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Disclosure laws are bad for New Mexico’s future

Thirty-six other states allow people to apply for public jobs without having their names disclosed at the outset of the process. Last month, the Albuquerque Public School Board suggested New Mexico do the same and provide confidentiality to candidates unless they become finalists for an important public position. Ten of the 35 other states require disclosure of finalists like the school board proposed.

There are only six states, including New Mexico, where the law requires disclosure of the names of non-finalists. In eight states, the law isn’t clear. This puts us at an obvious disadvantage in competition for leadership talent, since most states allow people to apply on a confidential basis unless they become finalists.

Requiring premature disclosure will prevent many of the best people from applying. When APS sought a new superintendent in 2015, it was shocking that not a single superintendent of a large or even medium-sized school district applied. Granted, those are not the only people who might make an outstanding superintendent. But current New Mexico law effectively excludes candidates who are successfully doing the same job somewhere else.

In 2017, North Dakota amended its open records act to give confidentiality to people who don’t become finalists. The sponsor explained:

“The committee recommends this bill because under current law we are limiting the pool of applicants and placing our state in a very disadvantageous position. Potential applicants have withdrawn their names or not applied at all when they notice that their application is subject to open documents law. You may think that is not the case, but here are some examples. University of Northern Iowa (where applications are confidential) had five sitting university presidents apply to be their president. University of North Dakota had none. In fact, UND has never had a sitting president apply. Northern Iowa applicants were asked why they didn’t apply to UND and they all said it was because of North Dakota’s open records law.”

This is exactly the situation in New Mexico. The best candidates, including good New Mexico candidates, will not apply for a job if they have to burn their bridges to do so. Who can blame them if they don’t even know they will become finalists?

Colorado has a law like the one the APS Board has suggested. At least three finalists must be disclosed in advance of the hire. This law was supported by the Colorado Press Association. They agreed the finalist-only rule was a good balance of the right of applicants to seek new opportunities with some confidentiality, the interest of public entities in attracting the best candidates, and the right of the public to know about the candidates who are being seriously considered for the position.

Fear of “cronyism” in hiring is emphasized by the press, but it is a red herring. Like Colorado, we can require public entities to disclose the finalists a week or two in advance. This gives the public a chance to review résumés and find out more before the final selection. If one of the candidates is obviously not qualified for the job or is related to some powerful person, it will be apparent soon enough.

The Journal demands to know who the non-finalists are, as well. This is almost always useless information; all disclosure does is hurt the people who didn’t get to be finalists. If an individual feels unfairly rejected, he or she can come forward and say so, or even file a lawsuit. That should be a decision for the applicant, not a rigid requirement of state law. Instead of displaying failure in the press, we should nurture the individuals who weren’t selected and help them improve their chances for the future.

New Mexico cannot afford to throw away talent like this. That’s exactly what we are doing. The Legislature and the new governor should join to bring New Mexico law in line with 36 other states.

Nick Estes was UNM counsel from 1986 to 2005. The views expressed here are his own.