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The New Mexico Open Meetings Act (“OMA”), NMSA 10-15-1 (2021), et seq., is part of a larger set of what are known as Sunshine Laws, which ensure that the public has access to the work of its government. Along with the Inspection of Public Records Act (“IPRA”), NMSA 14-2-1 (2021), et seq., the OMA is designed to ensure that state and local governments provide access to documents and government meetings to all. A federal equivalent would be the Freedom of Information Act, enacted in 1967. See 5 USC § 552 (2018).
At 6:00 PM, Estancia Trustee Albert Lovato was discussing his priorities for the Infrastructure Capital Improvement Plan (“ICIP”), a planning document that municipalities use to set “priorities for anticipated infrastructure projects for counties, municipalities, tribal governments, special districts, and senior citizen facilities,” according to the New Mexico Department of Finance and Administration (“NMDFA”). Municipalities have until August 18, 2023, to conduct an open public hearing regarding the ICIP and then submit the planning document to the NMDFA. According to the documents available to the public at the August 7, 2023, Estancia Board of Trustees meeting, that public hearing was to take place at 6:00 PM that evening and cover the ICIPs for fiscal year ("FY") 2025 to FY 2029. According to the public calendar published by the Town of Estancia on its website, the public hearing was not listed, and only a regular meeting of the board of trustees was supposed to take place, although at 6:15 PM (the regularly scheduled time for the board's meetings). Following Lovato's statements, Mayor Pro Tem Noah Sedillo closed the discussion by providing opinions concerning his ICIP priorities. It stands to reason that before 6:00 PM, Mayor Nathan Dial, Trustee Morrow Hall, and Trustee Stella Chavez provided remarks regarding their ICIP priorities for four upcoming years. Following Mayor Pro Tem Sedillo's comments, the public hearing ended at 6:11 PM.
In NMSA 10-15-1(D), the state statute provides that "[any] meetings at which the discussion or adoption of any proposed... regulation or formal action occurs... shall be held only after reasonable notice to the public." As mentioned above, Estancia provided no notice of a public hearing and still has not indicated that one took place on the public calendar it uses for notice on its website. The town stopped posting recordings of its meetings in May 2023. Additionally, given the state of the discussion by the trustees at 6:00 PM, the public hearing lacked adequate notice. It likely started before the 6:00 PM scheduled start time posted on its printed agenda. The publicly posted calendar did not even mention a 6:00 PM hearing.
Immediately after the public hearing, the town went into its regular meeting. After approving previous meeting minutes and discussion of the town's bills, the board of trustees unanimously voted to approve Estancia Resolution 2023-17, which supported the FY2025-FY2029 Infrastructure Capital Improvement Plan, which it had discussed in the public hearing.
During the department head reports, Mayor Dial announced that he had received no complaints regarding Estancia's EMS department over the last six months. Dial also said that the town's Youth Conservation Corps project would focus on improvements related to the Estancia Pumpkin Chunkin' event.
Mayor Pro Tem Sedillo discussed the possibility of upcoming tort claims against the town due to an unnamed individual allegedly injured while walking on town property near the municipal pool. Sedillo said that employees were directed to tell injured parties in the future to file a tort claim act notification if the injured party claimed the town caused an injury.
Code Enforcement Officer William Teaney provided the trustees with an update regarding its ongoing dispute with the property owners of 515 Inverness Avenue. Teaney advised the trustees that the property owners had done some of the requested cleanup work. The mayor and trustees discussed following up on the matter in one month.
Ernesto Acosta and Elizabeth Moore discussed with the board of trustees the efforts of Acosta and Moore to develop an RV park that would target workers for the upcoming SunZia wind farm project. The RV park would be near the CoreCivic Torrance County Correctional Facility, on the corner of Alan Ayers Road and Salt Missions Trail (Old NM-41). Mayor Dial noted that there was no sewer service on the plot of land, so it would require a septic field. The trustees discussed whether the town would provide the park with potable water and sewer hookup and what size septic field would be required by the state if Estancia did not provide a hookup to the Estancia sewer system. Ultimately, the board of trustees took no action concerning the RV park proposal.
Interim Police Chief Jason Downing presented to the board updated standard operating procedures (SOPs) for the Estancia Police Department's rules of force. Trustee Hall expressed concern that the SOPs were too complicated, saying that it was easy for him to understand because he was a college graduate but "your average police officer is going to get really lost in this." Hall suggested a "one-page, bulleted, 14-point type summary of these [procedures]. We don't kill people unless we have to. We don't hurt people unless we have to. We have ways not to hurt them, but you've got to be trained in them."
Downing reassured the trustees that he intended to train all of the Estancia police officers in the SOPs, and the documents were lengthy because they were intended to anticipate litigation over what was not addressed in the rules of force SOPs.
"...[We] have to cover the town, we have to cover the department, we have to cover the officers, we have to cover the citizens. So we're trying to cover a lot of bases. And unfortunately, in today's day and age, which is a very litigious environment where everybody wants to sue everybody, the first thing, as you know, that lawyers or individuals will look at is what don't we have [in these SOPs]? And so I'm trying to make sure that we're covering the big pieces to make sure that the town is as protected as possible and the officers are as well."
-- Estancia Police Department Interim Chief Jason Downing on the Estancia Police Rules of Force SOPs
Downing explained the procedures he expected to use concerning training the officers on the rules of force:
"... [Certainly] we sit down, we talk about it or [watch a] PowerPoint [presentation], but also I try to do things on a practical basis as well. Even recently, we were at the school just doing walkthroughs of the schools. We did previous training of documents and kind of the boring stuff and then we did walkthroughs of the school and kind of the practical exercise of what we just discussed to try to get it in the brain of what we're talking about versus just reading a bunch of pages...."
The Board of Trustees unanimously approved the SOPs. Chief Downing advised the board that he would present additional police policies for their review in the future.
Continuing with police matters, the board of trustees discussed the possibility of establishing a school resource officer (SRO) position in the Estancia Public School District. Under procedures explained by Mayor Dial, "the school is paying the salary [for the school resource officer], but the individual is a town employee with duty at the school." Downing continued with the explanation by stating that the SRO would not be responsible for covering all sporting and social events for the school district. Instead, officers could volunteer for overtime to cover those events. Mayor Pro Tem Sedillo moved to approve the memorandum of understanding between the Town of Estancia and the Estancia Public School District regarding establishing an SRO. The board of trustees unanimously approved Sedillo's motion.
Downing presented a third matter to the board of trustees, stating he had been approached by the German version of the Discovery Channel, and the network wanted to film Estancia Police as part of a documentary series on US police officers. "So in America," Downing said, "we think of shows like Ice Road Truckers or Gold Diggers or those kind of just documentary shows where they just show what they're doing [as examples of programming on the Discovery Channel], a little bit of the history of the people or background of the people. They [the German television network] are doing that with law enforcement."
Trustee Lovato moved to approve the agreement between the German television network and the Estancia Police Department. After some discussion regarding potential liability, the board unanimously approved the motion.
Dial raised the matter of hiring Rachel Martinez to a full-time finance administrative assistant/receptionist position. Dial said that Martinez would be paid at a rate of $16.00/hour. The board uniformly voted to approve Martinez's hiring.
Similarly, Dial raised the matter of hiring Ramon Moran for the "full-time maintenance worker 1" position with a starting salary of $18.00/hour. The board of trustees also unanimously voted in favor of hiring Moran.
The trustees discussed how they would handle the impending retirement of two town employees. This discussion led to a dispute between Mayor Pro Tem Sedillo and Town Clerk Michelle Jones over whether the town could pay for gifts for the retiring individuals from town funds. Sedillo repeatedly stated that the trustees could take money from the town's funds for retirement gifts. Jones said she had been trained that such a use of town funds was illegal. Mayor Dial said he wanted Sedillo to show that using town funds to pay for gifts was legal.
The dispute between Sedillo and Jones regarding the ethics of using municipal funds for gifts given to private individuals relates to three sources of New Mexico Law:
- Article VIII § 4 of the New Mexico Constitution;
- a 1978 New Mexico statute known as the Gift Act; and,
- a 1967 law initially enacted as the Conflicts of Interest Act, now known as the Governmental Conduct Act ("GCA").
Under the Office of the New Mexico Attorney General's understanding of the Gift Act and the GCA, these laws "[forbid] state and local government officials from accepting payment or gifts of over $100 in value for performing services related to their official duties." Office of the New Mexico Attorney General, New Mexico Governmental Conduct Act Compliance Guide, at 29 (2015). Article VIII § 4 of the New Mexico Constitution deems misuse of municipal funds a felony for which penalties include disqualification from holding public office.
Dial explained that he would be meeting with the district's Congressional Representative, Melanie Stansbury (D-NM1), on August 16, 2023, regarding water issues Estancia has faced.
Dial advised the board of trustees that two film crews were looking at using Estancia for filming locations. (It is now known that one of these crews was spearheaded by Midsommar director Ari Aster and Joker actor Joaquin Phoenix and is looking at locations near Estancia and Mountainair.)
The board of trustees closed its meeting following Mayor Dial's discussion of a contractor the mayor had retained for mapping Estancia's cemetery. Dial explained that the contractor would use global positioning satellites and LIDAR to determine where people have been buried. Dial said the initial cost for using this contractor would be $18,000 in the first year and then $3,000/year after that.