© CITY OF ALBUQUERQUE Office of the City Attorney Jenica L. Jacobi, Interim City Attorney PO Box 2248 Albuquerque, New Mexico 87103 (505) 768-4500 ~ Fax (505) 768-4525 April 21, 2015 Luis G. Carrasco Office of the Attomey General PO BOX 1508 Santa Fe, NM 87504 Re: Open Meetings Act Complaint — City of Albuquerque Dear Mr. Carrasco, Assistant Attorney General: ‘The City of Albuquerque is in receipt of your letter (“Letter”) dated March 31, 2015 regarding your office’s inquiry into the above-captioned matter, The City has ro am wy Tad both your Letter and the copy of the complaint (“Complaint”) submitted to Ms. 7 Roller by Charles Arasim. From the Complaint, it appears the concem stems from a misunderstanding of the nature of the hearings presided over by the Independent Hearing Officers (“Tearing Officers"), and the meetings of the Personnel Board. The Albuquerque hearings before the Hearing Officers serve a preliminary function wherein the Hearing Officer hears a City personnel case first, then submits a non-binding recommendation. to the Personnel Board. The Personnel Board then reviews the recommendation at a ow Mexcw arvos SeParate open meeting subject to the Open Meetings Act (“OMA”), deliberates, and lew Mexics 87195 tales action consistent with its powers under the City's Merit Ordinance. ‘The Hearing. are the yt subje the OM: ‘The Complaint states that Mr, Arasim was denied the ability to video record hearings before the Hearing Officers. The Complaint states that this was a violation of the OMA, and likens these hearings to example 45 in the OMA compliance guide. Example 45 reads: “An employee of AAA City is notified by her supervisor that she was to be terminated, for insubordination. Pursuant to the City’s personnel policies, the employee requests a post disciplinary hearing before the City Council. By statute and under the City Charter, the City. Council has the power to hire and discharge employees, The City Council delegates its authority to conduct the hearing to a hearing officer, The employee requests a public hearing. ‘The City’s personnel policies give an employee who is discharged the right to a post~ disciplinary hearing at the employee’s request. Although an individual hearing officer is Albuquerque ~ Making History 1706-2006conducting the hearing, the hearing is subject to the Open Meetings Act because the hearing officer is exercising the City Council's delegated authority to terminate employees. Accordingly, the hearing officer must conduct the hearing in public because the employee requested an open hearing.” Everything about example 45 is analogous to the Hearing Officers currently contracted by the City to preside over its personnel hearings, except for the bolded Section. The Hearing Officers are not allowed to uphold or not uphold employee ir role is to submit a recommendation to the Personnel Board which then deliberates on the matter and upholds, does not uphold, or modifies the discipline. The Board meets monthly in public pursuant to the terms of the OMA. ‘The Board wields the authority vested in it by the City Council, and has not yielded it to the Hearing Officers. Although the hearings before the Hearing Officers are open to the public, the specific provision of the OMA requiring accommodations for filming and recording do not apply because the hearings are not subject to the OMA. See, “Example 7”, New Mexico Open Meetings Act Compliance Guide. discipline, rather th Your Letter makes ten requests for further information, and the City replies to those requests in the numerical order in which they were made below: How many Personnel Hearing Officers does the City or City Personnel Board utilize ‘for City personnel hearings and who are those Personnel Hearing Officers? How are these Personnel Hearing Officers selected? A: The City uses a pool of four Hearing Officers, their names are: Willard Davis Pat Bingham Barbara Albin Rita Siegel Hearing Officers are selected according to the process for their selection as provided by the City's Merit System Ordinance. See attached, “Merit System; Personnel Policy” Section 3-1-26, Exhibit “1.” A City committee accepts potential Hearing Officer applications and the City’s Chief Administrative Officer chooses from among the best qualified. Please provide copies of the City’s and/or the City Personnel Board's Open Meetings Resolution(s) or other document(s) approved by the City or Personnel Board describing what notice for a public meeting is reasonable when applied to the City or Personnel Board, as required by NMSA 1978, Section 10-15-1(D) (2013), in effect as of March 1, 2015. A: Copies of the City Personnel Board’s Open Meetings Resolutions and relevant City Ordinances are attached here as Exhibit “2.” The Personnel Board is bound to givenotice of its meetings pursuant to NMSA, Section 10-15-1(D), and does comply with those requirements. A copy of one of the Board's Agenda’s and Minute’s is attached. Please describe how City personnel hearings are conducted and any procedures, rules, or regulations Personnel Hearing Officers are required to follow with regard to City personnel hearings. A: Individual Hearings are conducted after notice is mailed to both parties in accordance with the Rules of Procedure promulgated by the Personnel Board pursuant to the authority vested in the Personne! Board by the City’s Merit System Ordinance. The meetings before the Board are governed by the rules contained in Exhibit “2.” A copy of the Rules of Procedure for the Hearing Officers’ hearings is attached hereto as Exhibit “3.” Please provide copies of the notices, agendas, and minutes furnished by the City or Personnel Board for City personnel hearings as of March 1, 2015, and for any personnel hearings scheduled in the future. ‘A: The notices of personnel hearings before the Hearing Officers are attached hereto as Exhibit “4.” Agendas are not created for the hearings before the Hearing Officers, nor are minutes kept. Audio recordings of the hearings are made and kept by the City Clerk and are available for public inspection or purchase from the Clerk. Has any Personnel Hearing Officer closed any personnel hearing, or any portion "thereof, to the public? Iso. please indicate the date that any City personnel hearing was held but was not open, in whole or in part, to the public. Please also provide any notices, minutes or other documents demonstrating the legal authority and description of matters to be discussed in any clased personnel hearing. A: To the City’s knowledge, the hearings presided over by the Hearing Officers have always rsmsined open the public Public individuals in attendance have been asked to leave the hearings when they do not comply with the Hearing Officers’ requests maintain decorum. bs Has any Personnel Hearing Officer not permitted members of the public to audio or video record any City personnel hearing or portion thereof or threatened to do so? If, 0, please indicate the date that any Personnel Hearing Officer ‘permitted members of the public 0 audio or video record any Cly personel eae ok threatened todo so, along with any explanation of the legal authority and ces permitting the Personnel Hearing Officer to restrict the use of video or A: Yes. To the City’s knowledge, Hearing Officers have denied members is the ability to video record personnel hearings on three occasions. openly on February 25, 2015, March 4, 2015, and March 17, 2015. In some or all of these ‘nstances, members of the public continued recording despite the Hearing Officer'sSee. The Heacing Oetioers da each of these instances felt that the use of the “eewaling Gees wow adversely affect the decorum of the hearing, The Personnel Soames Solos of Procediore state vm relevant part that, “The Hearing Officer is TSmemae Ke Ge cowmal ancl deoorwen of the hearing rom, The Hearing Officer PMS TAKE Sey Some be Geewns eoeREary to effectuate a fall, fair, impartial and expedinoes heweiag.” Soe Dubie 2, “Rules of Procedure”, (D). The Hearing Omticens pooper) evere ‘her power under the Personnel Board's Rules of Proondiere weed were made pursuant to the authority granted to the Personnel Board Dy De Cys Mort System Ordinance, ~ Plnsw prone copees of amy audio ar video recordings of any City personnel feurveys, J arunlade stece Marck J NOS. A Please swe attached audio disks listed as Exhibit "3." A Please prunsdir copees of aay wrkwer reguests £0 inspect public records filed with the SD Os Ae Osco ond rolatiag 2 recands pertaining to any of the City personnel snnarengs onalionaed de Ais Complaint, and any of the City’s responses thereto. A Pease see attached XRG” Please 2 munlale oyormanon pertaining (0 any investigation the City has Some ragurey hes retin’ conphat ot ONESIES ixrsoame! Rearomes A The inten Oty Atomey reviewed the OMA and the relevant ordinances and ‘rules promulgated Dy the Personnel Board as they related to the duties of the Hearing OsSoers and conctudied that the OMA did not apply to the personnel hearings presided. over by the Hearing Officers, Under this analysis, the factual circumstances were evaluated and no molaton of law was found as a result of the Hearing Officers denying the use of reoording equipment at the personnel hearings in question. 1D Pine provadie emy avher aces dyfirmation or documents that you think might be negota! © us on reaoking @ devermination about the complaint. Av The City does not have any other material that it believes would assist the Attomey General ae ate inset eee explanation of the difference between the hearings before the Hearing and the