2023 New Mexico Statutes › Chapter 10 - Public Officers and Employees › Article 15 - Open Meetings › Section 10-15-3 - Invalid actions; standing.

A. No resolution, rule, regulation, ordinance or action of any board, commission, committee or other policymaking body shall be valid unless taken or made at a meeting held in accordance with the requirements of Section 10-15-1 NMSA 1978. Every resolution, rule, regulation, ordinance or action of any board, commission, committee or other policymaking body shall be presumed to have been taken or made at a meeting held in accordance with the requirements of Section 10-15-1 NMSA 1978.
B. All provisions of the Open Meetings Act shall be enforced by the attorney general or by the district attorney in the county of jurisdiction. However, nothing in that act shall prevent an individual from independently applying for enforcement through the district courts, provided that the individual first provides written notice of the claimed violation to the public body and that the public body has denied or not acted on the claim within fifteen days of receiving it. A public meeting held to address a claimed violation of the Open Meetings Act shall include a summary of comments made at the meeting at which the claimed violation occurred.
C. The district courts of this state shall have jurisdiction, upon the application of any person to enforce the purpose of the Open Meetings Act, by injunction, mandamus or other appropriate order. The court shall award costs and reasonable attorney fees to any person who is successful in bringing a court action to enforce the provisions of the Open Meetings Act. If the prevailing party in a legal action brought under this section is a public body defendant, it shall be awarded court costs. A public body defendant that prevails in a court action brought under this section shall be awarded its reasonable attorney fees from the plaintiff if the plaintiff brought the action without sufficient information and belief that good grounds supported it.
D. No section of the Open Meetings Act shall be construed to preclude other remedies or rights not relating to the question of open meetings.
History:
1953 Comp., § 5-6-25, enacted by Laws 1974, ch. 91, § 3; 1989, ch. 299, § 3; 1993, ch. 262, § 2; 1997, ch. 148, § 1.
ANNOTATIONS
The 1997 amendment,
effective June 20, 1997, added the proviso in the second sentence of Subsection B and rewrote Subsection C.
The 1993 amendment,
effective June 18, 1993, purported to amend this section but made no change.
Memorandum of understanding
entered into by regional forester of the forest service and the executive director of the livestock board was not a proper action under this section, and thus there was no Open Meetings Act violation.
Paragon Found., Inc. v. N.M. Livestock Bd
., 2006-NMCA-004, 138 N.M. 761, 126 P.3d 577, cert. denied, 2006-NMCERT-001, 139 N.M.272, 131 P.3d 659.
Recall of school board members.
— Violation of the Open Meetings Act provides a sufficient basis for a petition to recall school board members.
Dona Ana Cnty. Clerk v. Martinez
, 2005-NMSC-037, 138 N.M. 575, 124 P.3d 210.
Employment offer from two commissioners.
— The action of two county commissioners orally extending an offer of a two-year employment was without statutory authority because it was not made at a duly constituted meeting of the board and, thus, it was not a valid act capable of binding the county.
Trujillo v. Gonzales
, 1987-NMSC-119, 106 N.M. 620, 747 P.2d 915.
Retroactive cure of invalid action.
— When a public entity acts to cure an employment termination action that was taken in violation of the Open Meetings Act by taking a later action, the later action cannot be applied retroactively to make the prior action valid and effective as of the date it was taken.
Palenick v. City of Rio Rancho
, 2012-NMCA-018, 270 P.3d 1281, cert. granted, 2012-NMCERT-002.
Where a municipality terminated plaintiff as city manager in violation of the Open Meeting Act and in a meeting eleven months after the termination, the municipality passed a resolution ratifying and approving the prior action, the later attempt to ratify and approve the invalid action and make the termination retroactively effective as of the date of the prior action was not effective.
Palenick v. City of Rio Rancho
, 2012-NMCA-018, 270 P.3d 1281, cert. granted, 2012-NMCERT-002.
Waiver of breach of employment agreement based on a violation of the act.
— Where defendant's city council terminated plaintiff's employment agreement; even though plaintiff believed that the city council had violated the Open Meetings Act and that plaintiff was still an employee of defendant, plaintiff demanded the severance benefits provided in the agreement; the correspondence between plaintiff and defendant concerning plaintiff's demand for severance benefits did not mention the circumstances surrounding plaintiff's termination; plaintiff did not object to defendant's letter informing plaintiff that plaintiff was no longer an employee of defendant; defendant paid plaintiff the severance package; the attorney general determined that plaintiff's termination violated the Open Meetings Act and that the violation invalidated plaintiff's termination; and plaintiff sued defendant for violation of the Open Meeting Act and for breach of contract, plaintiff's demand and acceptance of the severance package from defendant constituted a waiver of plaintiff's right to pursue claims against defendant for violation of the Open Meetings Act and for breach of contract.
Palenick v. City of Rio Rancho
, 2013-NMSC-029,
rev'g
2012-NMCA-018, 270 P.3d 1281.
Breach of employment agreement based on a violation of the act.
— Where a municipality terminated plaintiff as city manager in violation of the Open Meeting Act, plaintiff's acceptance of severance benefits did not constitute a waiver of plaintiff's right to salary and benefits pursuant to plaintiff's employment agreement.
Palenick v. City of Rio Rancho
, 2012-NMCA-018, 270 P.3d 1281, cert. granted, 2012-NMCERT-002.
Attorney's fees.
— Where a municipality terminated plaintiff as city manager in violation of the Open Meeting Act, plaintiff filed an action for enforcement of the act and for breach of contract to recover money due under plaintiff's employment agreement; and plaintiff's claim to enforce the act was dismissed for lack of jurisdiction, the court could not enforce the act in the breach of contract action by awarding attorney fees and costs under the act.
Palenick v. City of Rio Rancho
, 2012-NMCA-018, 270 P.3d 1281, cert. granted, 2012-NMCERT-002.