1. How far in advance does a public meeting have to be advertised?
Ready for a lawyer’s answer? It depends. There are really two deadlines — the public body has to (a) notify the public that a meeting is happening, and (b) make its meeting agenda available. The first deadline varies from agency to agency, whereas the second deadline is enshrined in state law: 72 hours.
Public Notice: The exact deadline is set by each public body in its mandatory annual Open Meetings Act resolution. (You may obtain a copy by submitting an Inspection of Public Records Act request for it.) The Open Meetings Act simply requires “reasonable notice to the public.” The legislature recognized that “reasonable” for a village of 300 people may not be reasonable for a statewide commission, and vice versa. The Attorney General’s Office says that it will automatically consider the following notice reasonable, regardless of circumstances: 10 days for a regular meeting, 3 days for a special meeting, and 24 hours for an emergency meeting. Many public bodies in New Mexico adopt this framework.
Each public body’s OMA resolution also prescribes notice procedures, such as whether the notice will be placed online, at the main office and community centers, in the local newspaper, etc. Notice must include an agenda, or information about how to obtain the agenda. (Keep reading for more on agendas.) FOG’s advice to public bodies is to adopt procedures that can be carried out consistently each time, and that provide as much public notice as possible to as many constituents as possible. Once the OMA resolution is adopted, it becomes binding on the public body. See an example
*Special note for media: the Open Meetings Act requires that individual meeting notices must be provided to any newspapers of general circulation or FCC-licensed broadcast stations that request notice in writing. This does not require the public body to place an ad, nor does it require media outlets to publish meeting information. It just ensures that media outlets are notified of all meetings, if they so desire.
Agenda Availability: The Open Meetings Act mandates that a final agenda must be available to the public “at least 72 hours prior to the meeting,” and post the agenda on the public body’s website, if one is maintained. Except in true emergencies, this is a hard-and-fast deadline. Public bodies may not add new action items after this deadline, except in true emergencies. The Act helpfully defines an emergency as “unforeseen circumstances that, if not addressed immediately by the public body, will likely result in injury or damage to persons or property or substantial financial loss to the public body.” Within 10 days of taking action on an emergency matter, the public body must report to the attorney general’s office the action taken and the circumstances creating the emergency.
2. I know my local elected officials are holding private meetings. What do I do?
First, there’s a question you have to answer — how do you know? Can you provide any evidence of a secret meeting among a quorum? You might say, with good reason, that “there was no advance public discussion, therefore, there must have been a secret meeting” … but that may be insufficient to prove a violation. Whenever possible, you want to bolster your case with specific evidence — like a witness who overheard a discussion of public business (and is willing to come forward), or copies of an e-mail discussion among board members.
If you have evidence of a private, unannounced meeting, you can do two things: one, notify the public body in writing. State when and where the alleged violation occurred, and why you believe the conduct violates the Open Meetings Act. Be sure to attach any documentary evidence. For extra credit, cite the specific section of the Act which has been (allegedly) violated. Under the Open Meetings Act, the public body has a 15-day period to either deny the claim or act on it. (Acting on it means holding a public meeting to summarize any discussion held during the non-compliant meeting, and to hold votes on any action items from the non-compliant meeting. This may cure the violation, though the public body may still be on the hook for any financial or legal consequences of their violation and related inaction.) If the public body does nothing, after 15 days you have standing to file a lawsuit alleging an Open Meetings Act violation. Or two, you may file a complaint with the New Mexico Attorney General’s Office. Click here for instructions. You can do both these things at once; however, if your case does go to court, the AG’s Office may end its investigation and let the court sort it out.
If you don’t have specific evidence, you’re certainly not alone. Open-meeting violations can be hard to prove. But without evidence, you’re unlikely to get any relief from filing a complaint with the Attorney General or in court. The Open Meetings Act has a provision, 10-15-3.A, which says that “every resolution, rule, regulation, ordinance or action of any board, commission, committee or other policy-making body shall be presumed to have been taken or made at a meeting held in accordance with the requirements of [the Open Meetings Act].”
Therefore, anyone wanting to challenge a particular action as invalid generally has to present some evidence that an open-meetings violation really did occur. Even witness testimony from someone who saw a quorum of councilors together may not be enough – particularly outside of any official setting, when it might be plausible that elected officers were discussing golf or their husbands’ foibles. When it comes to evidence, a witness that overhears specific words or phrases clearly relating to public business is better, and written documentation is best of all.
Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the New Mexico Foundation for Open Government.