Public Meetings Subject to the Act

The Law

All meetings of a quorum of members of any board, commission, administrative adjudicatory body or other policymaking body of any state agency, any agency or authority of any county, municipality, district or any political subdivision, held for the purpose of formulating public policy, including the development of personnel policy, rules, regulations or ordinances, discussing public business or for the purpose of taking any action within the authority of or the delegated authority of any board, commission or other policymaking body are declared to be public meetings open to the public at all times, except as otherwise provided in the constitution of New Mexico or the Open Meetings Act. No public meeting once convened that is otherwise required to be open pursuant to the Open Meetings Act shall be closed or dissolved into small groups or committees for the purpose of permitting the closing of the meeting.

Commentary
This Subsection defines those meetings that are required to be open to the public, unless otherwise excepted from this requirement by the Constitution or another provision of the Act or an express and unavoidable conflict with more specific language in another law. The provisions of the Act apply to any meeting of a quorum of a policymaking public body held for the purpose of:

(a) formulating public policy;
(b) discussing public business; or
(c) taking any action that the body has authority to take.

1.  Rolling Quorums

The Act’s requirement for open, public meetings applies to any discussion of public business among a quorum of a public body’s members. Usually, a quorum of a public body’s members meets together to discuss public business or take action. However, a quorum may exist for purposes of the Act even when the members are not physically present together at the same time and place. For example, if three members of a five member board discuss public business in a series of telephone or email conversations, the discussion is a meeting of a quorum. This is sometimes referred to as a “rolling” or “walking” quorum. The use of a rolling quorum to discuss public business or take action violates the Act because it constitutes a meeting of a quorum of the public body’s members outside of a properly noticed, public meeting. 

Example 4:
Mr. Green and Ms. Thomas, two members of the five-member board of directors for the ZZZ Domestic Mutual Water Users Association (a public body established under the Sanitary Projects Act), have a telephone conversation during which they decide that the board should discharge the Association’s executive director. Mr. Green writes a letter to the director terminating her employment, signs the letter and passes it on to Ms. Thomas. Ms. Thomas signs the letter and delivers it to a third board member, who signs it and delivers it to a  fourth board member for his signature. The fifth board member does not participate in the termination action. 

The board’s action violates the Act. The letter discharging the executive director and signed by four of the board members amounts to action by a quorum of the board outside of a properly noticed and conducted public meeting. It makes no difference for purposes of the Act that the four members who made up the quorum were not together in the same place when they discussed and signed the letter.

Example 5:
Mr. Jones and Mr. Smith both serve on a board of county commissioners and constitute a quorum of that board. Jones and Smith are also in the same business and frequently run into each other in the course of a business day. Moreover, they are friends and see each other at various social functions. The Act is not intended to alter the business or social relationships of these men so long as they are not meeting in their capacity as county commissioners for the purpose of conducting public business. Should public business arise in such business or social settings, the two men should avoid discussing the matter between themselves. Rather, the matter should be raised, discussed and decided in an open meeting of the board.

2.  Policymaking Bodies

a. Administrative Adjudicatory Bodies

The Act  broadly covers  every   kind  of public    body    that    can    be     characterized as “policymaking,”  including those that perform administrative adjudicatory functions. Administrative adjudicatory functions generally include holding trial-type hearings to consider facts and reaching conclusions regarding individual legal rights, duties or privileges.

b. Committees

The Act specifically refers only to meetings of a quorum of the members of a public body. Meetings of a committee of a public body that is composed of less than a quorum of the members or of non-members of the public body may not be subject to the provisions of the Act if the committee engages solely in fact-finding, simply executes the policy decisions or final actions of the public body and does not otherwise act as a policymaking body.

A committee established for fact-finding purposes by a board or commission should be distinguished from committees created by statute performing the same functions. A committee created by statute is a public body subject to the Open Meetings Act because the legislature considered the committee’s functions important enough to provide it with a separate existence as a public body, and because the committee is not simply created by a public body as a means to carry out that body’s business.

In some situations, even a non-statutory committee appointed by a public body may constitute a “policymaking body” subject to the Act 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 Act by delegating its responsibilities for making decisions and taking final action to a committee. This is true even when the public body delegates its authority for holding a meeting or hearing to a single individual. If a hearing would be subject to the Act if convened by the public body, the hearing cannot be closed simply because the public body appoints a single hearing officer to hold the hearing in its place.

Excepted from this rule are hearing officers specifically authorized by statute. In those situations, the legislature has placed responsibility for holding a hearing with either the public body or the hearing officer, and the hearing officer’s authority to hold a hearing is not based solely on delegation by the public body. Because, under these circumstances, the hearing officer acts under separate authority rather than as a replacement for the public body and because such a statutory hearing officer is not itself a public body, a hearing held by the hearing officer would not be subject to the Act. However, provisions of law other than the Open Meetings Act may apply and require the proceedings to be open. For example, all hearings under the Uniform Licensing Act, including those conducted by a hearing officer, must be open to the public. See NMSA 1978, Section 61-1-7.

Of course, where the chief policymaking official of an agency is a single individual, the Act does not apply because the official is not a public body, complete decision making authority is vested solely in the official, and no deliberation or vote is necessary for effective action.

Example 6:
The governor, the superintendent of insurance and the chief of the state police get together to discuss issues about which the three are concerned. These persons, although public officials, do not constitute a “public body” and, therefore, their meeting is not subject to the provisions of the Act.

Example 7:
The parents in a school district have been asked by the superintendent to form a group to study the district’s athletic programs and make recommendations to the school board. The group’s recommendations are not binding on the board. Because they act solely in an advisory capacity, and have no authority to make decisions on behalf of the board, the parents do not constitute a policymaking body of the school district and their meetings are not subject to the provisions of the Act.

Example 8:
Three members of an eight-member state licensing board are appointed by the chairman as a committee to decide on a final budget.  The committee is not given specific budgetary instructions by the board and the committee members use their discretion regarding the specific allocations in the budget. Since the committee independently develops a budget for the board, the budget discussions conducted and decisions made by the committee are meetings of a policymaking body subject to the Act’s requirements.

Example 9:
The Public Regulation Commission is a full- time salaried commission regularly engaged in the conduct of public business, i.e., utility rate regulation. Because the Commission is authorized to take final action and formulate policy, any meeting of a quorum of the members at which public business is discussed, even where no action is taken or policy actually formulated, is subject to the provisions of the Act.

Example 10:
A private non-profit health services corporation receives state and federal funding for its program. Unless a specific contractual provision or a statutory mandate independent of the Act imposes the duty of open meetings, a meeting of a quorum of the board of directors of the corporation is not subject to the provisions of the Act because the board of directors is not a board of the state, county, district or other political subdivision.

Example 11:
A cabinet secretary regularly meets with his key staff on Monday mornings to go over department affairs. From time to time, he may also invite interested legislators and persons from the private sector to advise him and his staff on particular matters. The decision- making authority of the department is nevertheless vested in the secretary, and the assembled Monday group, although influential, remains advisory. These meetings, therefore, are not subject to the Act.

Example 12:
A board of county commissioners is specifically required by statute to issue a particular order upon the occurrence of certain conditions. The duty to issue the order is purely ministerial; i.e., the board may not exercise any discretion or independent judgment. No decision or deliberation of the board is necessary or permitted. The board, at a meeting properly convened according to the Act, may authorize one member or an administrator to issue the order when the requisite conditions occur, and the official action may be taken without a subsequent meeting that would otherwise be subject to the Act.

Example 13:
Pursuant to its constitution, the board of regents of a state university delegates its policymaking authority to decide post- graduate curricula to the faculty senate of the respective post-graduate departments. Meetings of the faculty senate for the purpose of exercising that authority are subject to the Act.

Example 14:
A five-member city council creates an “advisory committee” composed of two city council members and other city officials to evaluate bidders on city contracts and to recommend a limited number of the bidders to the city council for final selection. By delegating authority to the committee to narrow the choices of potential contractors for the council’s consideration, the city council vests the committee with decision-making authority and subjects its meetings to the Act’s requirements.

Example 15:
A state commission establishes a search committee composed of experts in the field regulated by the commission to review and evaluate applications for positions on the commission’s staff. A provision in the commission’s by-laws provides that the search committee’s final recommendation on whom to hire is binding on the commission unless the commission receives reliable information from an independent source affecting the finalist’s qualifications. Because the commission has delegated virtually all of its decision-making authority to the search committee, the committee’s meetings are subject to the Act.

If the search committee’s recommendations were not expressly binding on the commission, but the commission routinely adopted the committee’s final recommendation without reviewing the other applicants, the committee’s meetings still would be subject to the Act. Although not required to by any express provision, the commission, as a matter of practice, would be delegating to the committee its authority to select employees.

Example 16:
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.

Example 17:
Pursuant to statute, two incorporated villages establish an intercommunity water supply association empowered to provide a supply of water to the villages’ inhabitants. The villages are the association’s only members and each village appoints three persons to serve at its pleasure as commissioners of the association. To fulfill its duties, the association is granted certain government powers, including the power of eminent domain. Because it is formed by public bodies and is authorized to perform certain functions on behalf of those bodies, the association also is a public body subject to the Act.