judge damon j. keith nmfog.org. in recognition of the fact that a representative government is...

Democracies die behind closed doors.

Judge Damon J. Keith

nmfog.org

Open Meetings Act 10-15

In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.

Core Principles

No secret meetings.

No secret votes.Action items must be on your agenda.

Action must be taken in open session.

Basic Steps

1. Adopt your OMA resolution, annually.2. Decide to hold a meeting.3. Provide public notice.4. Issue final agenda no later than 24

hours prior.5. Hold the meeting.

a. Let anyone attend.b. Follow procedures to close, if necessary.c. Take action only on agenda items.

6. Produce draft minutes within 10 days.7. Approve minutes at your next meeting.

Your OMA Resolution

Must be adopted annually, in a public meeting

Determines “what notice for a public meeting is reasonable when applied to that body.”

Becomes binding upon adoption If you already know when your regular

meetings will be, you may include that information in the resolution to provide maximum advance notice.

Basic Steps





Will it be a “meeting”?

YES, if a quorum is…

Formulating policy

ORDiscussing

public business

ORTaking action

A Meeting By Any Other Name

Whatever you call it …

Work session Retreat Pre-meeting Brainstorming session Study session

…it’s still a meeting! You must follow OMA.

But What If…?

We’re at the same social function?

But What If…?

We’re at the same social function? Don’t talk business! It’s okay for a quorum

to be in the same place, but you must not formulate policy, discuss public business or take action. (Unless you’re prepared to comply with OMA requirements.)

Some boards provide notice that a quorum of the board is planning to attend a function, but will not be discussing any public business.

But What If…?

We’re at the same social function? Don’t talk business! It’s okay for a quorum

to be in the same place, but you must not formulate policy, discuss public business or take action. (Unless you’re prepared to comply with OMA requirements.)

Some boards provide notice that a quorum of the board is planning to attend a function, but will not be discussing any public business.

Tip! Be sensitive to appearances. If you’re huddled in a corner together, people will assume the worst.

But What If…?

We need to schedule a meeting? We need to put together the agenda?

But What If…?


Rely on your staff. Administrators should be responsible for communicating with Board members to schedule special or emergency meetings and to assemble the agenda.

Individual Board members may communicate with staff, and staff may send information out to all Board members. The OMA targets discussions among a quorum of the Board.

But What If…?


TIP! Beware of “reply all” when using e-mail. A discussion over e-mail is still a discussion.

OMA = Discussions Along the Circle

1

2

3

45

6

7

STAFF

ParentsStudentsTeachers

NeighborsSports Fans

Community LeadersNon-Profits

PEDLegislators

But What If…?

We’re traveling together or attending a conference?

But What If…?

We’re traveling together or attending a conference? Don’t talk business! It’s the same as a

social setting.

If you will be discussing your school’s business among a quorum, follow OMA. When in doubt, just follow it!

Receiving information doesn’t trigger the law, but discussion among a quorum does.

But What If…?

We need to discuss sensitive issues?

But What If…?

We need to discuss sensitive issues? There are provisions for that in OMA. Closed

meetings of sensitive topics must still be noticed to the public. No secret meetings!

Basic Steps





Public Notice

Meetings shall be held only after “reasonable notice” to the public Your annual OMA resolution defines what

is reasonable for your board

AG Guidance:•Regular meeting10

days

•Special meeting3 days

•Emergency meeting24

hours

What’s In a Notice?

Your notice must include:1. Date, time and place of the meeting2. An agenda, or information on how the

public may obtain a copy of the agenda

Your notice must be delivered to:3. Location(s) accessible to the public

List these in your OMA resolution

4. Any broadcast station or newspaper that has provided a written request for notice

Special Case!

Notice of Public Hearings In some situations, a formal public hearing will

be required. The requirements go above and beyond regular OMA rules. Notice of public hearings generally must be published in a newspaper via legal notice. NMSA 14-11 has procedures for legal notices.

Various state laws govern when a public hearing is required. Check with your attorney!

Common Notice Violations

Holding a discussion via phone or e-mail. “rolling quorum”

Posting notice behind closed doors.

Posting notice after the deadline.

Basic Steps





Available to public 24 hours in advance

Need to take action? Make sure it’s on the agenda in specific terms

On-the-fly additions should be short, informational (avoid discussion)

Final Agenda

Common Agenda Violations

Non-specific items!

Adding last-minute “emergency” items.

Taking action on either of the above.

Basic Steps

1. Adopt your OMA resolution, annually.2. Decide to hold a meeting.3. Provide public notice.4. Issue final agenda no later than 24 hours

prior.5. Hold the meeting.



Public Meeting Means Everyone

School employees have the same right to attend as anyone else

You must make reasonable efforts to accommodate audio & video recording

Consider whether the room will accommodate all people who want to attend, and whether they will be able to hear.

Don’t start early!

Closing Your Meeting: Why

Theory = some discussions would harm the public interest if held in the open

The legislature has identified 10 topics where this is the case

You are not authorized to add an 11th

Topics for Executive Session

Limited personnel matters

YES

•Hiring, promotion, demotion of an individual employee•Dismissal, assignment, resignation of an individual employee•Consideration of complaints/charges against an individual employee

NO

•Overall pay raises/cuts•Changes to employee benefits generally•Department restructuring•Removal/selection of a Board Member


Discussions regarding issuance, suspension, renewal or revocation of a license.

Deliberations in connection with a trial-type legal hearing

Discussion of personally identifiable student information

Meetings for preliminary collective-bargaining strategy and bargaining sessions with union representatives

Sole-source purchases over $2,500, and discussion of competitive sealed proposals


attorney-client privileged discussions pertaining to threatened or pending litigation

YES

•Receiving or soliciting advice from your attorney when there is a pending lawsuit or an actual, credible threat of one.

NO

•Discussing a controversy that may result in litigation•Receiving advice from your attorney on non-litigation matters•Discussing litigation among yourselves (no attorney present)


Discussion of purchase, acquisition or disposal of real property or water rights

YES

•Buying land for a playground•Leasing water rights

NO

•Buying playground equipment•Leasing copiers

10 Exemptions. One Takeaway.

Executive session is for discussion only. Final action must be taken in public.No secret votes!

Closing Your Meeting: How

1. Say what you’re going to discuss.2. Discuss it.3. Say what you discussed.

1. Say what you’re going to discuss.

Always tell the public:A. The exemption in OMA that allows

closure, ANDB. The specific subject of your discussion.

Two Methods! If the entire meeting is closed, include this

information in your public notice. If closing an open meeting, include this

information on your agenda and in the motion to close.

It Takes Two to Make It Right(on the agenda and motion to close)

Authority

NMSA 10-15-1.H(7), threatened or pending litigation

NMSA 10-15-1.H(2), limited personnel matters

2. Discuss it.

Take a roll-call vote on the motion to close.

Either leave, or kick everyone out. Discuss.

You do not need to keep minutes. You may invite others into executive session

with you.

3. Say what you discussed.

When you re-enter open session, or at your next open meeting, read the following statement into the record:

“The matters discussed in the closed meeting were limited only to those specified in the [motion to close/notice of the closed meeting].”

This is a promise to the public that you obeyed the law. It’s the only assurance we have.

Common Exec-Session Violations

Taking action in closed session.

Expanding the exemptions to discuss sensitive or controversial topics behind closed doors.

Failing to cite both the legal authority AND the subject to be discussed.

Saying “no action was taken” instead of “only XYZ was discussed.”

Basic Steps

1. Adopt your OMA resolution, annually.2. Decide to hold a meeting.3. Provide public notice.4. Issue final agenda no later than 24 hours

prior.5. Hold the meeting.


6. Produce draft minutes within 10 days.7. Approve minutes at your next

meeting.

Minutes

Must include:Date, time, place of the meetingNames of those present & absentSubstance of proposals consideredAny decisions and votes w/ record

of how each member voted. All minutes are open to

inspection.

Common Minutes Violations

Failing to record who’s present/absent.

Failing to record how members voted.

Forgetting to approve minutes at next meeting.

Potential Consequences

Actions taken at a non-complying meeting are invalid

The Attorney General, District Attorney or a private individual may file a civil suit.

Violating the Act is a criminal misdemeanor, punishable by up to $500 for each offense.

Core Principles

No secret meetings.

No secret votes.

Watch those action items!

Questions?

NMFOG.ORG(505) 764-3750(888) [email protected]

mailto:[email protected]

judge damon j. keith nmfog.org. in recognition of the fact that a representative government is...

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