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Oropesa questions if phone calls violated Open Meetings Act

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A Roswell City Councilor on Thursday questioned whether telephone conversations among other city councilors violated the state’s open meetings act. The city attorney, when brought into the meeting, said he didn’t think it was a violation but advised “it was on the cusp.”

Councilor Juan Oropesa questioned the discussions initiated by Councilor Jacob Roebuck prior to Thursday morning’s Finance Committee workshop to discuss proposed projects that could be funded by the $11.7 million the city will receive from the American Rescue Plan Act.

City Manager Joe Neeb first presented a list of potential projects for the funds at a July meeting of the Finance Committee. He presented a chart of the projects at Thursday’s workshop that contained more detailed justification of the use of funds, which are restricted to projects directly affected by the COVID-19 pandemic.

The list presented Thursday also included a column labeled “Councilor Group Recommendation” for funding amounts. Those recommendations came from Roebuck who had spoken individually with other councilors, Neeb said in response to a question from Councilor Jeanine Best.

Best is not a member of the Finance Committee but attended the meeting at City Hall.

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“Maybe ‘group’ is probably a little bit too formal,” Roebuck said. “I talked to several counselors individually and not actually in a group.”

Roebuck said he spoke with Councilors Jason Perry and Margaret Kennard. He said he also might have spoken with Councilor Daniel Lopez.

“It wasn’t anything formal but I was just trying to get a sense of what people liked and didn’t like and I just brought that information back to Joe,” Roebuck said.

Oropesa said Roebuck’s conversations included three members of the Finance Committee — Roebuck, Perry and Kennard — which makes up a quorum of the committee.

“If they were talking, they don’t necessarily have to be together, but that is a violation of the Open Meetings Act,” Oropesa said.

The New Mexico Attorney General’s Office Open Meetings Act Compliance Guide addresses the concept of a “rolling quorum,” saying it is a violation of the act.

“A quorum may exist for purposes of the Act even when the members are not physically present together at the same time and place. For example, if three members of a five member board discuss public business in a series of telephone or email conversations, the discussion is a meeting of a quorum,” the guide reads. A rolling quorum is a violation because it constitutes a meeting outside a properly noticed public meeting, the guide says.

Neeb, Kennard and Perry, who is chair of the Finance Committee, said they did not believe the conversations circumvented the Open Meetings Act because no decisions or collaborations were made.

“I never at one time said I agree with any of these things. I offered no information to any of these items whatsoever,” Perry said.

Oropesa said calling the second set of funding a “Councilor Group Funding” suggested there was a result from the discussions.

“Somebody came up with these figures, so that tells me that their information was taken into account. That is a violation of the Open Meetings Act, and that’s the reason that we should have had it here instead of going to each individual counselor,” he said.

City Attorney Parker Patterson was brought into the meeting and was briefed by Perry.

“It’s on the cusp there, I’ll say that,” Patterson said. “I agree with you the Open Meetings Act really concentrates on you can’t make any decisions except in an open meeting, however, it’s also true that in order to discuss public business you should call an open meeting if you’re going to have a quorum discussion.

“So while I don’t think it’s a black-and-white violation, I think it’s not a good idea to do that, especially because it’s very difficult to draw the line between taking action and everybody deciding what they want to do is effectively taking action, even if you don’t have a formal vote. So the safer practice is just not to do that,” Patterson said.

The Finance Committee workshop was for discussion of the proposed projects. No action was taken during the meeting.

City/RISD reporter Juno Ogle can be reached at 575-622-7710, ext. 205, or reporter04@rdrnews.com.

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