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 opinion says the Commission need not necessarily put the target's name on the public agenda. It considers an administrative cause number (if available) or the general statute under which the enforcement might proceed (such as the Governmental Conduct Act, Financial Disclosure Act, or Gift Act) a reasonable way to give public notice in the circumstances addressed.

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.

The opinion does not decide what an agenda must say after a probable-cause finding. Review the circumstances of any later meeting under the OMA rather than treating the pre-probable-cause guidance as a rule for all stages.

If you sit on any other New Mexico public body

This opinion answers a question about the State Ethics Commission and the confidentiality rules in Section 10-16G-13. For another public body, use the OMA and the law governing that body to assess its agenda; this opinion does not decide how to describe other confidential matters.

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 depends on the State Ethics Commission Act's specific confidentiality regime.

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

The opinion says Commission records relating to an alleged ethics violation are generally confidential until the general counsel finds probable cause. When considering a civil enforcement action before that point, the Commission may use a cause number, the general statute involved, or ideally both to provide reasonable agenda notice. The opinion does not decide the agenda wording required after a probable-cause finding.

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

The opinion says an administrative cause number or the general enforcement statute can give reasonable notice on an Ethics Commission agenda while the matter remains confidential. You can review the agenda and attend the open portion of a meeting; the opinion does not address disclosure after a probable-cause finding.

For comparison, the opinion cites prior AG letters finding "limited personnel matters" and an unidentified real-property discussion insufficiently specific in the circumstances of those matters.

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. Dep't of Pub. Safety, 2022-NMCA-058) and accommodates statutory confidentiality regimes without treating them as formal OMA exceptions. For the Commission matter addressed here, the opinion considers the OMA agenda and closed-session provisions alongside Section 10-16G-13's confidentiality rules.

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: The opinion addresses an agenda for a proposed civil action while the underlying matter is confidential. It does not decide whether or when a target must be named on a later agenda after a probable-cause finding.

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 addresses the State Ethics Commission under Section 10-16G-13 and does not decide agenda requirements for another agency. Its cited prior guidance shows that a generic agenda description can be insufficient where the circumstances differ.

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 (Inv. Co. of the Sw. v. Reese, 1994-NMSC-051).

The OMA itself requires "substantial, not strict, compliance" (Parkview Cmty. Ditch Ass'n v. Peper, 2014-NMCA-049). The "reasonable specificity" standard is fact-specific (Franklin v. N.M. Dep't of Pub. 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)
• Attorney General'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