MPO advisory committee receives New Mexico Open Meetings Act briefing; counsel warns against "rolling quorums" and vague agenda language

Sergio Estrada, an attorney with the Kemp Smith law firm, told the Mesilla Valley MPO Bicycle and Pedestrian Facilities Advisory Committee that the New Mexico Open Meetings Act exists to ensure the public gets “the greatest possible information regarding the affairs of government.” The presentation, delivered during the committee’s meeting (date not specified), reviewed when the law applies, how it is enforced and common pitfalls for advisory bodies.

Estrada said courts and the New Mexico attorney general resolve any ambiguity in favor of openness and that members of the public, the district attorney or the attorney general’s office can investigate alleged violations. “If an individual were to be successful in bringing an action in a court of law, they could be entitled to attorney’s fees,” he said.

The presentation identified several recurring risks for committees: rolling quorums created by sequential private contacts among members, insufficiently specific agenda descriptions, and failures to post the required notice. Estrada warned that a series of phone calls or emails that produces a consensus among a quorum can itself constitute a meeting subject to the law. “Rolling quorums are a violation of OMA because they are not properly noticed public meetings,” he said.

Estrada summarized notice and minutes requirements: agendas must give “reasonable specificity” so an interested person could tell what will be discussed; minutes must record date, time, place, members present and absent, substance of proposals considered and any decisions made. He cited recent AG guidance that found descriptions such as “limited personnel matters” or “discussion of the purchase, acquisition, or disposal of real property” insufficiently specific when they lacked location or subject details.

On remote participation, Estrada said the law permits it when attendance in person is “difficult or impossible,” but that the statute and AG guidance favor in-person attendance where feasible. Andrew Ray, MPO staff, noted the MPO’s historical practice of limiting voting remote participation to one voting member to avoid escalating virtual participation into a de facto majority. Estrada added that remote presenters are permissible provided the public can hear and view them.

Committee members asked about attendance and removal. Estrada explained that the body’s bylaws and the Open Meetings Act both play roles; he agreed to confirm whether a slide’s wording that a member “may be removed from the policy board” should instead have referred to the BPAC and recommended staff correct any bylaw typos.

The presentation closed with a reminder that violating the Open Meetings Act can expose individuals and bodies to enforcement; Estrada said the statutory penalty is a low-level misdemeanor and noted the practical remedy is to resolve doubts in favor of transparency.

Staff follow-up: MPO staff said they will check and, if needed, correct the bylaws language and consult counsel when in doubt about notice or quorum questions.