NM FOG letter on APS' Public Participation policy and procedural directive

115 Gold Ave. SW, Suite 201Albuquerque, NM 87102

(505) 764-3750fax (505) 433-6441

[email protected]

September 25, 2014

John BoydFreedman Boyd Hollander Goldberg Urias & Ward, P.A.20 First Plaza, Suite 700Albuquerque, NM 87102By email: jwb@fbdawcom

Dear Mr. Boyd:

We are writing in response to your letter of August 21, 2014, in which you express concern about two provisions in the new guidelines enacted by Albuquerque Public Schools (“APS”) for its board meetings.

We understand one concern to be the provision at page two of the guidelines under “Board of Education Member Etiquette” which states as follows:

The New Mexico Open Meetings Act prohibits open discussion amongst board members for any item not listed on the Board of Education Meeting agenda. Therefore, Board of Education members shall treat public comment as a time to listen to the comments from attendees of the Board of Education meeting. Public comment shall not be a time for open dialogue with the speaker. Public comment shall not be a time for board members to answer questions posed to them from a speaker or comment on a speaker's concerns. If the board member chooses, he or she may respond to concerns of

EXECUTIVE COMMITTEE

Kathi Bearden President

Gregory P. Williams President-Elect

Martin Salazar Secretary

Robert B. Trapp Treasurer Daniel Yohalem At-Large Member

Charles “Kip” Purcell At-Large Member

DIRECTORS

Billie Blair Santa Fe

Norm Becker Albuquerque

Jeri Clausing Albuquerque Dede Feldman Albuquerque

Charles Goodmacher Rio Rancho

Viki HarrisonAlbuquerque

Phil Lucey Albuquerque

Melanie Majors Albuquerque

Michael MelodySanta Fe

Karen MosesAlbuquerque

Iain Munro Albuquerque

Fred NathanSanta Fe

Charles R. PeiferAlbuquerque

Ray RiveraSanta Fe

Mike Stanford Albuquerque

Grant TaylorHobbs

Kyla Thompson Albuquerque

Doug Turner Albuquerque

mailto:[email protected]


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speakers during board member reports at such time board member reports appear on the meeting agenda.

We understand your position to be that APS’ assertion that “The New Mexico Open Meetings Act prohibits open discussion amongst board members for any item not listed on the Board of Education Meeting agenda” is an incorrect statement of the law, as the Act only forbids any board from taking action on any item not listed on the agenda. We tend to agree with you on that point, though the matter is not free from doubt.

The Open Meetings Act (“the Act”) prohibits a public entity from taking action, except for emergency matters, on items not appearing on the agenda (NMSA 1978 § 10-15-1(F)(2013)). It does not explicitly prohibit discussion of items not on the agenda. However, the same section of the Act states that “[m]eeting notices shall include an agenda containing a list of specific items of business to be discussed … at the meeting.” Id. Read together, these provisions support the same policy consideration: the public should receive advance notice of matters to be addressed at a meeting, and the public entity should avoid meaningful discussion of topics not listed on an agenda. However, FOG also believes that public comment periods are an important part of public meetings, and that citizens should be able to raise concerns that relate to the public entity’s business. We do not believe that the Act broadly forbids dialogue between public bodies and their constituents. We would encourage APS to adjust its policy in a way that allows citizens to speak on any topic relevant to APS business, but does not encourage extensive discussion by board members on items not listed on the agenda.

Your second concern is with the provision on page four of the APS guidelines under “Enforcement of Appropriate Etiquette” which states that individuals who violate APS’ procedural directive “may be prohibited from future meetings.” As we understand it, your position is that barring citizens from future meetings is unconstitutional.

FOG does not believe it is necessary to determine whether exclusion of a citizen from future public meetings is per se unconstitutional. Certainly, any attempt by a public entity to bar a citizen from attending future meetings would bear a heavy presumption of unconstitutionality. FOG is greatly concerned about any public meeting guidelines that, either facially or as enforced, allow for exclusion of citizens. The Act requires that all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings, NMSA 1978 § 10-15-1(A), and the New Mexico Supreme Court has interpreted it to mean that “no one will be systematically excluded,” Gutierrez v. City of Albuquerque, 1981-NMSC-061, ¶ 6, 96 N.M. 398, 631 P.2d 304. On the other hand, the public has an interest in ensuring that public meetings are conducted in an efficient and productive manner. These occasionally


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competing interests are at the heart of the First Amendment jurisprudence. FOG would caution APS not to seek to bar attendance by a citizen except in the most extreme circumstances.

As a closing note, FOG acknowledges that you are currently representing a plaintiff in a lawsuit against APS regarding access to board meetings. FOG is not presently involved in that case, and this letter should not be read to offer any opinions or commentary on either the issues in that case or on the circumstances surrounding APS’ adoption of its new guideline.

Thank you for bringing this matter to FOG’s attention. Please let us know if you would like to discuss these matters further.

Very truly yours,

/s/Susan BoeExecutive Director

Documents

NM FOG letter on APS' Public Participation policy and procedural directive