Confidentiality rule passes

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Council: What happens in closed sessions not for public banter

By Arin McKenna

Councilor Vincent Chiravalle caused consternation among his fellow council members when he used an interview on a local radio station to spell out particulars of an agreement between North American Development Group (NADG) and Smith’s/Kroger which had been discussed in a closed session.

Council Chair Sharon Stover had announced a special council session to discuss the Trinity Site during a council meeting the previous evening. But details about NADG’s desire to assign its lease to Smith’s/Kroger were not to be released until the Los Alamos Public School (LAPS) board and administration had been informed. LAPS will be the main beneficiary of the Trinity Site lease revenue.

In a statement, Chiravalle claimed he had not breached confidentiality and defended his actions.

“The council chair announced publicly on Sept. 11 that there would be a special public meeting on Sept. 24 for the council to take action on the Trinity site, and only then did I speak about the agenda of this special public meeting. If the council was not ready for a public discussion then it should not have scheduled a special public meeting. Why was the agenda of this special public meeting a secret?”

Stover issued a statement responding to Chiravalle’s claims. It reads,

“The Council recognizes that it is already difficult to attract investment in this community; it is vital that all parties recognize our county government as a trustworthy partner. All along this process with the Trinity Site, the council has made a good faith effort to do this professionally.

“The agenda for the special meeting was never a secret. Anyone who has been involved in sensitive negotiations understands the importance of finalizing the details prior to public announcement. One of those details was fully informing our partners, the School District. Council did not wish or try to keep any information from the public that is why the special meeting was scheduled.”

In accordance with the New Mexico Open Meetings Act, staff publishes detailed agendas on the county’s website a minimum of 72 hours in advance of its meetings. Stover also told the Los Alamos Monitor that the information was not to be released until after the school board had been informed, and that Chiravalle was aware that it was still confidential.

Councilort Mike Wismer also responded to Chiravalle’s statement:

“A review of the tape from the KRSN interview clearly indicates that Councilor Chiravalle revealed specific details about the proposed assignment of the lease agreement from NADG to Smith’s that was discussed in numerous closed sessions. He knew full well that those discussions were confidential…Having participated in many of the closed sessions, he was acutely aware of the sensitivity of the dialogue and the need for confidentiality. He chose to breach that pact.”
Subsection H of the Open Meetings Act provides exceptions for issues that require confidentiality, such as collective bargaining, contract negotiations and the “discussion of the purchase, acquisition or disposal of real property.”

The incident prompted Wismer to propose a change to the council rules regarding councilor behavior, which was adopted by a 6-0 vote on Tuesday.

“It may be politically expedient to say the public has a right to know, but the law does protect certain discussions and dialogues as confidential, and I believe we should honor that and honor the law,” Wismer said.

According to Wismer, a local small business owner was in negotiations with NADG to lease retail space. Negotiations stopped after the premature revelation, resulting in the loss of $4,000 in legal fees the owner had already invested.

“The confidentiality of negotiations of contracts is essential, especially as it may involve several entities who may not be present during the actual closed meeting, and have to be contacted separately. So when a leak happens before the other parties have had an opportunity to learn what’s been discussed in our closed meeting and have their closed meeting, it really throws things off and it gives the county an appearance of not being very responsible or trustworthy,” Councilor Frances Berting said in supporting the motion.

Vice Chair Geoff Rodgers stressed the importance of closed sessions. “I think it’s important to realize that everything we do is governed by State law, and it’s the open meetings act. We comply with that and I think council has been very good about that,” Rodgers said.

“The council rules that we’re amending tonight are subject to State law and comply with State law. I want to make sure that we don’t leave the impression with the public that we’re trying to write a rule to get around the State law. We want to be transparent and we make every effort to be transparent, but there are certain things we have to pick and choose the proper time to be transparent so that the confidentiality of other parties involved are respected as well.”

Chiravalle voted for the motion, while objecting to the characterization of his actions.

‘I don’t object to this motion. I think it’s important for us to realize the great importance of confidentiality in local government, and I don’t object at all to adding this emphasis to our existing county rules,” Chiravalle said.   
In a statement after the council meeting, Wismer said. “I brought it up simply because I believe we need to nip it in the bud as quickly as possible and set the stage for two or possibly three new councilors and make sure that our rules are clear and that there’s no misunderstanding.”

“One thing that concerns me is what the impression of the local government is from the local business or any business. If we’re going to deal in negotiations that oftentimes reveal proprietary information that they don’t want out for other competitors to know, and so they expect that if there is confidentiality, that we maintain it.

“It’s very disconcerting when something like that gets out. Although I’ve not been in favor of kicking the Trinity Site to a different developer, I wanted to make sure that they had every opportunity to explore every possibility they could, and keep our conversations as confidential as possible until they got to the point where they were ready to say, ‘No more.’ And to hear it on the radio the very next morning after a closed session was somewhat disconcerting."

Chiravalle is running for re-election this year.

Rule governing council members
Recognize the importance of county business being open to public scrutiny and that the business of the council is generally public as required by law.
However, the law also allows closed meetings when the public conduct of governmental business could put the public’s interest at risk by jeopardizing sensitive negotiations or chilling the necessarily frank discussion needed to reach certain decisions.
The statutes provide carefully defined instances in which council may conduct its business in closed session. In order to protect the information provided during closed sessions and to facilitate the collegiality in which the council must function to do the best job it can for the public, individual councilors are expected to respect the confidential nature of all information and discussion taking place during closed sessions and further are expected to refrain from public comment about closed sessions.