Haussamen Publications, the company that publishes NMPolitics.net, filed a lawsuit Tuesday seeking the release of dozens of Las Cruces city manager applications that are being kept from the public.
The N.M. Court of Appeals, in two separate cases, has made clear that all applications for city manager jobs in New Mexico are public record and set guidelines for when government agencies can keep documents held by a private contractor secret.
And yet, while the City of Las Cruces has released 11 city manager applications, it says it can keep secret dozens more because they are held by the private contractor running the search – The Mercer Group – and not by city government.
NMPolitics.net disagrees. Its complaint names the City of Las Cruces and The Mercer Group as defendants and seeks the release of all city manager applications held by either entity.
“The City of Las Cruces can’t avoid public disclosure and scrutiny by outsourcing facilitation of its city manager search,” said Heath Haussamen, NMPolitics.net’s editor and publisher.
The mayor and city councilors interviewed three applicants for the city manager job several weeks ago. City officials initially said they didn’t intend to release those candidates’ identities, citing concerns that public disclosure could discourage qualified applicants.
But state law doesn’t allow confidentiality. As NMPolitics.net reported on May 4, the Court of Appeals ruled in a 2009 case against the City of Farmington that the public has the right to see all applications for a city manager job in New Mexico. NMPolitics.net filed a formal request under the state’s Inspection of Public Records Act on May 4 seeking all Las Cruces city manager applications received by the city or The Mercer Group.
Mayor Ken Miyagishima, after learning about the Farmington case and NMPolitics.net’s records request, released the names of the three candidates who were interviewed. He said he would leave the decision on whether to release their applications – and applications submitted by dozens of other people – to the city’s lawyers.
In mid-May the city released 11 applications, including the three submitted by the candidates who were interviewed. At least 40 other applications weren’t released.
“… 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.”
New Mexico’s top transparency advocacy organization, The N.M. Foundation for Open Government, disagrees. “Employment applications for public jobs are public records in New Mexico. A public entity shouldn’t be able to skirt that requirement by running the applications through a third party,” said Greg Williams, the FOG Board president and an attorney who helped litigate the Farmington case.
The other relevant Court of Appeals case is 2012’s Toomey v. Truth or Consequences. In that case, 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 held by a contractor 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. The City of Las Cruces cited the Toomey ruling as justification for withholding city manager applications held by The Mercer Group, but it didn’t elaborate.
NMPolitics.net believes the guidelines set by the Toomey ruling actually require the release of applications held by The Mercer Group.
As to fears expressed by some officials in Las Cruces that disclosure of applications would discourage qualified people from applying, the Court of Appeals ruled in the Farmington case that when an 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.”
Haussamen said NMPolitics.net is willing to have – and even help facilitate – a public discussion on whether state law related to the release of city manager applications should be changed.
“But current law requires disclosure,” Haussamen said. “We won’t sit idly by and let the city break the law.”
The city manager search is ongoing. Officials have not named finalists for the position. Robert Garza retired from the job last week. Assistant City Manager Daniel Avila is serving as interim city manager.
The lawsuit was filed in the Third Judicial District Court in Las Cruces. NMPolitics.net is seeking attorney’s fees, court costs, and damages. The news organization is represented by Las Cruces attorney C.J. McElhinney.