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When can elected officials close a meeting in New Mexico? Hannah Grover, hgrover@daily-times.com

Aztec City Commission may have also violated the Open Meetings Act in January when discussing a contract for trash service

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FARMINGTON — The New Mexico Foundation for Open Government has asked the state attorney general to ensure the Aztec City Commission’s decision to contract with Unsicker Law Firm is nullified.

This request came after the City Commission went into closed meeting in alleged violation of the New Mexico Open Meetings Act.

Steve Murphy, an attorney whose law firm was not awarded the contract, brought the violation to light in a letter sent to the city and provided to The Daily Times last week. Murphy’s complaint led the city to consult with outside legal counsel.

Aztec City Manager Steve Mueller said the city has forwarded the copy of the NMFOG's letter that it received on Sept. 23 to the outside legal counsel.

"We're not trying to violate the law or the Open Meetings Act," said City Manager Steve Mueller when reached by phone.

MORE: Did Aztec City Commission violate the Open Meetings Act and state procurement code?

He said the city tries to follow the Open Meetings Act the best that it can. 

"If we do make a mistake, we'll own up to it," he said, adding that the city will take the necessary to remedy the mistake if it learns that the City Commission did violate the Open Meetings Act.

NMFOG Executive Director Melanie Majors said she likes to believe that violations of the Open Meetings Act are due to not understanding the law, however she said the Attorney General’s Office can press charges that result in a $500 fine, per offense.

In the case of Aztec’s Sept. 10 meeting, Majors said NMFOG believes there were two violations of the Open Meetings Act.

City Commission agenda cites sole source procurement

The violation that Murphy alleged in his letter — which was also received by the New Mexico Attorney General’s Office — was based on the reason given on the agenda for the closed session.

The agenda cited sole source procurement as the reason for closing the meeting. The Open Meetings Act allows a meeting to be closed to discuss a purchase or contract of more than $2,500 when there is only a single applicant or source for the product or service. There were three law firms that responded to the city’s request for proposal.

Majors agreed with Murphy that the meeting could not be closed under the sole source procurement exception because there were three offers rather than a sole source.

“The Open Meetings Act is quite clear about the reasons that a meeting can be closed,” Majors said.

She said the reason must be specific and it has to be one of the exceptions outlined in the Open Meetings Act.

2018: Councilor speaks out after breach of parliamentary procedure

Agenda did not include an action item

The second alleged violation came when the City Commission left closed session and voted 3 to 1 in favor of awarding the contract to Unsicker Law Firm. The agenda did not include an action item for awarding the contract. The only item on the agenda after the closed session was adjournment.

“The Open Meetings Act was enacted for the benefit of all New Mexicans to ensure that the policies, records, votes, actions and deliberations be open to the public,” Majors stated in the letter to the attorney general. “Any attempt to engage in a public decision-making process without including the public as outlined in the state’s guidelines is a violation of the law and just as important, the public’s trust. It’s basically a question of accountability and being transparent.”

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January meeting may also have been wrongfully closed

A review of the meeting minutes starting in January showed one other incident when the City Commission met in closed session citing sole source procurement when there were multiple qualified responses to the request for proposals.

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The City Commission had a special closed meeting on Jan. 16 to discuss contracts for municipal solid waste. During the next meeting on Jan. 22, City Finance Director Kathy Lamb said that there were two companies that submitted proposals to provide trash service to Aztec after the city issued a request for proposals. She said the reason for the closed meeting was to provide the City Commission with details that could not be released publicly until after the contract was awarded.

When asked by The Daily Times about the Jan. 16 meeting, Majors said it appears that the meeting was wrongfully closed.

"To hold a closed meeting, the item must be listed on the agenda with enough specificity so the public knows what is being discussed," Majors said in an email. "There are only 10 exceptions and to discuss information not ready for release to the public is not one of them. It is the public's money that was under discussion, as such, it should be in public."

Hannah Grover covers government for The Daily Times. She can be reached at 505-564-4652 or via email at hgrover@daily-times.com.

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