When the New Mexico State Ethics Commission votes in closed session on whether to file a civil enforcement action, does the Open Meetings Act force it to put the target's name on the public agenda?

Plain-English summary

The State Ethics Commission asked the AG how to write a meeting agenda when it goes into closed session to decide whether to authorize a civil enforcement action against an alleged ethics violator. The Commission was caught between two laws: the Open Meetings Act, which requires "reasonable specificity" on agendas so the public knows what will be discussed, and the State Ethics Commission Act, which keeps complaint and investigation records confidential until the general counsel makes a probable-cause finding.

The AG resolved the tension by reading "reasonable" as fact-specific. The Commission does not have to put the target's name on the public agenda. Listing the administrative cause number (if available) or the general statute under which the enforcement might proceed (Governmental Conduct Act, Financial Disclosure Act, Gift Act) is enough to give the public reasonable notice of the Commission's planned action.

The confidentiality statute, Section 10-16G-13, is not a formal OMA exception. The Commission cannot wholesale skip OMA's specificity requirement. But the confidentiality regime is part of the surrounding circumstances that shape what counts as "reasonable" specificity for this particular type of action.

The opinion also walks through the AG's prior compliance guidance: bare topics like "limited personnel matters" or "discussion of the purchase of real property" are not specific enough; agendas need to identify the individual or property at issue. The probable-cause confidentiality regime in the Ethics Commission Act is what distinguishes this situation and supports a more general agenda description.

What this means for you

If you are a New Mexico State Ethics Commissioner or staff attorney

When you draft an agenda for a meeting that may include a closed-session vote to authorize a civil enforcement action, you can describe the matter at a level that protects the pre-probable-cause confidentiality of the complaint. Use the administrative cause number (e.g., the SEC's case docket number) and the general statute under which the action would proceed, such as the Governmental Conduct Act, the Financial Disclosure Act, or the Gift Act.

Listing both the administrative cause number and the general statute is the AG's recommended sweet spot. Listing just one of them is also defensible if that level of detail still gives the public a meaningful notice of the topic.

After probable cause is found and the matter becomes public, the standard OMA specificity rules apply with full force. At that point, you should be naming the respondent on agendas if the Commission is taking action affecting them.

If you sit on any other New Mexico public body

The opinion's reasoning is broader than the Ethics Commission. When a separate statute imposes confidentiality on the subject matter of a closed-session discussion, that confidentiality regime can shape what "reasonable specificity" means for the agenda. Examples might include certain personnel investigations, juvenile matters, attorney-client privileged litigation strategy, and similar.

But the AG was careful: confidentiality is not a free pass to skip OMA's specificity. The opinion's earlier guidance still controls in the ordinary case. "Limited personnel matters" without naming the employee is too vague. "Real property" without naming the property is too vague. The Ethics Commission analysis is an exception calibrated to the State Ethics Commission Act's specific confidentiality regime.

If you are an ethics complainant or potential subject of a Commission investigation

Until the general counsel finds probable cause, your complaint or the investigation against you is confidential. The Commission's agenda discussions about your matter will use a cause number or general-statute description, not your name. After probable cause, the matter becomes part of the public record and the agenda specificity returns to the standard OMA rule.

If you believe the Commission is not following the OMA in some other respect, you can raise that with the Commission directly or with the AG's office, which handles OMA compliance complaints.

If you are a journalist or government-transparency advocate

You will see administrative cause numbers and general-statute references on Ethics Commission agendas in lieu of named targets, at least until probable cause is found. That is consistent with this opinion. You can still attend the open portion of any meeting, request the agenda in advance, and follow up after probable-cause determinations make matters public.

If you think a public body other than the Ethics Commission is using the same template to hide subject matter without a confidentiality-statute basis, the AG's prior letters (the 2018 University of New Mexico letter and the 2019 Mangum letter cited in the opinion) are the right starting points to push back.

If you are a public-meetings law attorney

The opinion confirms that the OMA's "reasonable specificity" standard is genuinely fact-specific (Franklin v. N.M. Department of Public Safety, 2022-NMCA-058) and accommodates statutory confidentiality regimes without treating them as formal OMA exceptions. The framework: identify the OMA exception that authorizes closed session, identify any external confidentiality statute, and calibrate agenda specificity to give the public meaningful notice within those constraints.

Common questions

Q: Why can the Ethics Commission be vague on its agenda when other public bodies cannot?
A: Because the State Ethics Commission Act, Section 10-16G-13, makes the underlying complaints and investigations confidential until probable cause. That confidentiality is part of the facts and circumstances the OMA reasonable-specificity test takes into account.

Q: What goes on the agenda then?
A: Either the administrative cause number assigned to the matter, or the general statute under which the enforcement might proceed, or ideally both.

Q: Does this mean the Commission can keep the target's name secret forever?
A: No. Once the Commission's general counsel finds probable cause, the matter becomes public and the standard OMA specificity rules apply. The target's name should appear on agendas at that point if the Commission is taking action affecting them.

Q: Is the confidentiality statute an OMA exception?
A: Not formally. The OMA exceptions are listed in Section 10-15-1(H). The State Ethics Commission Act's confidentiality regime is a separate statute that bears on what counts as "reasonable" specificity, but it does not exempt the Commission from OMA's requirements.

Q: What about other agency investigations with confidentiality regimes?
A: The opinion does not catalog those. The same fact-specific analysis would apply: identify any statutory confidentiality, then calibrate the agenda to provide meaningful public notice within those constraints. Whether an agency has the kind of confidentiality regime the SEC has is a statute-by-statute question.

Q: Can the public attend the closed session?
A: No. A properly noticed closed session under an OMA exception is closed to the public. The agenda specificity rule governs what the public is told beforehand about the topic, not whether the public can attend.

Background and statutory framework

The Open Meetings Act, NMSA 1978, §§ 10-15-1 to -4, requires public bodies to give the public access to government affairs (Section 10-15-1(A)). Agendas must contain "a list of specific items of business to be discussed or transacted at the meeting" (Section 10-15-1(F)), and motions to enter closed session must specify both the applicable OMA exception and "the subject to be discussed . . . with reasonable specificity" (Section 10-15-1(I)(1)).

The State Ethics Commission Act, NMSA 1978, §§ 10-16G-1 to -16, gives the Commission civil enforcement authority over the Governmental Conduct Act, the Financial Disclosure Act, the Gift Act, and other ethics statutes (Section 10-16G-9). Complaints are filed by anyone with actual knowledge of an alleged violation (Section 10-16G-10). The Commission's records related to alleged violations remain confidential until the general counsel finds probable cause (Section 10-16G-13(C); Section 10-16G-10(G)). The Commission may even petition for sealed subpoenas (Section 10-16G-5(C)(2)).

The opinion applies the standard New Mexico statutory-construction principles: legislative intent governs (State v. Ogden, 1994-NMSC-029), plain language is the primary source (Section 12-2A-19), but a strictly literal reading is rejected when it would lead to absurd results (Investment Co. of the Southwest v. Reese, 1994-NMSC-051).

The OMA itself requires "substantial, not strict, compliance" (Parkview Community Ditch Association v. Peper, 2014-NMCA-049). The "reasonable specificity" standard is fact-specific (Franklin v. N.M. Department of Public Safety, 2022-NMCA-058, applying the same approach to "reasonable" requirements in IPRA).

The opinion contrasts the Ethics Commission situation with prior AG guidance: "limited personnel matters" without naming the employee is insufficient (2018 letter to Kevin Gick at UNM); "discussion of the purchase of real property" without identifying the property is insufficient (2019 letter to Tanya Mangum). The Ethics Commission's confidentiality regime is what makes the more general description acceptable in this narrow context.

Citations and references

Statutes:
- NMSA 1978, §§ 10-15-1 to -4 (Open Meetings Act)
- NMSA 1978, §§ 10-16G-1 to -16 (State Ethics Commission Act)
- NMSA 1978, §§ 10-16-1 to -18 (Governmental Conduct Act)
- NMSA 1978, §§ 10-16A-1 to -9 (Financial Disclosure Act)
- NMSA 1978, §§ 10-16B-1 to -5 (Gift Act)

Cases:
- State v. Ogden, 1994-NMSC-029, 118 N.M. 234
- Franklin v. N.M. Dep't of Pub. Safety, 2022-NMCA-058
- Parkview Cmty. Ditch Ass'n v. Peper, 2014-NMCA-049
- Kleinberg v. Bd. of Educ. of Albuquerque Pub. Sch., 1988-NMCA-014, 107 N.M. 38

Prior AG guidance:
- N.M. Att'y Gen. Letter to Kevin Gick, University of New Mexico (Aug. 8, 2018)
- N.M. Att'y Gen. Letter to Tanya Mangum (Apr. 29, 2019)
- AG's Open Meetings Act Compliance Guide (8th ed. 2015)

Source

• Landing page: https://nmdoj.gov/publication/opinion/2025-01-opinion-open-meetings-act-requirements-for-state-ethics-commission-meetings/
• Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-2025-01.pdf

Original opinion text

January 10, 2025
OPINION
OF
RAÚL TORREZ
Attorney General

Opinion No. 2025-01

To:

The Honorable William F. Lang, New Mexico State Ethics Commission

Re:

Attorney General Opinion - Open Meetings Act Requirements for State Ethics Commission
Meetings
Questions

If, during closed session, the State Ethics Commission discusses whether to authorize a civil action
against a person—in circumstances where the Commission does not believe that alerting the person
to the action would be likely to induce the alteration or destruction of evidence—does the Open
Meetings Act's "reasonable specificity" requirement, NMSA 1978 Section 10-15-1(I)(1), require
that the Commission specify the target defendant's name in the meeting agenda?
If yes, does Section 10-16G-13's confidentiality-of-records provisions create an exception to
Section 10-15-1(I)(1)'s requirement that the Commission specify the target defendant's name in
the meeting agenda?
Answers
No, the Open Meetings Act's "reasonable specificity" requirement for meeting agendas does not
necessarily require the State Ethics Commission to specify the target defendant's name.
Section 10-16G-13 does not represent an exception to the Open Meetings Act's "reasonable
specificity" requirement for meeting agendas but is nevertheless relevant to the question of what
level of specificity is "reasonable" for the purposes of meeting agendas.
Background
The issues presented by this opinion request arise out of the language of two separate statutes: the
Open Meetings Act ("OMA"), NMSA 1978, Sections 10-15-1 to -4 (1974, as amended through
2013), and the State Ethics Commission Act, NMSA 1978, Sections 10-16G-1 to -16 (2019, as
amended through 2021). In interpreting each of these statutes, we begin with the basic principles
of statutory interpretation. "The principal command of statutory construction is that the court
should determine and effectuate the intent of the legislature." State v. Ogden, 1994-NMSC-029, ¶
24, 118 N.M. 234; see also NMSA 1978, § 12-2A-18(A)(1) (providing that "[a] statute or rule is
construed, if possible, to . . . give effect to its objective and purpose"). The plain language of a
statute "is the primary, essential source of its meaning." Section 12-2A-19. That being said, we
will reject a strictly literal interpretation if it leads to an absurd result. See Inv. Co. of the Sw. v.
Reese, 1994-NMSC-051, ¶ 13, 117 N.M. 655 (noting that "the Court must look beyond the four
corners of the statute" in cases where "the literal meaning leads to conclusions that are unjust or
nonsensical").
The OMA provides the public with access to "the greatest possible information regarding the
affairs of government and the official acts of those officers and employees who represent them."
Section 10-15-1(A) (emphasis added). See also Kleinberg v. Bd. of Educ. of Albuquerque Pub.
Sch., 1988-NMCA-014, ¶ 18, 107 N.M. 38 (noting that "the public policy of this state, as expressed
in the Act, is to conduct the public's business in the open, allowing persons, so desiring, to attend
and listen to the proceedings"). In line with the public policy behind the statute, the OMA is
broadly construed in favor of transparency. See Attorney General's Open Meetings Act
Compliance Guide, p. 7 (8th ed. 2015) ("OMA Guide") (noting that "doubt as to the proper course
of action should be resolved in favor of openness whenever possible").
Prior to holding any meeting, any public body is required by the OMA to provide the public 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." Section 10-15-1(F).
Similarly, before a public body may enter into closed session, an individual member must make a
motion to do so that specifies both the applicable OMA exception and "the subject to be discussed
. . . with reasonable specificity." Section 10-15-1(I)(1). Together, these requirements ensure "that
interested members of the public are given reasonable notice about the topics a public body plans
on discussing or addressing at a meeting." OMA Guide, p. 17.
Although to date no New Mexico appellate court has addressed the question of precisely how
specific an agenda item must be in order to comport with Section 10-15-1(F) and Section 10-15-1(I)(1), our Office has addressed this issue repeatedly in resolving complaints submitted by
members of the public. For instance, we have previously opined that the phrase "limited personnel
matters" is insufficient for a meeting agenda because, by itself, it identifies neither the individual
who is the subject of the discussion nor the type of action or issue the public body is considering.
See N.M. Atty. Gen. Letter to Kevin Gick, University of New Mexico, at 4 (Aug. 8, 2018)
(concluding that "to satisfy the reasonable specificity requirement, the public body must list the
specific individual employee to be discussed"). Similarly, we have also expressed our view that,
to discuss the purchase, acquisition, or disposal of real property rights in closed session pursuant
to Section 10-15-1(H)(8), the public body must provide some description of which property rights
are at issue. See N.M. Atty. Gen. Letter to Tanya Mangum (Apr. 29, 2019) (concluding that the
agenda item for "discussion of the purchase, acquisition or disposal of real property" did not "rise
to the level of reasonable specificity because no public member could possibly know which real
property the Town intended to discuss based on the agenda").
Notwithstanding these previous conclusions, however, it is apparent from the text of both Section
10-15-1(F) and Section 10-15-1(I)(1) that the OMA's specificity requirement is at least somewhat
flexible and dependent on the circumstances. Notably, the OMA does not require strict or perfect
specificity but instead "reasonable" specificity. In the past, when interpreting the Inspection of
Public Records Act, NMSA 1978, Sections 14-2-1 to -12 (1947, as amended through 2019), our
Court of Appeals explained that the word "reasonable" involves "an objective, under-the-circumstances approach" that involves considering all of the applicable "facts and circumstances."
Franklin v. N.M. Dep't of Pub. Safety, 2022-NMCA-058, ¶ 7. This objective, fact-specific analysis
is perhaps even more appropriate for the OMA, since New Mexico's appellate courts have
emphasized that this statute "requires substantial, not strict, compliance." Parkview Cmty. Ditch
Ass'n v. Peper, 2014-NMCA-049, ¶ 14.
Analysis
The OMA's "reasonable specificity" requirement for meeting agendas does not necessarily
require the State Ethics Commission to specify the target defendant's name.
With the above principles in mind, we turn to the question of the agenda specificity required of the
State Ethics Commission when considering whether to authorize a civil action. Pursuant to Section
10-16G-9 of the State Ethics Commission Act, the Commission has the statutory authority to file
civil actions in court to enforce a number of state laws, including (but not limited to) the
Governmental Conduct Act, NMSA 1978, Sections 10-16-1 to -18 (1967, as amended through
2019), the Financial Disclosure Act, NMSA 1978, Sections 10-16A-1 to -9 (1993, as amended
through 2019), and the Gift Act, NMSA 1978, Sections 10-16B-1 to -5 (2007, as amended through
2019). These matters may be brought before the Commission by any person "who has actual
knowledge of the alleged ethics violation" through the filing of a complaint. Section 10-16G-10(A).
As a general matter, the Commission's records related to alleged ethics violations are confidential
until the Commission's general counsel has made a finding of probable cause. See § 10-16G-13(C)
and § 10-16G-10(G); see also 1.8.3.16(A) NMAC. To that end, the State Ethics Commission Act
specifically authorizes the Commission to "petition a district court to issue subpoenas under seal
requiring the attendance of witnesses and the production of books, records, documents or other
evidence relevant or material to an investigation." Section 10-16G-5(C)(2). See also
1.8.3.16(A)(2) NMAC. Thus, in situations where the Commission is considering initiating an
enforcement action but has not yet found probable cause, the State Ethics Commission Act would
appear to require the matter to remain confidential until the Commission makes its decision.
Given the language of the State Ethics Commission Act with respect to the confidentiality of
complaints and investigations, we conclude that the OMA's "reasonable specificity" requirement
does not necessarily require that the Commission specify a target defendant's name in a meeting
agenda when considering the initiation of a civil action. Looking to the applicable "facts and
circumstances," Franklin, 2022-NMCA-058, ¶ 7, we think it would be "reasonable" for the
Commission to list the administrative cause number (if available) or the general statute under
which the enforcement action might proceed. Neither Section 10-15-1(F) nor Section 10-15-1(I)(1)
requires absolute specificity on the part of public bodies, and in our view stating either (or ideally
both) the administrative cause number and the general statute would provide reasonable notice to
the public of "the topics . . . [the] public body plans on discussing or addressing at a meeting."
OMA Guide, p. 17.

Section 10-16G-13 does not represent an exception to the OMA's "reasonable specificity"
requirement for meeting agendas but is nevertheless relevant to the question of what level of
specificity is "reasonable" for the purposes of meeting agenda.
With respect to your second question, we would note that Section 10-16G-13's confidentiality-of-records provisions do not necessarily represent an exception to OMA's reasonable specificity
requirement. Because OMA's requirement is one of reasonableness, dependent on the applicable
facts and circumstances, its reasonable specificity requirement is flexible enough to consider the
confidentiality conferred by Section 10-16G-13. Interpreted properly, this confidentiality is
entirely consistent with Section 10-15-1(F) and Section 10-15-1(I)(1).
Conclusion
In light of the foregoing, we conclude that the OMA's "reasonable specificity" requirement for
meeting agendas does not necessarily require the State Ethics Commission to specify the target
defendant's name. Further, while Section 10-16G-13 does not represent an exception to the OMA's
"reasonable specificity" requirement for meeting agendas, it is nevertheless relevant to the
question of what level of specificity is "reasonable" for the purposes of meeting agendas.
Please note that this opinion is a public document and is not protected by the attorney-client
privilege. It will be published on our website and made available to the general public.

RAÚL TORREZ
ATTORNEY GENERAL