SENATE BILL 456

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Timothy Z. Jennings

AN ACT

RELATING TO OPEN GOVERNMENT; REQUIRING LIVE VIDEO AND AUDIO TRANSMISSIONS VIA THE INTERNET OF THE GOVERNOR'S CABINET MEETINGS; PROVIDING EXCEPTIONS; REQUIRING LIVE VIDEO AND AUDIO TRANSMISSION VIA THE INTERNET OF MEETINGS OF CERTAIN PUBLIC ENTITIES CONDUCTING PUBLIC BUSINESS; PROVIDING EXCEPTIONS; REQUIRING COPIES OF TRANSMISSIONS TO BE RETAINED AS PUBLIC RECORDS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 9-1-3 NMSA 1978 (being Laws 1977, Chapter 248, Section 3) is amended to read:

     "9-1-3. CABINET CREATED--MEMBERS--POWERS AND DUTIES.--

          A. There is created the "executive cabinet" headed by the governor and consisting of, but not limited to, the lieutenant governor and the secretaries of such departments as are hereafter created and designated as "cabinet departments" pursuant to law.

          B. The cabinet shall:

                (1) advise the governor on problems of state government;

                (2) establish liaison and provide communication between the executive departments and state elected officials;

                (3) investigate problems of public policy;

                (4) study government performance and recommend methods of inter-agency cooperation;

                (5) review policy problems and recommend solutions;

                (6) strive to minimize and eliminate overlapping jurisdictions and conflicts within the executive branch; and

                (7) assist the governor in defining policies and programs to make the government responsive to the needs of the people.

          C. The governor shall call meetings of the cabinet at [his] the governor's pleasure and shall seek the advice of the cabinet members.

          D. The governor shall provide live video and audio transmissions of cabinet meetings on the governor's internet web site. The governor shall give at least twenty-four hours' notice of the cabinet meeting on the governor's internet web site, unless the meeting is called to address an emergency less than twenty-four hours before the meeting is to be held. For the purpose of this subsection, "emergency" refers to unforeseen circumstances that, if not addressed immediately by the cabinet, will likely result in injury or damage to persons or property or substantial loss to the state. A live video and audio transmission need not be made for a portion of a cabinet meeting where the subject is a matter identified in Paragraphs (1) through (8) of Subsection L of Section 10-15-1 NMSA 1978. The governor shall make a copy of the transmission, and it is a public record. The copy shall be retained and disposed of by the governor in accordance with a records retention and disposition schedule adopted by the state commission of public records pursuant to the Public Records Act."

     SECTION 2. Section 10-15-1 NMSA 1978 (being Laws 1974, Chapter 91, Section 1, as amended) is amended to read:

     "10-15-1. FORMATION OF PUBLIC POLICY--PROCEDURES FOR OPEN MEETINGS--EXCEPTIONS AND PROCEDURES FOR CLOSED MEETINGS.--

          A. In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. The formation of public policy or the conduct of business by vote shall not be conducted in closed meeting. All meetings of any public body except the legislature and the courts shall be public meetings, and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings. Reasonable efforts shall be made to accommodate the use of audio and video recording devices.

          B. All meetings of a quorum of members of any board, commission, administrative adjudicatory body or other policymaking body of any state agency or institution or any agency or authority of any county, municipality, district or [any] political subdivision, held for the purpose of formulating public policy, including the development of personnel policy, rules, regulations or ordinances, discussing public business or [for the purpose of] taking any action within the authority of or the delegated authority of any board, commission or other policymaking body, are declared to be public meetings open to the public at all times, except as otherwise provided in the constitution of New Mexico or the Open Meetings Act. No public meeting once convened that is otherwise required to be open pursuant to the Open Meetings Act shall be closed or dissolved into small groups or committees for the purpose of permitting the closing of the meeting.

          C. The board, commission, administrative adjudicatory body or other policymaking body conducting a meeting required to be a public meeting open to the public pursuant to Subsection A of this section shall provide for live video and audio transmission of that public meeting via the internet no later than January 1, 2012 unless exempted pursuant to Subsection D of this section. The location or uniform resource locator of the internet site where the live transmission is or will be available shall be provided in the notice of the public meeting required by the Open Meetings Act. The internet site shall be a public access site or a site available to the public without cost or subscription. The department of information technology, when requested, shall provide technical assistance to a board, commission administrative adjudicatory body or other policymaking body to implement the live video and audio transmission required by this subsection.

          D. After a request by a board, commission, administrative adjudicatory body or other policymaking body for technical assistance, if the department of information technology determines in writing that providing a live video and audio transmission of a particular public meeting in a particular location and at a particular time is technically or logistically impracticable, the department of information technology shall issue the written determination to the affected entity. If live audio transmission is practicable but not video transmission, the written determination shall so indicate. The written determination shall exempt the entity from providing a live video and audio transmission or from providing a live video transmission for the particular public meeting, as the case may be, as otherwise required by the Open Meetings Act.

          E. A board, commission, administrative adjudicatory body or other policymaking body shall receive no more than two exemptions in a twelve-month period pursuant to Subsection D of this section. An entity receiving an exemption shall take all actions reasonable and necessary to schedule its public meetings at times and places where live video and audio transmission of the meetings can occur.

          F. A board, commission, administrative adjudicatory body or other policymaking body providing a live video and audio transmission of a public meeting, or a live audio transmission of a public meeting pursuant to Subsection D of this section, shall also produce an electronic media exact copy of the transmission. The copy shall be a public record. The copy shall be retained and disposed of by the entity producing it in accordance with a records retention and disposition schedule adopted by the state commission of public records pursuant to the Public Records Act.

          [C.] G. If otherwise allowed by law or rule of the public body, a member of a public body may participate in a meeting of the public body by means of a conference telephone or other similar communications equipment when it is otherwise difficult or impossible for the member to attend the meeting in person, provided that each member participating by conference telephone can be identified when speaking, all participants are able to hear each other at the same time and members of the public attending the meeting are able to hear any member of the public body who speaks during the meeting.

          [D.] H. Any meetings at which the discussion or adoption of any proposed resolution, rule, regulation or formal action occurs and at which a majority or quorum of the body is in attendance, and any closed meetings, shall be held only after reasonable notice to the public. The affected body shall determine at least annually in a public meeting what notice for a public meeting is reasonable when applied to that body. That notice shall include broadcast stations licensed by the federal communications commission and newspapers of general circulation that have provided a written request for such notice.

          [E.] I. A public body may recess and reconvene a meeting to a day subsequent to that stated in the meeting notice if, prior to recessing, the public body specifies the date, time and place for continuation of the meeting and, immediately following the recessed meeting, posts notice of the date, time and place for the reconvened meeting on or near the door of the place where the original meeting was held and in at least one other location appropriate to provide public notice of the continuation of the meeting. Only matters appearing on the agenda of the original meeting may be discussed at the reconvened meeting.

          [F.] J. Meeting notices shall include an agenda containing a list of specific items of business to be discussed or transacted at the meeting or information on how the public may obtain a copy of such an agenda. Except in the case of an emergency, the agenda shall be available to the public at least [twenty-four hours] seven consecutive days immediately prior to the meeting. Except for emergency matters, a public body shall take action only on items appearing on the agenda. For purposes of this subsection, [an] "emergency" refers to unforeseen circumstances that, if not addressed immediately by the public body, will likely result in injury or damage to persons or property or substantial financial loss to the public body.

          [G.] K. The board, commission or other policymaking body shall keep written minutes of all its meetings. The minutes shall include at a minimum the date, time and place of the meeting, the names of members in attendance and those absent, the substance of the proposals considered and a record of any decisions and votes taken that show how each member voted. All minutes are open to public inspection. Draft minutes shall be prepared within ten working days after the meeting and shall be approved, amended or disapproved at the next meeting where a quorum is present. Minutes shall not become official until approved by the policymaking body.

          [H.] L. The provisions of Subsections A, B, C and [G] K of this section do not apply to:

                (1) meetings pertaining to issuance, suspension, renewal or revocation of a license, except that a hearing at which evidence is offered or rebutted shall be open. All final actions on the issuance, suspension, renewal or revocation of a license shall be taken at an open meeting;

                (2) limited personnel matters; provided that for purposes of the Open Meetings Act, "limited personnel matters" means the discussion of hiring, promotion, demotion, dismissal, assignment or resignation of or the investigation or consideration of complaints or charges against any individual public employee; provided further that this [subsection] paragraph is not to be construed as to exempt final actions on personnel from being taken at open public meetings, nor does it preclude an aggrieved public employee from demanding a public hearing. Judicial candidates interviewed by any commission shall have the right to demand an open interview;

                (3) deliberations by a public body in connection with an administrative adjudicatory proceeding. For purposes of this paragraph, [an] "administrative adjudicatory proceeding" means a proceeding brought by or against a person before a public body in which individual legal rights, duties or privileges are required by law to be determined by the public body after an opportunity for a trial-type hearing. Except as otherwise provided in this section, the actual administrative adjudicatory proceeding at which evidence is offered or rebutted and any final action taken as a result of the proceeding shall occur in an open meeting;

                (4) the discussion of personally identifiable information about any individual student, unless the student [his] or the student's parent or guardian requests otherwise;

                (5) meetings for the discussion of bargaining strategy preliminary to collective bargaining negotiations between the policymaking body and a bargaining unit representing the employees of that policymaking body and collective bargaining sessions at which the policymaking body and the representatives of the collective bargaining unit are present;

                (6) that portion of meetings at which a decision concerning purchases in an amount exceeding two thousand five hundred dollars ($2,500) that can be made only from one source and that portion of meetings at which the contents of competitive sealed proposals solicited pursuant to the Procurement Code are discussed during the contract negotiation process. The actual approval of purchase of the item or final action regarding the selection of a contractor shall be made in an open meeting;

                (7) meetings subject to the attorney-client privilege pertaining to threatened or pending litigation in which the public body is or may become a participant;

                (8) meetings for the discussion of the purchase, acquisition or disposal of real property or water rights by the public body;

                (9) those portions of meetings of committees or boards of public hospitals where strategic and long-range business plans or trade secrets are discussed; and

                (10) that portion of a meeting of the gaming control board dealing with information made confidential pursuant to the provisions of the Gaming Control Act.

          [I.] M. If any meeting is closed pursuant to the exclusions contained in Subsection [H] L of this section [the closure]:

                (1) the closure, if made in an open meeting, shall be approved by a majority vote of a quorum of the policymaking body; the authority for the closure and the subject to be discussed shall be stated with reasonable specificity in the motion calling for the vote on a closed meeting; the vote shall be taken in an open meeting; and the vote of each individual member shall be recorded in the minutes. Only those subjects announced or voted upon prior to closure by the policymaking body may be discussed in a closed meeting; [and] or

                (2) if a closure is called for when the policymaking body is not in an open meeting, the closed meeting shall not be held until public notice, appropriate under the circumstances, stating the specific provision of the law authorizing the closed meeting and stating with reasonable specificity the subject to be discussed is given to the members and to the general public.

          [J.] N. Following completion of any closed meeting, the minutes of the open meeting that was closed or the minutes of the next open meeting if the closed meeting was separately scheduled shall state that the matters discussed in the closed meeting were limited only to those specified in the motion for closure or in the notice of the separate closed meeting. This statement shall be approved by the public body under Subsection [G] J of this section as part of the minutes."

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