the discussion on the OMA appears to be far from over with the issue expected to be back on the agenda Aug. 24.