Licensing
The Law
If any meeting is closed pursuant to the exclusions contained in Subsection (H) of this section, the closure: …
(2) If called for when the policymaking body is not in an open meeting, shall not be held until public notice, appropriate under the circumstances, stating the specific provision of the law authorizing the closed meeting and stating with reasonable specificity the subject to be discussed, is given to the members and to the general public.
Commentary
A public body may sometimes need to meet in a special meeting to discuss only a matter that is covered by one of the exceptions defined in Section 10-15-1(H) of the Act. Under those limited circumstances, the public body must give notice of the meeting to its members and to the public in accordance with its policy regarding notice of special meetings or as may be reasonable under the circumstances. Such notice must state the exception to the Act or other legal authority that authorizes the closed meeting and must state the subject to be discussed with reasonable specificity. When noticed properly, these closed meetings may take place without having an open session before or after the meeting.
Example 70:
A county commission’s resolution provides that the chair may call a special meeting on 3 days notice by posting the notice of the meeting at the county courthouse and publishing the notice in the local daily newspaper. The chair discovers that the board must make an immediate decision with respect to the purchase of some land in the county and determines that it is necessary to call a special meeting for that purpose. In addition to the date, time and place of the meeting, the notice states the following in compliance with Section 10-15-1(I)(2):
THIS MEETING IS CALLED TO DISCUSS THE PURCHASE OF LAND AND SHALL BE CLOSED TO THE PUBLIC PURSUANT TO NMSA 1978, SECTION 10-15-1(H)(8).
Commentary
At a closed meeting held outside of an open meeting, topics that are not covered in the notice may not be discussed and no ordinary business, such as the approval of minutes from the last meeting, may be conducted.
Example 71:
A member of a municipality’s governing board is informed at 6:00 p.m. Sunday that the municipality’s police officers have called for a wildcat strike to show their disapproval of the board’s latest salary offer made during a particularly heated collective bargaining session. The strike is planned for Monday morning.
The board’s policy for notice of emergency meetings requires the board president to give 24 hours notice by local radio announcement. The board member who received the information calls the board president who gives two hours notice by radio of an emergency closed meeting to discuss collective bargaining strategy and possible legal actions against the police officers.
Due to the board’s interest in planning for such a strike with its attorney, preserving the peace, and protecting the municipality’s residents from an immediate threat to their security and safety, the two-hour notice is “appropriate under the circumstances.”
Commentary
Although not addressed by the Act, one issue that sometimes comes up is whether it is proper for a public body to permit persons other than its members to be present during a closed meeting. There is no single answer to this question, although generally a public body may include anyone it wants in its executive session. In certain circumstances, however, considerations aside from the Act may affect the permissibility of allowing non-members to be present. For example, when a public body holds a closed session pursuant to Section 10-15- 1(H)(3) of the Act to deliberate after an administrative adjudicatory proceeding, it probably should exclude other persons (except, perhaps, its attorney) from the closed session. Otherwise, it may give at least the appearance that the public body is improperly and unfairly receiving additional information about the matter before it without the participation of one or more of the parties to the proceeding.
A public body also should use caution when it permits persons other than the body’s members and its attorney to attend a meeting that is closed under the litigation exception in Section 10-15-1(H)(7) of the Act. That exception expressly applies to meetings “subject to the attorney-client privilege,” so the public body should consult with its attorney to ensure that the presence of other persons during the closed session will not affect the privilege and, in turn, make the use of the litigation exception improper.
Example 72:
At a teacher disciplinary hearing held by a school board, the superintendent testifies concerning the events resulting in the proceeding. Although the superintendent usually serves as recording secretary for the board, she may not be present during the board’s deliberations after the hearing. Because the board may not hear additional evidence after the close of the hearing, the presence of the superintendent, a witness in the hearing, during the closed session could be viewed as an unfair influence on the board’s discussion and decision concerning the teacher.
Example 73:
During its regular meeting, a county commission goes into executive session to discuss the purchase of land. It permits members of the public attending the meeting to remain during the closed session except those people the commission knows are vehemently opposed to the purchase. This is not proper since the commission is using the executive session to unreasonably exclude only certain members of the public from what would otherwise be a public meeting.
Example 74:
A state board holds a closed meeting to discuss competitive sealed proposals it has received in response to a request for proposals made according to the Procurement Code. During its closed discussion, the board may permit each proposer to come before the board one at a time and answer questions concerning its proposal.