LAS CRUCES CITY COUNCIL COMMITTEE VIOLATED OPEN MEETINGS ACT

 [NOTE: This blog is the narrative statement in a formal complaint about Open Meeting Act (OMA) violations by the City of Las Cruces to the New Mexico Attorney General Raúl Torrez.  It is not an easy read; it is a detailed statement of alleged violations of Las Cruces city ordinances or New Mexico state laws.  In previous blogs, I have criticized City Council’s unwillingness to address major problems and considered incompetence and corruption as contributing factors to these problems.  By contrast, these violations indicate City Council’s willingness not only to violate city ordinances and state laws, but also to deceive the public in its representation of the purpose and duties of the Public Safety Select Committee (PSSC) and to shield the violations by secrecy.  Worth noting: when I twice asked Mayor Enriquez about the continued existence of the PSSC, he did not reply.]

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This narrative statement accompanies the state form for formal complaints about violations of the Open Meetings Act (OMA) by the City Council of Las Cruces, New Mexico.

 

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City Council created the Public Safety Select Committee (PSSC) as a committee which met only in closed sessions.  The PSSC anticipated Inspection of Public Record Act (IPRA) requests and apparently adopted a strategy to conceal any illegal conduct.  PSSC records subsequently disclosed do not reveal decisions made in violation of OMA, but secrecy precludes the discovery of a smoking gun.  However, the PSSC violated the city ordinance under which it was chartered, violated the terms of its charter, and violated certain OMA provisions for the conduct of non-public committees.  A key duty of the PSSC was to report what it learned or recommended to the full Council, but, since it never did so in meetings and has produced no records indicating such formal reports, it can have done so, if at all, only by communicating with Councilors in ways which would violate OMA, possible my a rolling quorum.  Under these circumstances, an investigation into the likelihood that the PSSC violated other and more serious OMA provisions is warranted.

 

Violations of the City Ordinance.  Under the Las Cruces Code of Ordinances; Part I-Charter; Chapter 2-Administration; Article 4-Boards, Commissions and Committees; Division 7-Select Committees; Sec 2-1101-Scope,

(a) Select committees may be established by the mayor or city council to provide the mayor and city council with information and advice on the goals and objectives stated in the city charter or the city's strategic plan. The membership, purpose, duties, and duration of the select committees shall be determined by the mayor or the city council and shall be made available to the public.

(b) If the mayor establishes a select committee, the city council shall be given written notice of the establishment of all select committees. This notice shall include the purpose for the select committee and the names of the members.

(c) The term of the select committee shall not exceed one year or the amount of time necessary to complete the specific established goals and objectives of the committee.

(d) The recommendations of a select committee shall not be binding and are subject to approval of the city council or the city manager in accordance with the city charter.

(e) The city manager may assign appropriate city staff or community members to a select committee for the purpose of providing information, recommendations, or subject-matter expertise. The select committee shall not include more than three members of the city council.

(f) Sections 2-187 through 2-190 are inapplicable to select committee members.

 

The then-Mayor Ken Miyagashima established the PSSC.  Initially, the membership, purpose, duties, but not the duration of the PSSC were made available to the public on the city’s website (https://onboard.las-cruces.org/).  Several years later, although the PSSC still met, its website entry was removed.  On 10 December 2020, the city council was given written notice of the establishment of the PSSC.  It met for three years, not one, from 2021 through 2023.  The PSSC had no “specific established goals and objectives.”  Instead, it addressed a wide range of issues: among others, domestic violence, homelessness, panhandling, shoplifting, vandalism, and some, like cannabis, little or not related to public safety.  It resolved none of them.

 

Violations of the PSSC Charter.  The charter of the PSSC partly paralleled the language of the ordinance and partly detailed its purpose and duties.

The Mayor has established the Public Safety Select Committee with the following membership, purpose, duties and duration:

The Public Safety Select Committee shall be comprised of no more than three City Councilors, the City Manager or their designee, the LCPD Chief of Police, the LCFD Chief, the City Attorney, City staff designated by the City Manager as needed and additional subject matter experts requested by the Committee as needed.  The Mayor has determined that council membership will be:

Mayor Miyagishima [later replaced by Eric Enriquez]

Mayor Pro Tem Gandara

Councilor Vasquez [later replaced by Councilor Tessa Abeyta]

The Public Safety Select Committee’s purpose is to improve the overall safety and quality of life of the community by providing recommendations to the City Council on safety initiatives, raising awareness of community safety concerns, and to serve as a mechanism for productive discussion on matters of public safety between the policy making body, individuals serving in the area of public safety and subject matter experts.

The duties of the Public Safety Select Committee shall include but not be limited to the following: (1) provide input, comment, or recommendations on proposed ordinances, programs, or initiatives involving public safety matters within the City; (2) provide recommendations to the City Council on matters of public safety; (3) provide information, recommendations, or assistance in the development and implementation of various existing and future public safety related programs; (4) encourage, collect, and present resident input regarding public safety service levels and priorities; (5) make recommendations concerning related department budgets and budget priorities.

The Public Safety Select Committee shall remain in place for one year and may be renewed annually.

 

The PSSC did not fully comply with these terms.  Membership complied with them.  No evidence shows that the PSSC achieved its purpose—impossible without “specific established goals and objectives”—or fulfilled its duties.  The city’s responses to IPRA requests for all relevant records through 2023 include no records of information, advice, or recommendations transmitted to city council.  Without providing them, the PSSC voided its primary means to “improve overall safety and quality of life” and limited its ability to raise awareness (whose?) of, or have productive discussions (with whom?) about, public safety.  The records reveal no effort to “encourage, collect, and present resident input” on anything.  In the website space for “contact” with the committee, no official is identified, and no number given.  The records reveal no action to formally work beyond one year.

 

Notably, the duty to provide support for the development or implementation of “existing and future public safety related programs” suggests PSSC’s operational involvement in city operations—a duty beyond the authority of such a committee.  Indeed, since the PSSC did not do what it was supposed to do, the question is whether it did what it was not supposed to do.

 

Violations of the Open Meetings Act.  Although PSSC violations of city regulations are not violations of OMA, they reveal a pattern of non-compliance with legal guidance and indicate deceptiveness in the disparity between PSSC statements of purpose and duties, and its actions.  Some discussions suggest new policies or imply directions to officials, in violation of OMA.  Its closed meetings violate OMA.  OMA makes exceptions for closed meetings on certain topics, but few, if any, of them cover PSSC topics.  To justify its closed meetings, PSSC’s internal agendas provide a bogus reference to city ordinances (LCMC Chpt. 1, Div. 6, Sec. 2-174, et seq).  However, the referenced ordinances do not address closed meetings.  Even so, the justification would be limited to and could not extend exceptions allowed by OMA, which takes precedence over local ordinances.  Moreover, the PSSC did not announce its meetings or publish its agendas.

 

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The secrecy surrounding the PSSC for three years raises several questions which suggest OMA violations as an answer.  First, why was secrecy necessary if the PSSC were merely gathering information on public issues and formulating recommendations on them for City Council?  Second, since three seems to be no evidence of the PSSC forwarding information or recommendations to City Council, what was the PSSC doing if not creating new policies or direction department actions?  Third, why did the PSSC not focus on one problem and work to solve it?  Third,

 

One hypothesis for the creation and continuation of the PSSC, largely in secret, is that city council wanted to avoid public discussions of, and decisions on, contentious issues, and chose to divert them to a forum excluding the public for discussions leading to decisions and then to directions to senior city officials for dealing with those issues.  In short, City Council wanted to avoid transparency and accountability by “outsourcing” its duties and responsibilities to what became, in effect, a management committee.  The necessary secrecy required OMA violations.

PARDONING BIDEN AND INDICTING HIS DETRACTORS

On 13 June and repeatedly thereafter, President Joe Biden promised not to pardon his son Hunter for his gun- and tax-related crimes or to commute the sentences for his convictions.  Biden said he wanted to restore integrity to the office by not using his office to benefit his family.  Then, on 1 December, he broke that promise.  Almost at once and ever since, pundits of both political parties have deplored his broken promise though some have also expressed sympathy for his decision.

 

Pundits have several basic criticisms of Biden’s decision.  One is the allegation that, by breaking his promise to the American people, Biden lied.  To have lied, Biden would have had to know when he made his promise that he would not keep it.  But there is no reason to believe that he anticipated in June pardoning his son in December.  Not until September did Hunter plead guilty and, and not until December did he face sentencing, possibly involving some, but not much, prison time.  There is no reason to think that either father or son would not have accepted the decisions of the court.

 

Partisans on the right and cynics on the left and right retrospectively impugn Biden’s motives.  They claim that his alleged motive for lying was a political one, a pretense that he embraced higher ethical standards of public office than his predecessors or current opponent who had pardoned family members.  However, those who can separate their partisan politics from their moral judgments or suppress their cynicism about politicians know that Biden has high ethical standards.

 

The criticism that Biden lied rests on two misconceptions.  His promise cannot be a lie because promises are not truth-function propositions; instead, they are commitments to do or not do something in the future.  Moreover, a promise cannot be made knowingly “false” –that is a lie—retroactively by an unforeseen future action.

 

The other basic criticism of Biden’s decision is that promises made must be kept without exception.  Yet everyone knows that promises are not kept for good reasons.  “Hey, kids, I know that I promised a spring vacation at Disneyland, but a crisis at work means that we have to go at another time.”  When Biden made his promise, he hoped or believed that he would be re-elected.  He could not know whether Hunter would be convicted, or whether or to what extent he would receive a prison sentence.  When he broke it, he knew that Trump had won, had threatened revenge on the “Biden crime family,” and had nominated Pam Bondi as Attorney General to implement it.  Given that the charges and likely penalties were unusual for Hunter’s gun- and tax-related crimes, Biden had reason to fear for his son, to believe that Bondi would seek additional penalties.  These concerns arose long after Biden’s promise and provided a reasonable basis for breaking it.

 

Three things trouble me about the criticisms of Biden’s pardon.  One is that they disregard the definitions or features of lies and promises.  Nothing which I have argued is abstruse.  Another is that they disregard the personal and political contexts in which Biden made and broke his promise.  He did nothing unreasonable or unethical in dealing with changed circumstances.  Finally, since the criticisms are unfounded, my effort to understand them leads me to one conclusion: after the election outcome, Democrats are venting their disappointment and frustration with their diminished leader.  Biden deserves better than unfounded criticisms impugning his ethics and insinuating flaws in his character.  He is a good man and has been a good president.  It does no one any good to say otherwise. 

A CONSERVATIVE COLUMNIST OFFERS THE USUAL CLICHÉS

        As The Bulletin under the leadership of Algernon D’Ammassa upgrades the paper, both in print and on its website, it degrades itself in its selection of Ms. Shawna Pfeiffer to be its editorial booster of all things conservative in her column “Road Less Traveled.”  Its title is odd since her columns offer little more than political clichés expressed in verbal clichés—ironically, instances of roads well traveled.  Pfeiffer seems oblivious that clichés of any kind are usually symptomatic of an absence of thought and of sloppy writing.

For example, in her 3 December column, she writes, “Progressive extremists wish to continue the same old tired mantra of catering to the criminal in the name of social justice.”  “Progressive extremists”—are there any progressives who, to conservatives, are not extremists?  If there are, are their numbers large or small; is she talking about a sizable population or a tiny but vocal faction?  What does she mean by “catering to the criminal”?  If Progressives wish to continue arguing for social justice, why should they not?  Does she have any idea what they mean by “social justice,” and, if so, does she object to it and have reasons for doing so?  We shall never know because Pfeiffer expresses vague ideas and uses disparaging words which her political soulmates use when they refer to the views of those whose views differ from theirs.  She expects only those readers who agree with her to know what she means—in which case, her columns are themselves mantras preached or sung to the choir.

 

Recently, her columns have urged support of the Las Cruces Police Department, as the thin blue line of defense against “the crime taking over our community.”  What exactly is “the crime” doing so?  And on what basis does Pfeiffer, who admits to taking all of eight months to get up to speed on police issues, say it is doing so?  Indeed, what does it mean to say that “crime [is] taking over our community?  Are criminals sitting in the seats of members of City Council?  Have thugs taken over the police department?  Are gangs patrolling streets?  Are citizens cowering in their homes because they are afraid to send their children to school, to go to work, to venture out shopping?  What Pfeiffer seems to have mastered in eight months in town is hyperbolic clichés and pejorative language.

 

In her capacity as The Bulletin’s new conservative editorial voice, Pfeiffer, has written a number of columns on her heroes in a thinning blue line of dedicated but underappreciated heroes.  The clichés about police officers who, despite low pay, degraded facilities, and little public appreciation, put their lives on the line all working hours (and some off-duty hours as well, such is their dedication) guide her editorials.  As a result, her columns ignore the facts of local experience, notably, the Christopher Smelser killing of Antonio Valenzuela, the Jared Cosper killing of Amelia Baca, or the Felipe Hernandez killing of Teresa Gomez—and the nearly $30,000,000 paid in settlements.  Pfeiffer writes that LCPD officers put their lives on the line every day and cites in support the one and only killing of an on-duty LCPD officer in LCPD’s entire history as proof.  Missing is any comparative contrast with these three wrongful-death police killings of Las Cruces civilians in a 4-year period from 2020 to 2023.  Citizens put their lives at risk more often than LCPD officers put theirs on the line.  (See, too, The Independent’s story on police violence in New Mexico, which begins with the Gomez case and costs.)

Not only is her one-sided perspective unsophisticated and not sophisticated on that one side, but her vision is also inconsistent.  One moment, citizens do not appreciate the police; the next moment, “we love you and appreciate you and are so very thankful for your continued diligence in holding the line for our safety.”  “We” are likely the loving and appreciative people of her political ilk just as OIR reported wonderful relations between the police and the public on the police telling of it.  Pfeiffer cannot be faulted for not knowing that former Deputy Police Chief Miguel Dominguez told City Council in open session in 2020 that the public does not trust the police.  (No councilor asked why.). But if she had talked to citizens at random and perhaps not read OIR annual reports, she might have learned that many Las Cruceans are not among the “we.”

 

What to make of a columnist whose columns have talking points but lack the constituents of cogency; harvest the chaff of clichés but do not winnow the facts; exaggerate problems and derogate opponents; and show fundamental inconsistencies about public attitudes toward the police?  Not much, is the right answer.  The real question is why D’Ammassa hired Pfeiffer.  In view of the good which he has been doing The Bulletin since he replaced Richard Colthorp, my guess is that she is a necessary sop to the publisher.  If so, she probably cannot be discharged, but she can be ignored.

 

That said, D’Ammassa (or his publisher) is right to want a conservative columnist to ensure a voice to balance the greater attention which Progressive views get in Las Cruces.  For reasons unclear to me since I arrived in town nearly two decades ago, The Bulletin and the Sun-News have been unable to enlist as a regular columnist, with the exception of Jim Harbison, a writer who can present a conservative perspective cogently.  The need is great.  My hope is that D’Ammassa can identify and attract a capable conservative to his staff and replace his recent hire.