Afterward, Mayor Javier Gonzales said there was a “unanimous vote” to proceed with planning for ranked-choice voting in the March municipal election and a “5-4 decision” to at the same time appeal the judge’s order to the state Supreme Court.
The trouble with the mayor’ summation was that votes in closed executive session are illegal. The second sentence of the state Open Meetings Act says, “The formation of public policy or the conduct of business by vote shall not be conducted in closed meetings.”
The mayor clarified on Tuesday that there really weren’t any votes – by voice, ballot or raising of hands – behind closed doors. He said: “It was clear from the discussion that there were five members who favored an appeal and four who did not. That is how the direction emerged and was taken by staff” on the contested issue of appealing the ranked-choice order to the Supreme Court.
Okay, so there were no secret votes. The problem now is that there never was a vote.
The direction to the city attorney was merely informal, apparently. Would that stand up if challenged? When it comes to the important matter of asking the Supreme Court to decide how Santa Fe’s mayor and city councilors are going to be elected, shouldn’t the City Council take a vote, specifically a vote in public?
We know the tally would still be 5-4, and by now we know how mayor and councilors each came down on the issue. But voting in public after an executive session is simply the way things should be done, under the law. Any formal action is to be taken in public.
To repeat a point made previously on this page, the Santa Fe County Commission has shown the right way to handle legal matters transparently – for example, when it was in a dispute with Santa Fe Studios on overdue payments for land sold to the movie studio.
The County Commission took a public vote to give its legal staff specific instructions to negotiate and then sue if necessary. It was simple and painless. No one had to ask how each member of the County Commission felt about the legal action or if there really was a “vote” in executive session. And there was an official, on-the-record action by the commission.
The City Council’s most recent screw-up is not a mortal sin, like when the council in 2016 emerged from executive session and, in a bizarre move, voted to tell the city attorney’s office to do an unspecified something that had been determined in secret. The councilors on Monday even agreed to “waive privilege” and allow themselves to discuss what they talked about in the closed session. But being nice isn’t a long-term fix or a commitment to transparency.
This week, Journal reporter T.S. Last asked the spokesman for the state Attorney General’s Office if there are circumstances where a public body like the City Council can vote in closed session. The answer was simple (and please note the reference to “final decisions):”
“According to the law, all actions and final decisions, including votes, must take place in public session.”