City denies violating open meetings law

The city of Las Cruces maintains that it followed laws pertaining to public meetings early in the process of selecting a new city manager this month, despite evidence from the city’s own statements that city council members discussed public business outside of open session.

The city announced the resignation of City Manager Ifo Pili with a press release on Feb. 28 which stated that internal applications for the job had opened that day, indicating a decision had been made to hire the next city manager from within rather than through an executive search.

City spokesperson Mandy Guss told the Bulletin shortly after that announcement, “The city manager hiring process was suggested by Ifo, who spoke individually with the city council members and got their OK to move forward.”

New Mexico’s Open Meetings Act states that “the formation of public policy or the conduct of business by vote shall not be conducted in closed meetings. All meetings of any public body except the legislature and the courts shall be public meetings, and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings.”

The law further states that any meeting of a quorum, meaning the minimum number of members of a municipal government required for a legal business meeting, must comply with the requirements of official meetings of public governing bodies, including advance notice and publications of an agenda.

That also applies to discussions of public business when members are not present at the same place or time. For instance, according to an Open Meetings Act compliance guide published by the New Mexico Department of Justice: “…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.”

If a quorum discusses public business in separate conversations or messages, it is referred to as a rolling or walking quorum. This provision of the law was clarified following a successful 2003 lawsuit by the Las Cruces Sun-News and the New Mexico Foundation for Open Government, complaining that the city council violated OMA by discussing official business through a rolling quorum.

Violations of OMA potentially invalidate decisions made by the council, and violators can even be charged with misdemeanors for the offense, although that is rare. In 2002, Attorney General Patricia Madrid charged five Las Cruces school board members for approving incentive pay for the superintendent outside of a legal meeting.

The city moved swiftly over the past month, with Pili naming an acting city manager the city argued did not constitute an “interim city manager,” which would be an official appointment requiring council approval. The city manager is the sole city employee hired and supervised by the council, including the mayor.

According to a readout from the city, during a closed session on March 18 the council met with the city’s human resources department to discuss the process and select three finalists from nine applicants for the job. On March 20, the council interviewed the three finalists in closed session, and announced the following day it had made a tentative offer to one of them: Ikani Taumoepeau, an assistant city manager since 2021 who had worked with Ifo Pili at the city of Eagle Mountain, Utah prior to Pili’s hire in Las Cruces.

“The City Council is aware that final action on the City Manager selection must take place in open session and is scheduled for discussion at an open meeting on April 1, 2024,” Guss wrote in an email in which she stated she did not know how many councilors Mr. Pili had consulted with and insisted “there was no rolling quorum as no policy was voted on.”

She also acknowledged that Taumoepeau’s selection took place at the March 20 closed session, without a vote or discussion in open session. The city announced his selection the following day and said his contract would be made available ahead of the April 1 council meeting, when the body votes on its approval.

Responding to questions, Guss said the city’s legal department had not been consulted about the hiring process or Open Meetings Act compliance.

When pressed on the point that a rolling quorum can exist under the law even if a vote does not take place, Guss replied, “We are confident the City has fully complied with the Open Meetings Act throughout this process. If you have questions about the interpretation of OMA, you can reach out to the Attorney General.”

Melanie Majors, director of the New Mexico Foundation for Open Government, said the evidence resembles “the exact definition of a rolling quorum.”

“The use of a quorum to discuss public business or take action violates the Open Meetings Act,” she said. “It may be used to produce a predetermined outcome and thus render any open meetings a mere formality. … It sounds like they have circumvented the Open Meetings Act by using an agent, the city manager, to poll the members of the body through a series of individual contacts. That is what the definition of a rolling quorum is.”