BY MAIRE O’NEILL
maire@losalamosreporter.com
Los Alamos County Council heard criticism Tuesday evening from a handful of community members including former Councilor Antonio Maggiore on the issue of transparency under two agenda items; one where Council was to decide whether or not to set goals for County Manager Steven Lynne in open or closed session and the other on how a Regional Capital Fund containing $2.7 million for surrounding local governments should be administered and spent.
The “discussion of the meeting format for the County Manager’s goal setting” as it was listed in the agenda was placed there by Council Chair Randall Ryti. A closed session had originally been advertised for the goal-setting process but was cancelled when Councilor Sean Williams indicated that he would not attend because he believed it would violate the state Open Meetings Act.
When it was time to discuss the agenda item, the meeting, which began at 6 p.m. and included prior contentious discussion on the Regional Capital Fund issue, had gone on for several hours. In fact, it would probably have been a good idea for everyone involved to continue the item to a future agenda rather than continuing the meeting until after midnight.
Since January, discussions on many agenda items have been tense. Multiple votes have been split 4-3 and regular attendees of Council meetings have indicated to the Los Alamos Reporter that the split noted among Democratic members of the Council is also present in the local Democratic Party and mostly places Councilors David Izraelevitz and Sean Williams in conflict.
After introducing the agenda item in question at Tuesday’s meeting, Chair Ryti asked for public comment and four members of the public spoke. It is worth noting that none of the speakers were told they were limited to the three minutes the public is normally restricted to for public comments and the item was the last on the agenda so It was after midnight before discussion of the item concluded.
Local resident Grant Harding was the first to speak, noting that he wanted to applaud the fact the item was even on the agenda.
“I know a lot of people living in here in Los Alamos thought that when Council made transparency a strategic priority that we would be seeing a whole lot more of this kind of thing. Unfortunately, we’ve seen very little of that. Despite the courage and the votes of certain councilors, we just have not seen this kind of transparency,” Harding said.
He said there have been a number of missed opportunities where very important decisions were made that directly impact lives of people living in the County were made behind closed doors and that there’s really no strong reason for that to be.
“Even small things like the memo earlier this year that Council ultimately voted to waive attorney-client privilege on, that should have been a unanimous vote if Council had been sincere about its commitment to its stated goal of transparency. That passed only by a narrow margin,” Harding said. “Ultimately, the purpose of sunshine laws is to compel government to default to transparency, not to lean on status quo, not to lean on technicalities or precedent in order to avoid transparency.”
He said any representative government without transparency is essentially just a plutocracy and that while Councilors may not aspire to be plutocrats, the effect is exactly the same.
“The loss of the trust in government is exactly the same. The potential and the actuality of the powerful and entrenched power being crystallized further is exactly the same,” he said.
Antonio Maggiore said that during all four years that he served on Council, transparency as a good was e stated transparency as a goal was stated many times that “the bar was so low that we tripped over it”.
“This is another case of that bar being so low that you can trip over it and I am going to tell you, especially those of you that have been on Council for a decade, that if one wants to be really be transparent, the goals of the County Manager should be set in a public session.
“The evaluation of the County Manager – that absolutely should happen behind closed doors because that is what is Council’s responsibility – but the setting of the goals, that is something that you guys should all have the balls, the stones, the ovaries, whatever it takes to pass that in public and in full view of the community so that the community knows that next year, when you guys give the County Manager five stars or an ‘above average’ the County themselves know that standards and what was asked of the County Manager,” Maggiore said. “And I know it’s uncomfortable to put that responsibility on your shoulders, and to say then your decision behind closed doors has to stand up to some sort of public validation, but honestly this is a no-brainer and this is the right call and I implore you, please to set these goals in public. This is the low bar that we missed all four of the years I was on Council. Let’s stop tripping over this and let’s just be transparent.”
Local resident Brandi Engeman said she had reached out to Council when she saw a closed session had been scheduled. She complained that the hiring process for the County Manager was not laid out clearly for the public.
“It was again and again repeated that this is an employee decision and therefore it falls under the protections of the Open Meetings Act. Regardless, it seems to be the prevailing attitude on Council right now that just because you can, you do. I’d like to encourage you to stick to the goals you set in your strategic plan for transparency and just because you can do something behind closed doors, doesn’t mean you have to and it definitely doesn’t mean you should,” Engeman said. “You’re losing the faith of your community and it’s creating a sense that there are members on Council who don’t want to hear from their constituents or who think they know better than their constituents.”
Engeman said local government is the most accessible form of government.
“If constituents don’t feel like they can reach out and be heard without jumping through hoops and making requests through IPRA or whatever it takes to get information that could just as easily been done in full view of us, we start to lose faith,” she said.
White Rock resident Aaron Walker said the goals for County Manager have to be open and transparent.
“He’s our County Manager and the citizens must be aware of what goals are being set for him. Communication and transparency, as others have said, are priorities for the Council. I had an email asking about this item when it was on the agenda for a closed session. Had it been done behind closed doors, it would have been an insult to transparency,” he said. “I’m sure there will be councilors that will argue that it’s a personnel matter. It’s not. These are the goals for the person that is running our County. This isn’t a discussion of actual performance, it’s the setting of goals – it’s not a discussion of how that person is performing. They don’t discuss specific personnel matters and the County deserves to have an input into those goals and we deserve to know how he will be evaluated going into the future.”
Councilor Williams moved that the Council delegate the format for the County Manager’s goals setting as a closed session. The discussion that ensued seemed to reveal that there were two opposing camps; one that believed the actual strategic goals had been set by Council in public last January and that the goal setting for County Manager Steve Lynne being referred to did not involve setting County goals to be followed, but individual, specific goals Steven Lynne as an individual similar to those set privately with immediate supervisors in many government or private sector for individual employees at all levels.
Councilor Williams said the OMA differentiates between personnel policy and personnel matters.
“Personnel policy has to be set in an open session but personnel matters can be handled in closed session. But since after all there’s some hesitancy to refer to what the (Attorney General) says, it’s worth noting that the OMA defines limited personnel matters as discussion of hiring, promotion, demotion, dismissal, assignment or resignation or investigation of complaints,” he said. “It is in fact the AG’s commentary that allows performance appraisal as a valid subject for a closed session. He says, ‘A public body may close a meeting for matters that are closely related to those specifically in the exceptions such as performance appraisals or interviews for job candidates. He goes on to say the exception does not permit a public policy making body to retreat into executive session to discuss personnel policies, procedures, budget items and other issues that do not concern the performance or qualifications of a specific individual.”
Williams said the reason he was saying all that was because that is definitely how he sees the issue.
“If you even just think about why you would make personnel matters an exception to the OMA, it is to protect the reputation of individuals and I do see that as a legitimate reason to close a meeting, but that’s not what we’re talking about here. We’re not talking about evaluating Steve (Lynne). We’re talking about setting the parameters for the policy under which the evaluation will be conducted,” he said. “…If by some chance there were two County Managers, I hope we would hold them to the same standard, and with that in mind, it already tells you that we’re not talking about evaluating some individual. Therefore I cannot see how this can be a limited personnel matter. Then we get back around to what I think started all of this off which is compliance with the OMA falls on individuals so if the decision is made to have a closed session, I will not be there. I will not regard the decision made in closed session as legitimate. That said, I think it’s preferable if we have an open session but regardless I’m not going to go into a closed session on this.”
Councilor David Reagor was brief.
“The County Manager’s goals are County policy. It’s not a personnel matter so it has to be in an open session,” he said.
Councilor David Izraelevitz noted that during his tenure on Council, how the goals were set for the County Manager has never been an issue. He said setting priorities for the County Manager or the County Attorney or similarly when the Public Utilities board has discussions with the Utilities Manager, “all of those have been followed under closed session which I agreed with wholeheartedly”.
“If I could take a moment on the issue of transparency because we keep getting ‘beaten up’ on that we’re not transparent enough. I think if we look at any other local government in New Mexico, we are the most open, transparent local government in my experience and in anyone else’s experience and that was certainly validated by the process we went through in deciding on hiring a County Manager,” Izraelevitz said. “I also feel like we are one of the most responsible local governments so I really take issue with a question like, ‘When did you stop beating your wife or your spouse’, or, ‘When did you stop being so transparent’, I don’t know what the standard expectation is that then crosses the line of not fulfilling our responsibilities as not just policymakers, but direct managers of certain specific members of County government. So that’s a general philosophical statements that I wanted to make.”
Izraelevitz asked how an individual’s goal setting could be disentangled from an individual’s evaluation.
“I don’t have the imagination to do that and I think it’s not fulfilling our responsibility as being direct or clear as to what our expectations of Mr. Lynne are. That would be the expectation that my manager had back when I was at the Laboratory, that we would have a frank discussion. We’re not being transparent enough? We’re not being responsible enough because by forcing a discussion in the open, we will not be fulfilling or responsibilities to have that discussion with Mr. Lynne or Mr. Leaphart and without direct reports,” he said
Council Vice Chair James Robinson said it was kind of a shame that the discussion had to be at such a late hour.
“I feel that this is an opportunity to just set some goals in an open manner. How County Manager Lynne achieves those goals and how we evaluate him on those achievements are for us to discuss and for us to discuss alone. That’s clear. In our procedural rules we say what kinds of goals we’d like him to set –that’s a public document. Him filling in those bullets or after a discussion with us in an open setting not only allows us more than the one hour we normally get in a closed session before voting on an item or action, it allows us more time to discuss his ideas of how he’s going to meet those goals. If there’s anything we want to put to make them more measureable, achievable,” he said.
Robinson noted that he is not opposed to putting the goal setting process in open session in that it allows Council more time to be able to discuss it with Lynne.
“We can have it clear and reported what we’re going to be looking at for his achievements but when it comes time at the end of the year to evaluate him, that evaluation is done in private. I can respect the comparison to LANL performance appraisals but LANL is not a public entity. And like a lot of stuff that goes on out there the public doesn’t have a right to – my performance appraisal information is not open to the public,” Robinson said. “I’m not saying Mr. Lynne’s should be but if we decide to at least make his goal setting public to allow the community to know what we’re measuring our employee with,” he said. It’s just a way of changing how we’re doing things. I don’t think it violates anything because we’re just creating the goals that he hopes to achieve in his tenure for this year. I’m in favor of moving to open session.”
Councilor Sara Scott noted that there had been a fair amount of agreement that the performance part should be conducted in closed session. She said at the end of each year, Council meets in closed session to discuss performance objectives, future performance objectives and career development goals.
“I think we could talk about the goals that the County Manager is going to focus on, but continue to have the performance objectives and the discussion of the performance related to those objectives done in closed session to make sure we can have those frank discussions. I think talking about the goals would give the community transparency into the areas where we’re looking for progress from the broad set of priorities we’ve already established. What I worry about is say we go down this road and even though it doesn’t say that in the motion, I think we say the performance objectives are now a public discussion, what if there is a specific issue that we really need to delve into? How do we decide if that is in closed session only or do we just not do it?” Scott said. “I guess I’m a little concerned as to how this proceeds but I do think we can make it clear that these are the general goals that we’re working towards and that we’re asking the County Manager to work towards without having to have performance objectives specifically that as folks agree that performance in closed session would be metered against. There is a reason that the performance processes are generally conducted in a closed session. I’m a little concerned with a full-on change of that, but trying to think of a way that we could be responsive to the interest in transparency in general areas of where we are looking at focusing in this process.”
Councilor Denise Derkacs, reading from prepared remarks, said she would like to begin with a refresher in Civics.
“We open our County Council meetings with a pledge of allegiance in which we state: “I pledge allegiance to the flag of the United States of America and to the republic for which it stands.” Note the word republic. Our form of government is a republic, or an indirect democracy, in which we elect representatives to act and make decisions on our behalf. As elected officials, we County Councilors make decisions on behalf of the public who elected us, and we are accountable to the public for those decisions,” she said. “The County Manager on the other hand, is not an elected official. Rather, he is appointed by County Council and is accountable directly to the Council and only indirectly to the public.”
Derkacs said the County Charter states that the County Manager “shall execute the vision, strategic goals, and policies established by the Council”.
“Our vision, strategic goals and policies are established each year in open session with input from the public. So indirectly, the public has input into the County Manager’s performance goals and objectives. The specifics of those individual and personalized goals and objectives, however, have in the past, been discussed and finalized in closed session in accordance with County Council procedural rules and as allowed under the Exception for “Limited Personnel Matters” under the New Mexico Open Meetings Act,” she said. “When Council adopted our strategic priority for Enhancing Communication to promote transparency and strengthen trust in County government, I certainly never understood or intended that priority to apply to personnel matters. Based on all of the these factors, I support continuing to follow past Council precedent and current procedural rules to hold all performance-related discussions in closed sessions.”
Chair Ryti said the motion was the format for goal setting so he thought it wasn’t just a nuance.
“I think there has been a discussion about whether those are obvious or not but there’s certainly been clarification as to what they are. At some point, the goals could apply to any set of hypothetical county managers but then there is the specific employee that is working to establish specific performance goals. There could be a discussion of the general goals that the Council would have from the manager, but I still think we would need to have a closed session to get into specific objectives that the County Manager would have,” Ryti said. “I put this on the agenda so I appreciate the public comment…. The question that’s coming out is how much of a goal setting discussion can we have absent the specific discussion of the employee performance?”
A back-and-forth ensued between Councilors about what they each thought should be private and what they each thought should be public. Councilor Izraelevitz said it seemed to him that what was left was the private discussions which turn into personnel actions.
“That’s the difference between the institutional goals which we are developing in open session and individual personnel goals that again, to my view, are private frank discussions that would refer to prior performance that would refer to possible other personnel issues of other members of the administration that we either want to reinforce or whatever. I would be interested in hearing from Councilor Williams or others what more should be public. What more transparency they expect,” Izraelevitz said.
Councilor Williams moved to designate the process for the County Manager’s performance objectives setting and review as closed session. Councilors Ryti, Izraelevitz, Scott and Derkacs voted against the motion, with Councilors Williams, Reagor and Robinson in favor. Before the vote Councilor Williams said it was his hope that his fellow “who do respect transparency will join me in not attending the closed session should this motion pass”.
Councilors Ryti, Izraelevitz, Scott and Derkacs voted against the motion and Councilors Williams, Robinson and Reagor voted in favor.
Councilor Izraelevitz said that as a body Council votes to make certain decisions.
“And we follow the decisions of the Council so whatever the vote happens to be I will follow as my responsibility as a County Councilor,” he said.
When Chair Ryti announced the final public comment on the agenda, Council’s normal three-minute limit was not placed on commenters Aaron Walker, Antonio Maggiore and Grant Harding.
Walker said it’s time for the Council to withdraw its public committal to transparency after this vote “because it’s clear that the council is no longer committed or never was committed to transparency”, adding that “it’s a joke”. He referred to a comment by Councilor Izraelevitz in passing, “When did you stop beating your wife”, calling it “abhorrent and completely unacceptable for any County Councilor to say”.
Maggiore said there were so many points he wanted to rebut that had been made by Council that were “absolutely off base and completely wrong”.
“The inability to differentiate between the goals of the role and the execution of that role is highly problematic. This is starting to highlight an issue that I have been aware of for a long time on Council. If Council is not willing to set the goals in public then they absolutely have to publicize the goals immediately upon setting them and I know for a fact that’s something we don’t do. I’m going to say the citizens in the County have a right to know to what standard we are paying the person who is getting paid a quarter of a million dollars a year. We have a right as citizens to know to what standards and what expectations that job is being held to,” Maggiore said.
He said he had heard Councilor Izraelevitz talk about the areas of focus.
“The bottom line is these areas of focus are the same ones you have talked about in that strategic planning session and you set out your goals. Another thing, citizen input is part of the County Manager’s selection. Whether you guys paid any attention to that that’s not for me to answer, but citizen input – there is the citizen panel that interviews those people as well. Not to mention staff input, which is something that many of us in the community are still fighting to get made public,” Maggiore said. “If you guys aren’t going to be public and transparent about the hiring of your County Manager, let alone the setting of the goals of the County Manager, how are the people in the community supposed to look at you and expect you to act on our goals when you don’t know what those goals are, if you won’t let us voice those goals.”
He said Council should have been setting its goals and expectations for former County Manager Harry Burgess in public because that “would have held all of us on Council to a higher level of accountability in front of our citizens”.
Harding called the vote “yet again an example of a missed opportunity, a shameful mis-opportunity”.
“If it is true that we elect our representatives with the implicit trust that they will just do what is in our best interest, then there is no need for sunshine laws. Why do they even exist? Why is it that the citizenry, regardless of political persuasion, in vast majorities support and vote for these kinds of initiatives to provide oversight from the citizenry onto government,” he said. “Everyone on Council should be asking that question.”
Harding said the ramifications of the vote were going to become very clear very soon.
“This was horribly unfortunate. I’m very sorry and I’m very disappointed in some of you,” he said.