Investigations

What the PSSC did do was deliberate and formulate public policy outside the scope of an OMA-exempt committee.

Available records demonstrate that the PSSC discussed and considered substantive 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 matters relating to homelessness, speed enforcement, fentanyl, gun safety, police case closures, and pending litigation. [See file: AGENDA, NOTES PSSC Jan-Aug 2023.pdf]

The PSSC did not engage solely in fact-finding, nor did it execute decisions of the City Council. Instead, it formulated and controlled public policy.

Section 10-15-1(A) of the 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 Ken Miyagishima and Councilors Kasandra Gandara and Tessa Abeyta 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. [See file: NOTES PSSC 11.10.22.]

At the subsequent December 5, 2022 City Council meeting, another councilor attempted to place the matter on the agenda. Mayor Miyagishima refused to allow the issue to proceed, and PSSC members discouraged further discussion. [See file: MINUTES Las Cruces City Council 12.05.22, p. 35.]

Additionally, meeting notes from an August 23, 2023 PSSC meeting state that the committee determined “that no random reviews of Use of Force (or any kind) will be added to the [police auditor] OIR Contract.” [See file: EMAIL PSSC meeting notes 8.23.23.pdf.]

The available records demonstrate that the PSSC functioned as a policymaking and gatekeeping body that controlled which public safety matters could be publicly discussed by the full City Council.

For example, during a November 23, 2020 City Council work session concerning police accountability, City Attorney Vega-Brown stated that proposed policy changes “would be vetted through … the Public Safety Select Committee.” Mayor Miyagishima repeatedly instructed councilors seeking to discuss policy matters to “follow procedure” and route those matters through the PSSC first. [See file: TRANSCRIPT Las Cruces City Council 11.23.20.pdf.]

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 required approval from the PSSC before reaching the City Council. [See files: TRANSCRIPT Las Cruces City Council 4.3.23.pdf and TRANSCRIPT Las Cruces City Council 4.17.23.pdf.]

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 Select Committees as “an integral part of the policy-making process.” [See file: EMAIL Las Cruces staff, councilor 11.13.23.]

Section 10-15-1(B) of the OMA further provides: “No public meeting … shall be closed or dissolved into small groups or committees for the purpose of permitting the closing of the meeting.”

Additionally, the New Mexico Court of Appeals has 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.

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 approving changes to the select committee ordinance, City Attorney Vega-Brown stated that select committees were needed because “there are instances in which we have to discuss potential litigation … that would be better kept in a more confidential setting.” [See file: MINUTES Las Cruces City Council 1.6.20.pdf, p. 98.]

The available evidence also demonstrates that the City 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).]

Members of 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 repeated complaints regarding the committee’s secrecy and lack of accountability.

For example, on February 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.”

For these reasons, we respectfully request that your office reopen its investigation into whether the Public Safety Select Committee violated the Open Meetings Act.

Thank you for your consideration