Lawmaker seeks review of Otero County's new ICE contract

A state lawmaker representing Chaparral in southern New Mexico has asked state Attorney General Raúl Torrez to review Otero County commissioners’ emergency meeting Friday in which they approved a new five-year contract with U.S. Immigration and Customs Enforcement to continue detaining immigrants at the Otero County Processing Center.

“In addition to suspecting this is an attempt to circumvent HB 9, I am concerned about what this provision could mean for Otero County and its residents if ICE fails to meet its obligations under the agreement,” state Rep. Sarah Silva, D-Las Cruces, wrote to Torrez.

House Bill 9, passed by the Legislature and signed into law by Gov. Michelle Lujan Grisham in February, bars public entities from selling, leasing or otherwise transferring property for federal civil immigration detention. The law takes effect May 20 and would have required the county to withdraw from any active agreement with ICE for its Chaparral detention facilities.

However, in a meeting convened with only a few hours of public notice, the three commissioners approved an intergovernmental services agreement that precluded the county from withdrawing for any reason. The county’s previous contract with ICE expired last weekend and the new agreement took effect Monday, according to county attorney R.B. Nichols.

A review of the emergency meeting is already required under New Mexico’s Open Meetings Act, which states the county must report the emergency session, actions taken and the basis for the emergency to the state Department of Justice within 10 days.

“The office must evaluate whether they have risen to their obligation of proving why it was absolutely necessary to not inform the public like they normally would,” Christine Barber, executive director of the New Mexico Foundation for Open Government, told the Journal. The criteria for an emergency meeting are strict, she added, and approved actions would be legally void if the emergency basis was invalidated.

On Tuesday, Nichols said the county takes no position on federal immigration policy but argued there was no option but to contract with ICE because there is no other revenue source for repaying federal revenue bonds approved in 2007 that financed the facility’s construction.

“Failure to maintain the federal contract would place the County in default on approximately $19.3 million in outstanding bond obligations, jeopardize the County's credit standing for future borrowing, and put 284 jobs and tens of millions of dollars in annual wages and gross receipts tax revenues at risk for the residents of Otero County,” Nichols stated in a news release arguing that the financial risk to the county justified the emergency session under the state’s Open Meetings Act. Ordinarily, advance public notice of such meetings is required with agendas to be available at least 72 hours in advance.

Silva asked Torrez to assess whether the contract was an unlawful circumvention around HB 9, due to its explicit provision forbidding the county from terminating the agreement.

“It is the County's position that the agreement as executed complies with HB9,” Nichols rebutted in an email to the Journal. “Because the County has no right to terminate the agreement, the earliest date permissible under its terms is March 15, 2031, by which time all bond obligations will have been satisfied.”

Besides the contract, commissioners also voted to authorize Nichols to proceed with litigation related to the contract or the revenue bonds, and to procure outside legal services for up to $350,000. Silva asked Torrez to review whether those items were appropriate for an emergency session.

Nichols told the Journal those issues were linked to the same financial emergency, writing, “The financial harm to the County is not limited to the loss of the contract. It includes the legal consequences that follow if the County cannot defend its rights under that contract.”

The items were approved by Commissioners Vickie Marquardt, Gerald Matherly and Amy Barela unanimously with no questions or discussion. Silva said their silence might be evidence of a “rolling quorum,” in which elected officers conduct business or negotiations outside of a public meeting.

Nichols said he had contacted commissioners individually only to inform them ICE submitted a corrected contract the night of March 12 and to schedule the meeting.

“These were individual attorney-client communications from the County Attorney to each commissioner separately,” the county stated in a news release. “No commissioner communicated with any other commissioner regarding the substance of the emergency meeting outside of open session. Individual attorney-client communications from the County Attorney to commissioners informing them of a legal emergency and confirming availability for a meeting are not deliberation and do not constitute a rolling quorum under the Open Meetings Act or applicable case law.”

State Department of Justice spokesperson Lauren Rodriguez confirmed that an evaluation was underway, stating, “Our office is reviewing the matter, including potential compliance with the New Mexico Open Meetings Act and other legal considerations related to the county’s action.”

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