Given the choice of releasing spreadsheets detailing water calculations for the Gila River Water Diversion Project, the ISC refused, citing an exemption under state law for databases.
Given the choice of walking away with a court victory after a critic alleged open meeting violations in a case that could have caused the ISC to miss a decade-old deadline and potentially lose millions in federal money for the Gila project, the commission decided to seek payback.
A reasonable person would think the general public has a legitimate stake in knowing how the agency charged with overseeing projects involving the state’s most precious commodity – water – reaches its decisions. But if these past actions are any indication, the people at the ISC would appear to disagree.
A former ISC director, Norm Gaume, who with others opposes the Gila project on cost, efficiency and environmental concerns, sued the commission in October, asking for a restraining order against the commission. Gaume contended decisions about the project had been made in secret, without proper notice or public discussion.
The law is murky on whether the subcommittee meetings in question had to be held in public. But there is a choice to err on the side of transparency – and that’s what the ISC should have done.
Ultimately, the commission prevailed in court in its fight against a restraining order and was able to make its decision to accept money for the Gila project by the Dec. 31 federal deadline. The underlying question of whether the closed meetings were a violation has never been decided in court.
Regardless, the ISC is countersuing Gaume, saying it wants the retired engineer to pay back the commission for the time and money it spent fighting him and costs incurred in the delay that followed the initial granting of the restraining order – which was later lifted by another judge. Gaume estimates if the commission prevails in its counterclaim it might cost him $100,000.
The Open Meetings Act allows a government defendant to collect court costs and, in extreme cases, attorneys fees spent defending against allegations found to be without merit. And that really hasn’t been determined here. But the state is going further, seeking to collect other costs as well, including the cost of airfare associated with a canceled meeting and non-attorney staff costs.
Last time anyone checked, ISC staffers are state employees who work for – and are paid by – the taxpayers of New Mexico. They would have been paid for their time in any case. And the deadline to claim the federal money was met.
In the end, the commission suffered no irreparable damage. Calling the delay caused by Gaume’s lawsuit “an extreme hardship” is an overstatement.
Gaume points out that a government agency has far more resources to bring to an open meetings fight. “You don’t have deep enough pockets if you’re just a citizen,” he said.
The commission’s countersuit seems to be a move to punish Gaume for what it says was his use of the open meetings act to achieve a political objective by delaying the project and taking away the possibility of federal funding. But there is no question there is a chilling effect that will be felt by others who would seek to hold the government accountable.
The state’s action looks and walks like a SLAPP suit, or strategic lawsuit against public participation, that until the Legislature adopted an anti-SLAPP law in 2001 put individual citizens at risk of being sued – and punished – for challenging their government.
The commission serves the public. It should drop this punitive action and commit to operating in a more transparent manner.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.