NMFOG asks appeals court to keep teeth in state’s sunshine law
Should government officials face serious consequences when they hide their decisions from the public?
Yes, says the New Mexico Foundation for Open Government. The organization is urging the state Court of Appeals to hold that current and former Rio Rancho elected officials cannot get away with an open-meetings violation simply by holding a later meeting and declaring it “retroactive” to a date of their choosing.
“If the city’s interpretation of the (Open Meetings) Act is allowed to stand, there will simply be no incentive for a public entity to comply with the act,” NM-FOG attorney Gregory P. Williams wrote in the group’s Sept. 10 friend-of-the-court brief. “A public entity can merely take public actions in secret, and if caught, perform the same acts in a proper manner and ‘retroactively’ apply the results.”
The case involves the firing of former Rio Rancho City Manager James Palenick. In late 2006, then-Mayor Kevin Jackson and a quorum of city councilors discussed firing Palenick during a series of casual, unannounced get-togethers, according to court documents. The council then voted to fire Palenick at a formal meeting which was held with too little public notice and an overly vague agenda. That vote was later declared invalid by the New Mexico Attorney General’s Office.
“When public officials act in secret, it’s as if they never acted at all,” NM-FOG Executive Director Sarah Welsh said. “That’s the biggest hammer the public has for ensuring openness. Since the council’s initial vote to fire Mr. Palenick was invalid, he still held a binding employment contract with the city.”
Informed of its open-meetings violation, the council voted to fire Palenick in a properly convened open meeting. But by then, 11 months had passed. Palenick sued the city for back pay during the elapsed period.
His claim was rejected by 13th Judicial District Judge George Eichwald, and the case is now before the state Court of Appeals.
“The outcome of this case could send an important message about whether our current sunshine law has teeth,” Welsh said. “When elected officials are caught violating the law, is it enough for them to say they’re sorry and promise to do better next time? No. I think they should suffer the consequences of their actions so they make sure to do better next time.”
Welsh noted that the public loses twice in cases like this — once when they’re denied access to official proceedings, and again when they pay the financial costs of illegal secrecy. That’s why it’s so important for officials to adhere to sunshine laws, Welsh said.
“In this economy, the prospect of paying back wages is certainly painful,” Welsh said. “But it’s also painful for taxpayers to be shut out of important decisions that affect a city’s bottom line. At the end of the day, officials have to be held accountable for operating in secrecy.”
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