Just how transparent —and legal— are Village Council deliberations during pandemic limitations and online meetings? More precisely, have members of the council engaged in the illegal practice of a “rolling quorum” in discussing matters that may come up for a vote at a future meeting? Ostensibly as orientation for the newest member of the council, Tyson Parker, explanations of what constitutes a “rolling quorum” were given by Village Attorney Randy Autio and Village Clerk Aaron Gjullin at the council’s February 9 Zoom session.
Gjullin warned that infractions of the State’s Open Meetings Act probably have been occurring over the past year as councillors try to deal with difficulties arising from COVID-19 restrictions. But really, Corrales officials have run afoul of “rolling quorum” regulations for decades. (See Corrales Comment Vol.XXIX No.13 August 21, 2010 “Do Officials’ E-mails Violate ‘Open Meetings’ Act?”)
The problem typically arises when councillors make phone calls or send emails to one another about things that will be on a future meeting agenda, he said. “It’s really easy to slip up,” he cautioned. “We all have made mistakes.” Sometimes it happens when, as Village Clerk, he sends out an email to all councillors about something that will be discussed at a coming council meeting. “It’s only when you respond [to such a shared email] that a ‘rolling quorum’ becomes suspect. “At the end of the day, it’s a really simple, easy mistake to make. And we have all made it at one point or another.
“It would be very sad if, for example, we were looking at an ordinance, and I sent a draft in a packet to everyone, and then you start discussing how you’re going to vote or any concerns you have with it, that should be done in a public setting, in an open setting.
“That has never happened at least in my tenure here, but that’s an extreme example of how a ‘rolling quorum’ can happen.” He summed up the ongoing problem this way. “For sure, if there are four or more councillors on an e-mail chain and you start talking among yourselves, that could easily results in a complaint if somebody did a request for inspection of public records.”
Mayor Jo Anne Roake explained how the problem arose when she served on Planning and Zoning. “It was very inadvertent. One Planning and Zoning commissioner would say something in a email, and somebody else would chime in and then maybe it would scroll down to somebody else. We just kept adding people. That also was a problem, although back then people hadn’t really thought about it.
“It wasn’t just that we were all there at the same time. It was like ‘Hey, so and so had a great idea’” and a discussion by email evolved.
Autio further explained, “That’s right. It doesn’t have to happen all at once. People might keep responding at different times to the email, and unless it’s only about scheduling, is not a good idea.”
Gjullin said “Even if it’s just you and one other councillor, you shouldn’t be doing business about what’s on the agenda outside of a meeting.” The Village Attorney added, “Kind of the key is, when you find yourself doing more than when council meetings are going to occur, and you get into the substance of what is on the agenda, and you’re doing it between councillors, that’s when it’s a problem. “If you’re doing it between you and staff, that’s not a problem.”
The New Mexico Foundation for Open Government has explained the ‘rolling quorum’ problem as follows. “It doesn’t matter whether it’s called a work session, retreat, training seminar or phone tree, under the Open Meetings Act, a meeting occurs whenever a quorum of a public body: a) formulates public policy, b) discusses public business, or c) takes action.
“A quorum is generally half the members plus one, unless otherwise specified in the board’s law or regulation. The quorum doesn’t need to be in the same room to hold a meeting; they might discuss public business in a series of e-mails or phone calls, over several days. This is called a rolling quorum, and it’s illegal unless the participants follow all the requirements of the Open Meetings Act.
At a work-study session with the mayor and councillors back on July 20, 2010 N.M. Municipal League Attorney Van Vleck listened to councillors’ complaints about what they felt were unreasonable constraints on what they could discuss among themselves online between regular council meetings.
Councillors engaging in phone calls, e-mails or sequential one-on-one discussions in person about pending public issues constitutes an illegal “rolling quorum” in which decisions are arrived at away from public scrutiny. Such practices have been a continuing source of controversy in Corrales for decades.
Then-Councillor Gerard Gagliano especially had argued current interpretations of the Open Meetings Act were unnecessarily impeding council members’ ability to learn about issues that were, or might be coming, before the council for decisions. At the 2010 work-study session Gagliano suggested that “We all get that creating a ‘rolling quorum’ is a bad thing,” and that councillors’ discussions about public issues should not be held in private. But he argued, as he had in the past, that contemporary internet techniques allow anyone from the public who wishes to do so to monitor, or perhaps even participate in, such online conversations.