In December 2024, the Office of the Attorney General (OAG) received
my complaint about a Las Cruces City Council committee, the Public Safety
Select Committee (PSSC), with its three city councilors, operating in secret
for years. OAG directed my complaint to
the Government Counsel and Accountability Bureau (GCAB), which took my
complaint so lightly that it assigned it to an “Honors [read: entry-level] Attorney”
Isabelle Lopez. Her flaccid questions
elicited anodyne and evasive answers from Las Cruces City Attorney Brad
Douglas; Ms. Lopez accepted them at face value and dismissed my complaint. When I criticized her cursory handling of my
complaint, the GCAB reassigned it to Rebecca M. Guay, GCAB Deputy Director, who
ratified Ms. Lopez’s dismissal in October 2025.
Meanwhile, in May 2025, I notified FOG of my complaint to the OAG. Executive Director Christine Barber was
impressed with my complaint and the amount of evidence which I had to support
it. That evidence resulted from my
Inspection of Public Record Act (IPRA) request which City Clerk Christine
Rivera, advised by then City Attorney Linda Samples, resisted until my lawsuit
forced the release of (presumably) all relevant records unredacted and a
$95,000 settlement in August 2024. For
the next year, FOG thoroughly investigated my complaint in light of my evidence
and other evidence which it uncovered. In
May 2026, FOG concluded its investigation with a seven-page letter to the four
city councilors who sat on the PSSC, with copies to current Council members,
Mr. Douglas, and Ms. Rivera. At the same
time, FOG sent the OAG a copy of this letter and a more detailed statement with
abundant documentary evidence to recommend a re-opening of my complaint.
I have some hope that AG Torrez will re-open my complaint. If he does, he runs two risks. One, he might offend the political
establishment by investigating two current candidates: Gabe Vasquez (D) for
Congress and Ken Miyagishima (I) for governor.
Two, he might offend staff by reversing the previous dismissals of my complaint
by two GCAB lawyers. However, if he does
not re-open my complaint, he runs the risk of appearing to be protecting
politicians of his party and not to be taking open government seriously. FOG’s exhaustive analysis suggests egregious
violations of open meeting provisions in local ordinances and state laws. The need to pursue these violations, repair
the damage, and punish the perpetrators is great.
So that interested readers can judge for themselves, I provide
copies of Douglas’s replies and FOG’s letter, which summarizes the alleged
violations. Obviously, these included
documents make my blog very long. I add
concluding remarks after these next two sections.
• •
• • •
Douglas’s
replies to OAG queries (my typescript of the pdf file):
Thank you for your communication dated May 1, 2025, regarding the
subject matter above [Open Meeting Act Complaint]. In the interests of cooperation and
transparency, I will answer your inquiries to the best of my ability. To be candid, I agree with your initial
assessment that several of the complainant’s allegations fall outside the scope
of the Open Meetings Act (“OMA”) but will do my best to assist you with a
determination as to whether the Public Safety Select Committee meetings were
properly closed to the public. I have
conferred with the City Clerk (the city’s records custodian) along with other
city officials to answer your inquiries to the best of my ability. Below are the City’s enumerated responses:
Request No. 1: Please confirm or deny, and provide any and all
documentation, that the purpose and duties of the PSSC was [sic] only to
provide input, comment, or make recommendations to the City of Las Cruces City
Council.
Answer: It is the City’s position
that the purpose of the PSSC was only to provide input, comment, or make
recommendations to the City Council.
Attached please find the agenda for the very first PSSC meeting, taking
place on July 21, 2021. The agenda
references the authority and scope of the PSSC, pursuant to L.C.M.C Sec.
2-1101, and paragraph A(1)(d) states that, “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.”
Also attached, please find an email from the City’s chief
administrative officer, stating that the Mayor determined that council
membership would be Mayor Miyagishima, Mayor Pro Tem Gandara, and Councilor
Vasquez. Please note that a quorum of
the city council was never present for any of these meetings.
Request No. 2: Please confirm or deny, and provide any and all
documentation, that the PSSC did not make any decisions, or take any final
action, on behalf of the City of Las Cruces City Council.
Answer: After a records check of all resolutions and ordinances during the
relevant time period, I have found no actions taken by the PSSC on behalf of
the City Council. Upon information and
belief, the PSSC never made decisions or took final action that would have been
within the. purview of the City Council.
Request No. 3: Please confirm or deny, and provide any and all
documentation, that the PSSC did not formulate recommendations that were
binding in any legal or practical way on the City of Las Cruces City Council.
Answer: After a records check of the relevant time period, I have found no
evidence that the PSSC made any presentation to City Council. In any event, even if the PSSC had made
presentations, these recommendations would not have been binding pursuant to
L.C.M.C. Sec 2-1101(d), which states that, “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.”
Request No. 4: Please confirm or deny, and provide any and all
documentation, that the PSSC did not establish policy for the City of Las
Cruces City Council.
Answer: Please see the City’s response to Request No. 3. There is no documentation that the PSSC ever
established policy on behalf of the City Council.
Request No. 5: Please provide the names of members who served on
the PSSC during 2020, 2021, 2022, and 2023.
Answer: Upon information and belief, in 2020 the membership of the PSSC
included Councilor Gabe Vasquez, Mayor Pro Tem Kasandra Gandara, and Mayor Ken
Miyagishima. When Councilor Vasquez left
office in 2021, he was subsequently replaced by Councilor Tessa Abeyta. The rest of the council membership remained
the same thereafter. Other members
included former police chief Miguel Dominguez, former fire chief Jason Smith,
former city Manager Ifo Pili, former city attorney Jennifer Vega, and for a
brief period in 2023, former city attorney Linda Samples.
Request No.6: Please provide the names of members who served on the
City of Las Cruces City Council during 2020, 2021, 2022, and 2023.
Answer: Please see City’s answer to Request No. 5 (above) with regard to
members of the PSSC who were members of City Council.
Please let me know if the information I have provided answers all
of your questions. In the event that any
of my responses are unclear and/or unresponsive, please let me know as soon as
possible so that I may clarify. If you
should need any supplementary information, I would be happy to provide it if I
can. I hope you are doing well.
• •
• • •
FOG’s
letter:
RE: Violations of the Las Cruces Municipal Code and Open Meetings
Act
Dear U.S. Rep. Gabriel Vasquez, former Mayor Ken Miyagishima,
former City Councilor Kasandra Gandara, and former City Councilor Tessa Abeyta:
I write to provide notice of
multiple violations of the Las Cruces Municipal Code and the New Mexico Open
Meetings Act (“OMA”), NMSA 1978, § 10-15-1 et seq., which occurred between 2020
and 2023 while you served on the City of Las Cruces Public Safety Select
Committee (PSSC).
The violations include, but are not
limited to, the following:
1.
Violation of Las Cruces City Code §
2-IV-7, Sec. 2-1101(B);
2.
Violation of Las Cruces City Code §
2-IV-7, Sec. 2-1101(A), and Section 10-15-1(B) of the Open Meetings Act by
Operating as an Exempt Committee
3.
Violation of Section 10-15-1(A) of
the Open Meetings Act by Conducting Public Business Through Closed-Door Votes;
4.
Violation of the Open Meetings Act
Through the Use of a Closed Committee to Control Public Policy Discussions;
5.
Violation of Section 10-15-1(B)
Through the Use of Committees to Circumvent OMA; and
6.
Failure to Provide Public Notice and
Permit Public Attendance.
Background
On January 6, 2020, the Las Cruces
City Council unanimously amended Ordinance 2908 to revise the requirements
governing “select committees,” which “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.” [LCC § 2-IV-7, Sec. 2-1101].
On December 20, 2020, the City
Council received written notice from Mayor Ken Miyagishima establishing the
Public Safety Select Committee. The notice stated that the committee would
include Mayor Miyagishima, Mayor Pro Tem Kasandra Gandara, Councilor Gabriel
Vasquez, the city manager, and the city attorney. Additional participants
included the Chief of Police, the Fire Chief, and other city staff. In 2022,
Councilor Vasquez was replaced by Councilor Tessa Abeyta.
According to PSSC agendas, the final
meeting of the committee was November 10, 2023.
Violation of Las Cruces City Code § 2-IV-7, Sec.
2-1101(B)
Under the Select Committee
Ordinance, the mayor was required to provide written notice to the City Council
upon establishment of the PSSC. The ordinance expressly states: “if the mayor
establishes a select committee, the city council shall be given written notice
of the establishment.” [LCC § 2-IV-7, Sec. 2-1101(B)].
Substantial evidence indicates,
however, that the PSSC existed and operated months — and possibly years —
before such notice was provided to the City Council, and that it was previously
referred to as the “Community Mitigation Committee” or “Public Safety
Committee.”
During the twelve months preceding
the committee’s formal establishment:
·
Mayor Miyagishima, City Attorney
Jennifer Vega-Brown, and Mayor Pro Tem Gandara referenced the PSSC by name on
ten occasions during four separate City Council meetings and indicated that the
committee was already operational;
·
City staff, Mayor Miyagishima, Mayor
Pro Tem Gandara, and Councilor Gabriel Vasquez participated in thirteen email
chains referencing the PSSC; and
·
City Attorney Vega-Brown included in
a PowerPoint presentation to the City Council the statement: “allow Public
Safety Select Committee the opportunity to vet options.”
These references occurred despite
the fact that the PSSC had not yet been formally created.
Further, campaign materials
published in 2023 by mayoral candidate Kasandra Gandara stated: “The City of
Las Cruces established its Public Safety Select Committee in December 2015 to
address issues related to safety and well-being in our community.” If accurate,
this would mean the committee had been operating for approximately six years
before either the City Council or the public received formal notice of its
existence.
Violation of Las Cruces City Code § 2-IV-7, Sec.
2-1101(A), and Section 10-15-1(B) of the Open Meetings Act by Operating as an
Exempt Committee
The Select Committee Ordinance
authorizes select committees solely “to provide the mayor and city council with
information and advice.”
This limitation mirrors longstanding
guidance from the New Mexico Attorney General regarding committees exempt from
OMA. According to the Attorney General, an exempt committee is one that:
1. Engages
solely in fact-finding
2. Simply
executes the policy decisions or final actions of the public body; and
3. Does
not otherwise act as a policymaking body.”
[The Inspection of Public Records Act: A Compliance Guide on
Government Transparency for New Mexicans and Their Public Officials, N.M.
Department of Justice 2024, pg 8]
There is no evidence that the PSSC
functioned in this limited advisory capacity.
A review of agendas and minutes from
252 City Council meetings between 2019 and 2025 revealed that the PSSC was
mentioned only three times, and never in connection with providing facts, information
or recommendations to the City Council. Likewise, a review of City Council
transcripts and communications between city officials produced no evidence that
the committee ever submitted formal or informal recommendations to the Council.
Instead, available records
demonstrate that the PSSC actively formulated, discussed, and controlled public
policy matters, including but not limited to:
· rewriting
ordinances concerning domestic violence and civilian police oversight;
· drafting
RFPs for police auditing services and crisis response units;
· discussing
police policies, including use-of-force standards, officer mental health
evaluations, and crisis intervention procedures; and
· deliberating
issues relating to homelessness, speed enforcement, fentanyl, gun safety,
police case closures, and pending litigation.
The committee’s policymaking role
was expressly acknowledged by city staff. In a November 13, 2023, email, Sergio
Ruiz, policy analyst for the city manager’s office, described the Public Safety
Committees as “an integral part of the policy-making process.”
Violation of Section 10-15-1(A) of the Open
Meetings Act by Conducting Public Business Through Closed-Door Votes
Section 10-15-1(A) of OMA provides:
“The formation of public policy or the conduct of business by vote shall not be
conducted in closed meetings.”
Nevertheless, the PSSC made
substantive policy determinations in closed meetings and, in at least one
instance, prevented rejected policy proposals from reaching the full City
Council for public consideration.
At a November 10, 2022, PSSC
meeting, Mayor Miyagishima and Councilors Abeyta and Gandara considered a
proposal concerning a citizen police review committee. Each expressed
opposition to the proposal, and the matter was not forwarded to the City
Council.
At the subsequent December 5, 2022,
City Council meeting, another councilor attempted to place the matter on the
agenda. Mayor Miyagishima refused to permit the issue to proceed, and PSSC
members actively discouraged further discussion.
Violation of the Open Meetings Act Through the Use
of a Closed Committee to Control Public Policy Discussions
Section 10-15-1(B) of OMA requires
meetings to be open to the public when held for “formulating public policy” or
“discussing public business.”
The record demonstrates that the
PSSC operated as a policymaking body and further acted to prevent public
discussion of public safety policy matters by the full City Council.
For example, during a November 23,
2020, City Council work session concerning police accountability, City Attorney
Vega-Brown advised that proposed policy changes “would be vetted through … the
Public Safety Select Committee.” Mayor Miyagishima repeatedly instructed
councilors who wanted to discuss policy to “follow procedure” and allow matters
to proceed through the PSSC first.
A similar pattern occurred during
City Council meetings on April 3 and April 17, 2023, when four councilors
requested a special public safety work session. Despite having sufficient votes
to call such a session, Mayor Miyagishima stated that any proposal for a work
session first needed approval from the PSSC before reaching the City Council.
These statements and actions
demonstrate that the PSSC functioned not as a limited advisory body, but as a
gatekeeping body, controlling which public safety issues could be publicly
discussed by elected officials.
If we reconsider the Attorney
General’s Definition of a committee that is exempt from OMA, it is clear that
the PSSC:
1. Did
not solely do fact finding
2. Did
act as a policymaking body
Thus, the committee was required to
follow OMA.
The PSSC’s actions as described
above rebut the findings of the Attorney General’s Office in its October 20,
2025, disposition letter, where it reasoned that “the the absence of evidence
to the contrary”…”that that the PSSC made decisions on behalf of, formulated recommendation
that were binding in any legal or practical way on, or otherwise established
policy for the City Council”…”our office finds that the PSSX’s meetings were
not subject to the provisions of OMA.”
Since we have evidence to the contrary, we will be asking the Attorney
General’s Office to reconsider their findings.
Violation of Section 10-15-1(B) Through the Use of
Committees to Circumvent OMA
The final sentence of Section
10-15-1(B) states: “No public meeting … shall be closed or dissolved into small
groups or committees for the purpose of permitting the closing of the meeting.”
Additionally, our state appellate
courts have held that, “[i]t is patently contrary to the OMA’s purpose to
permit a public body to avoid the OMA’s requirements simply by delegating its
responsibilities to a [committee].” [N.M. State Inv. Council v. Weinstein,
2016-NMCA-069, ¶ 75, 382 P.3d 923, 10 N.M. 287]
The legislative history surrounding
the amendment of the Select Committee Ordinance strongly suggests that avoiding
public scrutiny was a motivating factor behind creation of the PSSC.
During the January 6, 2020, City
Council meeting where changes to the select committee ordinance were approved,
City Attorney Vega-Brown stated that select committees were needed because
“there are instances in which we have to discuss potential litigation, things
like that, that would be better kept in a more confidential setting.”
Similarly, at a February 27, 2023,
City Council meeting, City Clerk Christine Rivera stated that select committee
meetings “are not subject to OMA” and that discussions included attorney-client
privileged matters and unreleased audit reports.
These statements indicate an intent
to utilize select committees as a mechanism for conducting public business
outside public oversight.
Failure to Provide Public Notice and Permit Public
Attendance
The Select Committee Ordinance
requires that “[t]he membership, purpose, duties, and duration of the select
committees … shall be made available to the public.” [LCC § 2-IV-7, Sec.
2-1101(A)].
Likewise, OMA provides that “[a]ll
meetings of any public body … shall be public meetings, and all persons
desiring shall be permitted to attend and listen to the deliberations and
proceedings.” [Section 10-15-1(A)].
The available evidence demonstrates
that the City actively resisted public disclosure concerning the PSSC’s
existence and activities.
In response to a June 25, 2023,
Inspection of Public Records Act request submitted by Michael Hays seeking
records related to the PSSC, the City initially produced only thirteen
documents, declared the request excessively burdensome, and later released heavily
redacted records. Following litigation, the City ultimately produced the
requested records after incurring approximately $95,000 in legal costs. [See Hays
v. City of Las Cruces, D-307-CV-2023-02167 (N.M. Dist. Ct. 2023)]
The public repeatedly requested
transparency regarding the PSSC during City Council meetings, including
requests for agendas, minutes, and public access to meetings. Those requests
were consistently denied or ignored.
Even City Council members who did
not serve on the committee were denied access to meeting notices, agendas, and
minutes, prompting them to repeatedly lodge complaints regarding the
committee’s secrecy and lack of accountability.
For example, On Feb. 27, 2023,
Councilor Yvonne Flores stated: “I just want to share with everybody in this
room that … I know as much about [the public safety committee] as you do. …
nothing gets reported to us, so I want the public to know that.”
Conclusion
The factual record establishes the
following:
1.
The Select Committee Ordinance was
amended to facilitate discussions of public policy in a confidential setting;
2.
The PSSC operated before the City
Council and public received formal notice of its existence;
3.
The PSSC formulated and controlled
public policy outside public view;
4.
The committee acted to prevent
broader City Council discussion of certain policy matters; and
5.
The City repeatedly withheld
information regarding the committee’s activities from both the public and
non-member councilors.
Taken together, these facts support
the conclusion that the Public Safety Select Committee was intentionally
structured and operated in a manner designed to permit the formulation,
discussion, and control of public safety policy outside the view of the public
and outside the requirements imposed by the Open Meetings Act.
In effect, the PSSC functioned as a
secret policymaking committee.
Such conduct is a violation of both
the letter and spirit of New Mexico’s transparency laws, which exist to ensure
that public policy is debated openly and that governmental decision-making
remains accountable to the public.
Rectifying the harm done to the public
Given the substantial harm caused to
the public by denying its fundamental democratic right to observe elected
officials discuss and make decisions on matters of public policy, we believe
the City Council should take immediate corrective action.
One meaningful step toward restoring
public trust would be to repeal the Select Committee Ordinance from the Las
Cruces Municipal Code. The ordinance’s practical effect was to facilitate the
creation and operation of committees that conducted public business outside
public view. Repealing the ordinance would demonstrate to the public that the
City Council recognizes the seriousness of these violations and is committed to
ensuring that similar conduct does not occur again.
We have been informed that no
current committees operate under the Select Committee Ordinance. If that is
true, repealing the ordinance would impose little to no operational burden on
the City Council while serving as an important first step toward restoring
transparency, accountability, and public confidence in local government.
• •
• • •
My concluding comments: Both Ms. Lopez’s questions and Mr.
Douglas’s answers assume that the PSSC did not operate in a rogue fashion
concealed by its secrecy—the contrary being the point of my complaint. Secret operations, if any, would be unlikely
to have documentation, the lack of which in such operations is no proof of PSSC
compliance with relevant Las Cruces Municipal Code (LCMC) or OMA
requirements. The absence of evidence is
not evidence of absence. Mr. Douglas
cites the LCMC as if an ordinance proves compliance. If so, laws against speeding would prove
compliance with speed limits, as if there were no speeders. FOG’s specification of OMA violations gives
the lie to Mr. Douglas’s anodyne and evasive answers, and suggests that the
City as represented by the City Attorney does not take either the OMA or the OAG
and its lawyers seriously. The Attorney
General’s decision to re-open or not my complaint will clearly indicate whether
AG Torrez himself respects the rule of law, takes the OMA seriously, and regards
governmental transparency as important to democracy in New Mexico.
In this context, I cite a passage from a 20 December 2024 letter
from Blaine Moffatt, Division Director, Government Counsel and Accountability Division to Mayor Enriquez,
Councilor Bencomo, and City Attorney Douglas that OAG will be especially
attentive to future complaints. It
advises them that “Future complaints
related to your public body will be examined with increased attention, and
further information regarding your public body’s training and policies may be
requested to determine what additional intervention may be needed and whether
an enforcement action may be necessary to ensure government accountability.” As my mother would say, “we shall see what we
shall see.”
