AG’s office says charter school violated Open Meetings Act

New Mexico’s Open Meetings Act states, “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”

The law sets rules for municipalities and other government bodies ensuring that public business is conducted in the open and that citizens have sufficient notice and access to observe the proceedings.

Potential violations of the law are investigated and enforced by the Governmental Counsel and Accountability Division of the New Mexico Department of Justice, which typically issues advisories to agencies about compliance with the state’s sunshine laws.

In recent weeks, the office has advised the city of Anthony and Eastern New Mexico University that its officers violated the law, and is investigating potential violations by the Bernalillo County Board of Commissioners.

This spring, the office also advised the governing council of Alma d’Arte Charter High School that it had breached OMA by failing to provide sufficient notice and agendas for four meetings of the school’s governing board. As public schools that receive state funding, charters are required to follow OMA.

Following up in April, the office noted the school had taken positive steps in complying with the law and training board members on OMA’s requirements, while making further recommendations.

The complaint

Jennifer White, a former science teacher at Alma d’Arte, filed a complaint with the Department of Justice last August stating the board was not posting notices of its meetings properly and failed to make agendas available to the public at least 72 hours in advance, as required by the statute. She told the Las Cruces Bulletin she noticed noncompliance last July and attempted to address it directly as well as through the faculty’s labor union, but was rebuffed.

“They had posted on social media that they were going to have a regular governance council meeting on July 17th,” she said, “but they did not post it at the school. They only posted it on social media, and they did not post an agenda. They also said in their posting that the meeting would be via Zoom, but they provided no Zoom link.”

OMA requires that governing bodies provide “reasonable notice to the public” of business meetings. A compliance guide published by the state Attorney General states, “…a reasonable notice must adequately, accurately, and sufficiently in advance inform the public of the meeting’s time, place and date, and should be published or posted in a place and manner accessible to the public, such as a central location at the public body’s main office where the public is allowed, as well as on a web site if the public entity has one.”

The meeting was subsequently moved to July 20, also by video conference, but she said the school again announced the meeting only on social media, and again without an agenda or a link allowing the public to join. White said the school posted a link shortly before the meeting and that once the meeting was called to order, the board immediately went into closed session — which governing bodies may do for specific purposes under the law.

The following month, she alleged, the board again announced a business meeting without providing the agenda. At that point, she filed a complaint with the DOJ online, seeking an investigation “because we don’t want to start this kind of pattern.”

Notably, the past year has seen rapid turnover on the governing board as well as the arrival of a new principal, Adam Amador, in July. White was terminated from her job in October and now teaches elsewhere.

Findings

The office requested the school provide documentation of its meetings, records showing when and where notices and agendas were available as well as the annual resolution, required of public bodies, establishing its procedures for giving notice of meetings. It also requested minutes of meetings, which would show what official actions the body took. The school produced documents and a letter from Amador, responding to the complaint by lashing out at White personally.

The office did not report any findings related to the July and August meetings, but advised the school in March that it had not provided timely notice of its meetings from September through December, based on information the school provided.

From the school’s documentation, the office said it appeared notices were posted just two hours ahead of the actual meeting. It also did not post meeting notices on its official website, although it did post notices in several locations and on its social media account. Moreover, the school did not provide documentation showing agendas were made available 72 hours in advance.

That letter stated that the school did not provide any record of an up-to-date annual OMA resolution. In a follow-up, the school provided one effective for the 2023-24 school year.

As a result, Assistant Attorney General Daniel Rubin advised by letter, any actions taken at those four meetings are invalid. “However, the School can cure the violation by ratifying any invalid actions at a properly noticed and convened public meeting,” he wrote to the school.

According to meeting minutes, the actions taken at those meetings included budget adjustments; updates to the student and faculty handbook; first- and second-reading approval of a building use policy; first-reading approval of a social media policy; formal approval of minutes of previous meetings; authorization of payroll and accounts payable; and approval in November of a rubric for Amador’s performance evaluation.

The board also convened executive sessions, closed to the public, in each of the four meetings. OMA permits this for discussion of certain topics, such as personnel matters, but any vote on official action must take place in open session.

The state also required that school officials attend OMA training.

Progress

Assistant Attorney General Lawrence Marcus followed up with the school in April, noting that Alma d’Arte had documented attendance at an OMA training session and recommended changes to the school’s OMA resolution.

The changes requested by the office included amending a provision, pertaining to notice of special meetings, that conflicted with the law. The office further recommended that notices of a meeting’s postponement be posted not only at the school’s entrance but “in all places where the original notice was placed, including the School’s web site.”

The April 30 letter said the office was not seeking enforcement action at this time, but was leaving the matter open pending an amended OMA resolution.

The Bulletin asked the governing board whether it would ratify actions taken at the invalid board meetings, following the state’s advice, but got no response.