AG: Telephone participation violated OMA
January 07, 2010
New Mexico’s attorney general on Tuesday determined that the Valencia County Commission violated the New Mexico Open Meetings Act during three meetings last summer when three commissioners participated in those meetings by telephone.
The attorney general’s office has ordered the commission to remedy the violations within 15 days from January 5, cautioning the commission that a citizen can file in district court to force the commission to act if the commission fails to act within 15 days.
According to the attorney general’s office, the commission violated the Open Meeting Act (OMA) because it had no valid resolution or ordinance in place that permitted telephonic participation, a requirement in the act.
“Even where telephonic attendance is allowed,” the attorney general’s office writes, “it defeats the purpose of OMA if a large number of the commission members simultaneously opt to participate by telephone in a commission meeting.”
Not only is the commission required to approve a resolution or ordinance allowing telephonic participation in meetings, but they must do so “annually,” according to the attorney general.
The three meetings at which the commissioners’ telephonic participation occurred involved discussion and votes on two contentious issues: the correctional facility gross receipts tax and American Iron and Metal’s proposed metal recycling plant to be built south of Rio Communities.
According to the attorney general, votes taken on issue at those three meetings might be invalid.
“Any action taken by the commission at these meetings may be effective only if the member of the commission attending by telephone was not necessary to make up a quorum of the commission for the particular meeting or cast a deciding vote,” the letter from the attorney general’s office reads.
None of the commissioners who participated in the meetings by telephone did so to make up a quorum. Two of the commissioners participating by telephone cast tie-breaking votes to approve the gross receipts tax and the metal recycling plant, which would make those votes “null and void.”
At the July 1 meeting, the commission voted 3-1 to deny an appellant’s request to delay a public hearing on the appeal of the metal recycling plant’s preliminary approval because he wouldn’t be able to attend. Commissioner Georgia Otero-Kirkham, who participated by telephone, didn’t vote on the issue, recusing herself.
Because there appears to have been no tie-breaking votes by telephone at the meeting, it’s unlikely there will be anything for the commission to remedy.
At the July 8 meeting, the commission required the same appellant — Joe Rizzo — to participate by telephone, which in itself wasn’t a violation of OMA because the act doesn’t extend to citizens’ telephonic participation in meetings.
Rizzo, one of three citizens who filed OMA complaints with the attorney general, claims in his complaint that the commission chairman called an absent commissioner during the meeting to invite her to participate by telephone. The invitation to participate wasn’t a violation of the act, but in its letter the attorney general’s office chastises the commission for that invitation.
“Under no circumstances should a commission member be invited to participate by telephone in a meeting he or she is otherwise unable to attend to ensure a result,” the attorney general’s office writes. “Such allegations, if true, could give rise to claims on other grounds challenging the validity of the commission’s actions.”
At the July 22 meeting, the commission approved the correctional facility gross receipts tax by a 3-2 vote. At that meeting, Holliday cast the tie-breaking vote by telephone. The tax was later forced onto an election ballot by citizens and defeated in November, which means there isn’t a reason to remedy the vote.
At the August 5 meeting, the commission approved the findings of facts and conclusions of law concerning its decision to allow the metal recycling plant to move forward. The vote was 2-1, with Rael casting the tie-breaking vote by telephone. This appears to be the only vote that needs to be remedied by the commission.
Commissioners last night unanimously approved a new Open Meetings Act resolution as a part of its organizational meeting. They are required to approve it each year.
Again this year the commission didn’t include a provision allowing telephonic participation.
Also at the meeting, Commissioner Ron Gentry made passing mention of the attorney general’s determination, but none of the commissioners spoke about it beyond that.
Rizzo was pleased with the attorney general’s decision but was still working to understand its implications.
“I don’t know what this means for the county,” he said.
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