The City of Las Cruces is digging in its heels on its assertion that the public doesn’t have a right to see city manager applications that are in the hands of a private company running the job search.
In doing so, the city is essentially arguing that government agencies can outsource some functions to avoid public disclosure and scrutiny, NMPolitics.net believes.
The city’s defense came in a motion filed Wednesday asking for the dismissal of a lawsuit NMPolitics.net filed that seeks the release of dozens of city manager applications held by a private search firm, The Mercer Group. NMPolitics.net alleges that the city is in violation of the state’s Inspection of Public Records Act (IPRA) for not releasing the applications. The city disagrees.
“The City has no legal mechanism under IPRA to compel the divulging of private information held by an independent contractor,” Deputy City Attorney Robert G. Cates wrote in the city’s motion seeking dismissal of the lawsuit.
As an alternative to dismissal, the city requests that Third Judicial District Judge James T. Martin grant a summary judgment in favor of the city.
The N.M. Court of Appeals ruled in 2009 that state law requires the release of all applications for a city manager position. The city isn’t disputing that Court of Appeals ruling. It has released 11 manager applications The Mercer Group provided to the city.
The Mercer Group, acting as the city’s contract search firm, has received dozens of other applications it hasn’t turned over to the city — and the city hasn’t provided to NMPolitics.net. If the city was running its own search, those applications would also be in its possession and arguably public records based on the 2009 Court of Appeals ruling.
Allowing the city to avoid a clear state law by outsourcing administration of its city manager search sets a dangerous precedent, NMPolitics.net contends.
“What’s next? Can a district attorney outsource an investigation into an officer-involved shooting so he or she can clear the officer of wrongdoing without showing the public the evidence to prove the shooting was justified?” NMPolitics.net editor and publisher Heath Haussamen asked in a recent commentary. “No. The city’s action can’t be allowed to stand.”
A second Court of Appeals case, 2012’s Toomey v. Truth or Consequences, is relevant to NMPolitics.net’s lawsuit. 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 also set guidelines for determining whether documents held by a contractor are public records.
Those guidelines direct governments consider factors including the level of funding for the contractor’s work, whether the contractor is performing a function the government agency would otherwise perform, and whether the contractor’s work takes place on publicly owned property.
NMPolitics.net believes those guidelines require the release of the city manager applications, but the city takes the opposite stance. Las Cruces contends its contract with The Mercer Group meets only two of the nine factors in the Toomey test. It says the Court of Appeals ruling doesn’t mean that the work of every government contractor is subject to public inspection.
The purpose of the Toomey test is “to determine if sufficient contacts between private entity and public entity exist such that the activity of one is necessarily the activity of the other,” the city stated in its motion to dismiss NMPolitics.net’s lawsuit.
Though job searches are normally conducted by city staff, the city outsourced this task to avoid a conflict of interest in staffers helping select their next supervisor, according to an affidavit from recently retired City Manager Robert Garza, which was included with the city’s filing.
The Mercer Group’s duties included only referring to the city applications that, “in the professional judgment of The Mercer Group, represent those candidates deemed to have skills and personality traits most closely aligned with the expectations of City Council,” Garza’s affidavit states.
Public records are defined in IPRA as all records “that are used, created, received, maintained, or held by or on behalf of any public body and relate to public business.” NMPolitics.net maintains that The Mercer Group has received city manager applications on behalf of the city that meet IPRA’s definition of public records.
NMPolitics.net has also named The Mercer Group as a defendant in its lawsuit. The company has until Tuesday to file its response. NMPolitics.net must file a response to the city’s motion to dismiss in the next two weeks.
The city has requested a hearing before Judge Martin on its motion to dismiss.