The City of Las Cruces has released résumés and letters submitted by 11 government administrators in New Mexico and elsewhere who applied to be the next city manager.
But the city is withholding dozens other applications, claiming they are not public records.
The state’s top transparency advocacy organization, the New Mexico Foundation for Open Government, disagrees, and says all applications should be released.
The Mercer Group, the private firm Las Cruces hired to run its city manager search, had conducted “a preliminary screening of 51 applications” as of March 29, according to a letter the search firm sent to outgoing City Manager Robert Garza on that date. The letter was released to NMPolitics.net in response to a public records request.
The letter, which is signed by The Mercer Group’s president, James L. Mercer, was accompanied by 11 candidates’ applications, which you can find, along with Mercer’s letter, here.
Mercer was seeking feedback on which candidates the city wanted “to pursue further,” the letter states.
It’s clear the candidates expected confidentiality, and that Mercer intended to give it. His letter to Garza is labeled “personal and confidential,” and he wrote in the letter, “Several of the applicants have expressed the need for considerable confidentiality in the process so as to protect their current employment situation.”
Las Cruces Mayor Ken Miyagishima has said The Mercer Group told applicants their names would be confidential unless they were picked as finalists — and the city hasn’t yet named finalists.
But state law doesn’t allow such confidentiality. As NMPolitics.net reported earlier this month, a high-profile case involving the City of Farmington established in 2009 that the public has the right to see all applications for a city manager job in New Mexico.
NMPolitics.net filed the request under the state’s Inspection of Public Records Act (IPRA) to see all Las Cruces city manager applications after city officials interviewed three candidates several weeks ago but didn’t want to release their identities.
Learning about the Farmington case and NMPolitics.net’s IPRA request prompted Miyagishima to released the names of the three candidates the City Council had interviewed — Mike Gallagher, the manager for Lea County, N.M.; Ruth Osuna, assistant city manager for Brownsville, Texas; and Dave Strahl, former assistant village manager for Mount Prospect, Illinois.
At the time, Miyagishima said he would let the city’s lawyers decide whether to release any applications.
The city responded to NMPolitics.net’s records request on May 13 by releasing the 11 applications. In addition to Gallagher, Osuna and Strahl, the other eight whose applications were released are:
- Harry Burgess, the county manager in Los Alamos, N.M.
- David Dollahon, the assistant city manager and chief administrative officer for the City of Las Cruces.
- Charles “Chuck” McMahon, the assistant Doña Ana County manager.
- J.J. Murphy, the city manager in Hobbs, N.M.
- Jim Nichols, the former manager for Douglas County, Nev.
- Anthony O’Rourke, former manager for the city of Yakima, Wash.
- R. Scott Sensanbaugher, the public works director for the City of Rio Rancho, N.M.
- Veronica Soto, the City of El Paso, Texas’ Community and Human Development Department director.
Burgess, who Mercer described in his March 29 letter as “one of our better candidates,” withdrew his application after initially submitting it, the letter states. Gallagher withdrew his name from consideration after being interviewed.
What about the other 40 — or more, if additional applications have been submitted since March 29?
“… it is the opinion of the City Attorney that The Mercer Group itself is a private entity and not a public entity that is subject to IPRA,” David Aguayo, senior office assistant in the City Clerk’s Office, wrote in a May 13 response to NMPolitics.net’s records request. “The private documents gathered by Mercer in the fulfillment of their contract are not public records until they are delivered to the city.”
Which also explains why the city released the other 11 — they were included in the letter Mercer sent to the city on March 29, so the city had possession of them and believes they are subject to public inspection.
The Foundation for Open Government (FOG) disagrees with the city’s assertion that it doesn’t have to release applications The Mercer Group hasn’t handed over to the city. “Employment applications for public jobs are public records in New Mexico,” said Greg Williams, the FOG Board president and an attorney who helped litigate the Farmington case.
“A public entity shouldn’t be able to skirt that requirement by running the applications through a third party,” Williams said. “Also, the contract between the City and the search firm is not relevant. If the records are otherwise public, a contractual provision keeping them confidential is, in FOG’s view, unenforceable.”
The city’s contract with The Mercer Group requires the firm to follow all federal, state and local laws. IPRA, the state’s public records law, defines public records as “all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.”
In this case, The Mercer Group is arguably maintaining or holding the applications on behalf of the city, a public body.
In the 2012 New Mexico Court of Appeals case Toomey v. Truth or Consequences, the court ordered the town of T or C to release video recordings of public meetings made by a government contractor. The Court of Appeals also set guidelines judges should follow when considering whether documents a government contractor is holding are public records.
Those guidelines include considering whether the private entity is performing a function the government agency would otherwise perform, and for whose benefit the private entity is functioning.
In his letter to NMPolitics.net, Las Cruces’ Aguayo cited the Toomey ruling as justification for withholding the additional city manager applications.
“In reviewing the relationship between The City of Las Cruces and the Mercer Group, the City Attorney found insufficient evidence to conclude that Mercer Group meets the Toomey test,” Aguayo wrote. He didn’t go into detail.
In the Farmington case, the Court of Appeals said fears that a public search would discourage applicants — which Las Cruces officials have expressed in this instance — don’t warrant secrecy.
“…when, as here, the application is for a high-ranking public position, the public’s interest in disclosure outweighs the City’s concern that fewer people will apply, and, thus, disclosure is required,” the Court ruled.
In addition to releasing the 11 applications with Mercer’s March 29 letter and the city’s contract with The Mercer Group, the city provided one additional document to NMPolitics.net: An April 30 letter from Mercer to Miyagishima and city councilors that included a packet designed to help them prepare for interviews with Gallagher, Osuna and Strahl. That document also includes those three candidates’ applications.
The city redacted part of that document before releasing it because, according to Aguayo, it “includes copyrighted information.” The redacted information appears to be general guidelines and other advice to the mayor and councilors about conducting interviews.
The city chose not to name any finalists following those interviews, and to date has not named finalists.
Garza is retiring on May 27. Councilors have named Assistant City Manager Daniel Avila as interim city manager.