The Otero County Commission violated the New Mexico Open Meetings Act when it held an emergency meeting March 13 to extend a contract allowing the U.S. Immigration and Customs Enforcement agency to house detainees at its jail, the New Mexico Department of Justice said on Friday.
The NMDOJ review nullifies the unanimous decision commissioners made at the end of a 12-minute meeting to adopt a five-year contract extension with ICE, according to a New Mexico DOJ news release.
“The Open Meetings Act is not optional,” Attorney General Raúl Torrez said in a statement. “It ensures that public business is conducted in the open, not rushed through under the guise of an emergency when no true emergency exists.”
Otero County Attorney R.B. Nichols told commissioners on March 13 that holding an emergency meeting, which requires less public notice than regular meetings, was necessary because the county’s contract with ICE was expiring imminently.
The contract expiring would deprive the county of more than $5 million in revenue and render it unable to pay for debt service on bonds the county sold to build the Otero County Processing Center in 2007, he said.
However, the NMDOJ review found that the county had no sufficient basis to call an emergency meeting, saying it was the county’s failure to anticipate and plan for the impending contract expiration date. Emergency meetings, under OMA, can only be called due to “unforeseen circumstances,” according to the NMDOJ.
“A known contractual end date does not meet the definition of an ‘unforeseen circumstance,’” wrote Blaine Moffatt, director of the NMDOJ’s Government Counsel and Accountability Bureau, in a letter Friday to Otero County officials.
The commissioners voted to continue the contract despite a new state law, House Bill 9, that prohibits public entities like counties from contracting with federal agencies to detain immigrants. That law goes into effect May 20.
New Mexico Rep. Sarah Silva (D-Las Cruces) earlier this week asked the New Mexico Department of Justice to issue an opinion on the contract’s validity, saying she suspected it was “an attempt to circumvent HB9,” and to determine if commissioners’ lack of discussion on the contract violated state transparency laws.
Otero County Commission Chair Gerald Matherly did not immediately return SourceNM’s requests for comment Friday about the NMDOJ’s ruling or what the commission’s next steps are.
The NMDOJ earlier this year ruled that a separate county’s ICE contract extension was illegal under the Open Meetings Act. In that case, the Torrance County Commission was forced to hold a subsequent meeting, in which commissioners voted again to extend the contract.
