AG finds LAPS board erred

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Open Meetings Act > Inquiry uncovers several areas of concern

By John Severance

The New Mexico Attorney General’s office found that the Los Alamos Board of Education violated the Open Meetings Act following an inquiry by the Los Alamos Monitor last June.

The school board, however, adopted a resolution in a June 28 meeting intended to cure the OMA violations regarding the May 24 meeting and the AG’s office was satisfied with that, but also pointed out other areas of concern.

In its letter, Assistant Attorney General Mary Smith wrote, “A public body can legally correct prior mistakes and effectively give legal force to its prior invalid actions.”

But Smith also said the board did violate the OMA “regarding the agenda for, actions taken at and the minutes of its May 24, 2012 meetings.”

“While there is certainly nothing more here to indicate anything other than a simple misunderstanding of the law by the school board, I think this points to one more instance of the valuable watchdog role that community news organizations like the Los Alamos Monitor fulfills on behalf of its readers every day,” Publisher Keven Todd said. “Had the reporter not questioned the legality of the board’s actions and the structure of the agenda, the problem might have only been compounded over time. Part of a news operation’s role in a democracy is to raise these kinds of questions and inform the public.”

The complaint arose when the Los Alamos Monitor alleged the LAPS Board of Education changed the agenda for a meeting retroactively and that the board voted on pay raises during the meeting in question.

The Act however, states, “meeting notices shall include an agenda containing a list of specific items of business to be discussed or transacted at the meeting or information on how the public may obtain a copy of such an agenda.” The public notice had no mention of pay raises for certified and non-certified negotiated school employees nor did the agenda presented before the meeting.

The Act further states, “any meetings at which the discussion or adoption of any proposed resolution, rule, regulation or formal action occurs and at which a majority or quorum of the body is in attendance, and any closed meetings, shall be held only after reasonable notice to the public,” and “except for emergency matters, a public body shall take action only on items appearing on the agenda. For purposes of 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 loss to the public body.”

Even Board Member Melanie McKinley — who voted in favor of the increases — stated she was “not comfortable with the issues not being on the agenda” and said that Board Member Dawn Venhaus — who was absent from the meeting — would have likely wanted to attend the meeting in person or via phone had she known that pay raises were going to be voted on.

The school board hired the law firm McCuddy and McCarthy during the AG inquiry.

In a statement released this morning, Los Alamos school superintendent Gene Schmidt said, “When the agenda item on the budget occurred in May 2012, I thought the district was on sound legal grounds to act on the question of staff raises. But because the Monitor questioned this, I contacted our school attorneys and learned that the action should be corrected in order to meet the technical requirements of the OMA. That is why the Board called a special meeting on June 28, 2012 to address the problem, even before I heard from the Attorney General as to the complaint.

“The attorney general has now confirmed that the resolution adopted at that time resolves the OMA violation identified by the Monitor. The AG's office also notes a couple of other areas in which our OMA compliance needs to be tweaked. I will meet with the Board in a future work session to assure that each of these points are addressed promptly, either in our OMA resolution or bylaws, or in practice as needed.”

School board president Kevin Honnell said, “Last May, in the course of approving a salary increase for our teachers and staff, the School Board made an honest, well-intentioned mistake.  When this was brought to our attention, we corrected it at the first opportunity in June.

“The Assistant Attorney General’s finding was very helpful in pointing out the nature of our violation and the appropriateness of our subsequent corrective action, and will enable us to do a better job for our community going forward.”

Gwyneth Doland, executive director of the New Mexico Foundation for Open Government, also weighed in on the case.
"The people of Los Alamos deserve a clear window into the workings of their school board and we're disappointed to find that the window has been at times quite foggy," Doland said.

"It's vital that the public have access to clear, specific agendas for meetings, and that they know what's going to be discussed when the Board retreats behind closed doors. Afterward, the meeting minutes must accurately reflect what happened.

“A public body that is open and transparent in conducting business is one that earns—and keeps—the trust of the community. It is our hope that the School Board will learn from these mistakes and enjoy the confidence of its constituents.”

In her letter, Smith said she uncovered other OMA violations by the board that were not brought up in the original inquiry. Two involved an executive session and another said the May 24 work session minutes did not include the names of members in attendance and those absent. And yet another, which is not mandated by the OMA, the minutes of the May 24 and June 28 meetings did not state which board member seconded any of the motions made.

In summary, Smith wrote, “We trust that the board will take all steps necessary to ensure its future compliance with this law. Provided it takes those steps, our office will take no further action against the board at this time. We will, however, maintain the complaint in our files in the event future complaints suggest a pattern and practice of violations.”