AG says Otero County emergency meeting invalid

New Mexico Attorney General Raúl Torrez declared Friday that an emergency meeting held by Otero County commissioners March 13 was invalid, potentially putting the county’s new contract with U.S. Immigration and Customs Enforcement into legal limbo.

The meeting took place with about three hours’ notice to the public. The commissioners met in Alamogordo to approve a five-year agreement with ICE on holding immigration detainees at the county-owned processing center in Chaparral.

County Attorney R.B. Nichols said the meeting constituted a valid emergency under New Mexico’s Open Meetings Act because without a contract, the county would be unable to repay revenue bonds that funded construction of the facility.

Evaluations of emergency public meetings are required by state law. Public bodies are required to hold meetings with public notice and agendas available at least 72 hours in advance, but the law allows emergency meetings to be held on shorter notice under some circumstances. Within 10 days of an emergency session, the public bodies are required to report it to the state Department of Justice, which then evaluates the basis for the emergency and actions taken.

On Friday, a letter from Blaine Moffatt of the DOJ’s Government Counsel and Accountability Bureau advised the commissioners that the meeting violated the law, rendering the commissioners’ actions invalid.

Quoting the open meetings statute, Moffatt wrote that the meeting did not address “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 harm to the public body.”

Nichols had argued that the stakes of dropping the county’s relationship with ICE were a financial emergency. However, Moffatt wrote that the expiration of a contract and bond payment schedules do not justify emergency meetings under the law.

“...The County lacked a lawful basis to call an emergency meeting for the purpose of renewing the ICE contract,” the letter stated. “As a result, the vote to approve the renewal at that meeting is invalid under the Open Meetings Act.”

The office requested that the county respond to the finding by Monday evening with steps for coming into compliance with the law.

But Nichols disputed the finding Friday and told the Journal the county’s response would detail its disagreement. “The characterization of the circumstances are foreseeable is factually incorrect, and our response will make that clear,” he wrote to the Journal.

State Rep. Sarah Silva, a Democrat representing Doña Ana and Otero counties, had publicly called for a review of the meeting and the contract itself. On Friday, she thanked the DOJ for a swift evaluation and said it answered questions she had about the open meetings issue.

The finding puts detention operations into a legal gray area. The county’s previous contract with ICE expired last week with the new one purportedly taking effect last Monday. The county has an opportunity to cure Open Meetings Act violations, such as through holding a vote in a properly noticed meeting. The DOJ could take the county to court to enforce the law if it deems the violations outstanding. In the meantime, detention operations at the Otero County Processing Center are taking place under a contract that is not valid in the state’s eyes.

“The more they delay redoing this vote, the more complicated they are going to make this for themselves,” Silva said. 

“The Open Meetings Act is not optional,” Torrez stated in a news release. “It ensures that public business is conducted in the open, not rushed through under the guise of an emergency when no true emergency exists. New Mexicans have a right to transparency and accountability from their local governments, especially when decisions of this magnitude are being made.”

Algernon D’Ammassa is the Journal’s southern New Mexico correspondent. He can be reached at adammassa@abqjournal.com.