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AG: Regents need to be more specific

The University of New Mexico regents must indicate exactly which employee they will discuss when taking public meetings behind closed doors for “personnel matters” – and so should every other public body in the state, according to New Mexico Attorney General Hector Balderas.

Balderas’ office this week ruled that UNM violated the state Open Meetings Act by providing little specific information on the agenda for the Board of Regents’ July 19 meeting. The determination letter cited the generic language used to describe the ultimate vote to cut four Lobo sports teams, as well as what would transpire during the meeting’s closed session.

The agenda said it would include “discussion and determination where appropriate of limited personnel matters as permitted” by law. UNM routinely uses the same general phrasing on agendas and defended the appropriateness of such language in response to the new opinion.

But in what open government advocates see as a victory for transparency statewide, Assistant Attorney General John Kreienkamp’s letter to UNM said that to comply with the OMA,”the public body must list the specific individual employee to be discussed by the Board.”

Balderas said during a news conference Thursday that the same standard applies across the state.

“Our interpretation is consistent: no bodies in government should be exploiting or hiding behind litigation and personnel exceptions,” he said.

Chief Deputy Attorney General Tania Maestas said the office believes public bodies using the “personnel matters” exemption to close a meeting are required to either identify the employee by name or by their job title, assuming it is a title that applies to only one person. She said the office has issued similar opinions in the past but could not immediately provide them Thursday afternoon.

Santa Fe attorney Daniel Yolahem, an executive committee member for the New Mexico Foundation for Open Government, said making such a determination in a high-profile case is key.

“I’m glad that they’ve said this out loud in this context,” he said. “That’s going to be very important for the public agencies, state and local, throughout the state to pay attention and follow the attorney general’s guidance.”

Many public bodies rely on similarly generic language to enter executive session, and he said this week’s opinion sets a precedent. Though courts have the ultimate authority in these matters, the attorney general is charged with enforcing the state’s transparency laws, so the office’s opinion carries significant weight, Yolahem said.

“I think this is a very important step the attorney general has taken,” he said.

Yolahem said the public also should know the nature of the discussion – whether it’s about compensation, performance or possible discipline.

But UNM disputed Kreienkamp’s ruling on the “personnel matters” item.

UNM’s written response to Kreienkamp argues that the attorney general’s own OMA compliance guide “condones a motion to ‘move that the commission convene in closed session as authorized by the limited personnel matters exception to discuss possible disciplinary action against an employee,’ ” university attorney Patrick Hart wrote in the Aug. 9 letter. “The Attorney General states that such a motion would be acceptable because it gives a general idea of the discussion ‘without compromising the confidentiality conferred by the exception.’ ”

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