Sunday, July 31, 2016

More Reflections and another Convention

More reflections on events near and far . . . 

A finance website ranks Las Cruces 12th “best-run” among 150 cities on factors including financial stability, education, health, public safety, economy, and infrastructure/pollution. Although the city council doesn't control all those areas, the ranking suggests our local government ain't the disaster some critics claim it is.

Meanwhile our local political embarrassment, County Treasurer David Gutierrez, is threatening to sue the county. I doubt he's that dumb. Frivolous lawsuits can boomerang. Judges can order plaintiffs to pay for legal fees their bogus claims cost defendants. If he sues, and the county wants some volunteer legal help, I'm in. You harass an employee by offering a $1,000 for sex, refuse to resign, fire your chief clerk, and cost us healthy settlement payouts to both your victims, then complain when the county wonders if you should pay something? 

We're two nights into the Democratic National Convention. Someone reading my last column, which touched on the Republican Convention, urged me to write on this one, too.

Is Hillary Clinton my favorite politician? No. I disagree with many of her stands, including her initial support of the TPP. I also dislike the way party machinery apparently took sides in the primaries.

But I have to respect her for surviving not only Bill's very public infidelities but literally decades of expensive efforts to prove she killed Vince Foster or called off forces that could have saved lives in Benghazi, or committed various other crimes. (Enemies' repeated allegations, despite failures to prove their truth, have damaged her reputation. Closest call? Aware that the state department server was a poor security risk, she used a private email server, much like what previous secretaries of state did. Against regulations. She shouldn't have done it. But if I'd been advising her, I might have advised her to do it.

Even before Bill's reminder Tuesday night, I thought back to how she began: a young woman trying to make things better. Briefly she thought Barry Goldwater was the way. Then she became a Democrat, fighting poverty and protesting a stupid war. Trying to improve people's lives. While Donald Trump was getting a $7 million head start from his father. Fred also co-signed loans essential to Donald's first big project, then bailed him out a couple of times with more millions, before Donals put six companies through bankruptcy and bragged to the world about what a great businessman he was. Come again?

Do I think Hillary lost her way somewhat? Yes. Big bucks for speeches at big banks the government needs to rein in? Not good.

For a moment Monday night during Elizabeth Warren's speech, did I wish she were the candidate? You betcha. Clearer, cleaner, purer. (I also think Trump, who says whatever comes into his head, poses a unique debating challenge that Warren's style would crush.) 

But which of us hasn't lost our way somewhat? I was a civil rights worker and antiwar leader, but got distracted for decades frittering away my abilities representing corporations against each other in huge lawsuits. Fun; intellectually challenging; comfortable; but not the best contribution I could have made to the world. So I won't judge Hillary too strongly.

This election pits a party of inclusiveness, tolerance, even love, against one running on hate and fear-mongering. Oversimplification? Sure; but with a fair quantity of truth.

Trump's a pathological narcissist with no ideas beyond self-aggrandizement and no program beyond divisiveness. Hillary's a well-intentioned lady, experienced and imperfect, who has dedicated much of her life to improving our country. I see a major difference.
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 31 July 2016, and on the newspaper's website, and will presently appear on KRWG-TV's website under News --> Local Viewpoints.]
[The column was written after the first two nights of the four-night convention that ended Thursday night.
First, aside from which party one sympathizes with, the Democrats put on a much tighter and professional show.  That's partly a difference in skill or dedication or funds, but also reflects what each party had to deal with.   
Notably, each party had to deal with a level of internal dissension unusual in recent presidential conventions, although it used to be quite the norm. 
Among Republicans, you saw a lot of delegates who passionately loved Trump's candidacy, but also many who sat on their hands; Ohio Governor Kasich refused to attend the Convention, though he was in Cleveland; Ted Cruz said what he said; all the Presidential and would-be Presidential Bushes stayed away.  In Philadelphia, much of the first night belonged to Bernie Sanders; some of his delegates were clearly angry about HRC's nomination, as they had every right to be; but Sanders gave a strong endorsement speech and most of his supporters responded strongly to Hillary. 
Folks could reasonably argue about why there was such a difference.  Cruz is the most hated U.S. Senator among other Senators and is a strange fellow, while Bernie has been in Congress for decades working with all sorts of people he doesn't always agree with.  One could argue that Cruz's hurt feelings were anomalous in politics -- or that Trump's vicious personal attacks were the anomaly.  Trump called Cruz "Lyin' Ted," talked about Cruz's wife, and followed the National Enquirer's lead in suggesting Curz's beloved father was in cahoots with Lee Harvey Oswald; and he said unusually vicious and personal things to several other candidates, some of whom brushed them off.  My own view, of course, is that Trump represents a unique danger among U.S. Presidential nominees and that anyone with good sense (including every man who's sat in the Oval Office and most Republicans who've been nominated for the office) would have declined to endorse Trump.  Thus you can't necessarily fault the folks running the Convention.  It's easier when your party's current former presidents are solidly behind your nominee and the two whose health allows them to attend are also great speakers; by contrast, Republican convention organizers weren't going to convince Romney or McCain or either President Bush to show up -- just Dole, who looked kind of lost, but grateful to be remembered.)  (I do think Trump's Republican competitors should have declined to take the "Pledge" to support any eventual nominee.  Early on, they were so desperate to keep Trump from running as a third party candidate that they all pledged their support -- despite the obvious fact that Trump's word would mean nothing and that  he himself, if not the nominee, would keep or break his word based on what he felt like doing at the time.)
One should also note that the Democratic organizers had a handicap: they had to deal with all the justified anger about the released emails and Ms. Wasserman-Schultz. 
Beyond those division, the Republican convention seemed disorganized, kind of sad, and bereft of real stars, while the Democratic convention was a powerful, unifying eventWill the difference be as big in get-out-the-vote efforts?


Sunday, July 24, 2016

Black Lives and Blue Lives Matter; Plagiarism a Small Symbol of Problems in Trump's Campaign; and Other Reflections

Some reflections on recent events. 

The Republican Convention's first night reminded me of a B-movie in which a businessman gets nominated for president. Trump and his wife looked the parts, but B-pictures rarely had top stars. Mr. and Mrs. Trump were a little wooden. Not quite convincing.

Melania's plagiarism of Michelle Obama ain't no big thing; but it's typical of Trump's sloppy campaign. Most of us would have had the speech vetted by speechwriters and lawyers; but Trump knows better. What Trump does must be right. Campaign vehemently denies plagiarism, then blames speechwriter, who falls on her sword. She says Melania, who admires Michelle, read her the words over the phone, and she didn't check to be sure they weren't Michelle's exact words; but when she hands the speech to Melania, why doesn't Melania notice how exactly the speech tracks Michelle's words? 

Someone called introducing VP and wife “layups.” Trump missed one and committed a foul on the second.

I was sorry to hear Undersheriff Eddie Lerma resigned. Several DASO officers told me they were sorry to hear it too. According to them, Lerma was kind of sorry too. They say Lerma was surprised to hear from Sheriff Vigil that he had resigned, mostly because he hadn't. 

Moving on: there is no excuse for assassinating police officers. No sane person would do it. No sensible person would defend it.

Black lives matter. Should be obvious, but needs saying because our society doesn't quite seem to realize it. 

Blue lives matter. Also obvious, but people forget it. Police shooting of young blacks help people forget that blue lives matter, particularly when too many of those shootings seem indefensible. But blue lives matter.

Most obviously all lives matter. People shouting black lives matter don't mean other lives don't. But our society doesn't need reminding that white lives matter. We assume it. I hope the people shouting “blue lives matter” also know that all lives matter. They just don't get why many blacks hate police or why many whites mostly ignore cops when cops risk their lives daily and many of them truly want to serve. 

People shouting “All lives matter!” as if that solved the real problems others are pointing to, are clue-impaired.

We all need to to communicate better. Particularly police and black communities. How do we help that happen? 

Forty years ago in this town I was a young radical with long hair. One night I entered a house with two police officers, after neighbors called in a burglary-in-progress. Typical Cruces house: hallway with doors to bedrooms or bathrooms on both sides. At the end of the hall, on the left, a door opened. One cop jumped into a bedroom. I jumped into a bedroom. The lead cop had nowhere to go. He pointed his gun and shouted “Freeze!” as a tall Hispanic man emerged. 

Turned out the guy was a friend of the absent homeowners. The neighbors hadn't known he would be staying there. He'd been napping. Fortunately he quietly raised his hands. Startled out of sleep, he could have made some sudden move. I realized how easily the cop might have shot him, and that I'd probably be testifying for the cop. The cop realized the same thing. He was literally shaking as he spoke softly of what might so easily have happened. 

We could try not judging people nearly so much.

We can implement good ideas, positive steps for our community. Such as the detention center citizens advisory committee? Good idea. Commissioners liked it. Sank like a stone in a pond.

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 24 July, and will appear presently on the KRWG website, where my friend Algernon D'Ammassa has articulated some similar thoughts and feeling in a column urging us to unite Black Lives Matter and Blue Lives Matter.]

[There's obviously a lot more to say about several of the topics I touch on above.  I mention one personal experience that helped me understand the challenges police face; but both before and after that I had many experiences that illustrate the extra challenges police pose for ethnic minorities (and political dissenters, sometimes).  Saw it in the South in the mid-'60's, where it was blatant racism and not limited to the police.  

But racism was never limited to the South; and it wasn't and isn't limited to police.  Rather, because police are on the front lines the racism shows up more often and more dramatically (and tragically).  I saw it in the late '60's in New York, where people stared when I was out with a black woman and where a black friend and I acted out little riffs (one of us pretending to be the other's servant) to mock or challenge people; I saw it in San Francisco, where my best friend in San Francisco, who was also one of the best lawyers in town, not only got stopped for being a big black man in a spiffy convertible but even had police come and question him when they saw him washing his car in his own driveway -- and when I watched a very white and conservative general partner in a law firm unconsciously start trying to imitate ghetto jive when he went over to that same friend at a party; and in D.C. in the 1990's, where a younger lawyer noticed that whites sometimes crossed the street at night just to avoid passing him on the sidewalk.   

These people weren't "racist" in the sense George Wallace of Strom Thurmond or David Duke was, where it was a passionate cause central to their existence; they were just, they would have said, being careful.  Prudent.   But it's that same instinct (encouraged, yes, by the fact that young black men are disproportionately represented both among killers of police and among victims of police shootings) that too often leads a cop to pull his gun and use it a lot more quickly with a black citizen than with a white citizen.]

[As to Trump's campaign, I agree with the Washington Post, which recently editorialized that Trump (regardless of ideology, of which he has none except growing the Trump brand) poses a danger unique among Presidential candidates because of his pathological narcissism.  A friend at the market asked me what I thought a Trump Presidency would be like, and I replied that the danger is, we don't know.  Trump has been on both sides of most issues, has rarely if ever read a book, has no real "center" as a man or a politician.  But we do know he has lied pathologically, about everything from his father's ethnicity (claiming Swedish when the truth was German) and his wife's education (degree in design, when she apparently attended a few first-year college classes) to his own career (downplaying the fact that his father gave him $7 million -- real money back then -- to start with and then bailed him out repeatedly and co-signed the loans for his first big project; when Trump and his siblings sold just some of his father's real estate holdings in New York a few years after Fred Trump died, that brought in nearly a half billion dollars).  Sure, Hillary has changed her position on some issues, as most politicians (and most people, if they keep learning as they mature) have done; but Trump has no real positions.

So Melania Trump's plagiarism, small in itself and not terribly unusual fits right in; but the fact that no one caught it is telling.  "An error like the one Melania Trump committed last night tells us that the Trump campaign lacks seriousness and structure, which is also demonstrated by its divisive style, weak ground game, and poor fund-raising numbers," commented Michael Gerson, formerly George W. Bush's chief speechwriter.

Above all, try to read   Jane Mayer's piece on Trump in the latest New Yorker issue, including a detailed interview of the man who wrote The Art of the Deal for Trump.  It rings very true.]

We can implement good ideas, positive steps for our community. Such as the detention center citizens advisory committee? Good idea. Commissioners liked it. Sank like a stone in a pond.

Sunday, July 17, 2016

Minimum Wage Redux

The first stage of the local minimum-wage hike has not created the disaster opponents predicted.

The petition-mandated ordinance called for an initial raise from New Mexico's $7.50 to $8.40, then in two more stages to $10.10. To soften the impact on businesses, the Las Cruces City Council stretched out the process, so that the minimum wage rises again in January 2017, then to $10.10 January 1, 2019. 

Whether that amendment was wise or unwise, it violated the City Charter, which required the council to pass the ordinance unchanged or let all citizens vote on it.

The Council also directed a July 2016 “interim report,” and received it Monday.

City figures tended to show growth in the GRT (independent of rate hikes) and building-permit values. The figures did not purport to be precise, or to separate out different causes and effects. Critics said that there was more growth in El Paso than here (implying that our higher minimum-wage hindered Las Cruces) and that $8.40 is below the $8.50 the business community proposed in a belated compromise effort during the petition/initiative process. Pic Quik owner Oscar Andrade predicted many small businesses will go under next year because of the minimum-wage hike.

The vast majority of those speaking to the council on Monday praised the hike and urged the Council to “stay the course.” The council heard sometimes moving testimony from low-income workers whose lives the wage hike has improved. One anonymous server, whose letter was read by a retired minister, said that since she's now getting a small weekly check to supplement her tip income, she can take her kids to the swimming pool and even buy each an ice cream cone.

I'm no economist. I thought the protestations in 2014 were exaggerated, and I hope they are now; but we shouldn't lose sight of the value local business owners create. Although they often get well rewarded for owning a business, they create jobs and provide some appealing features of local life. (Where would I be without Milagros, Spirit Winds, Toucan, the Mountainview Market Co+op, Coas, Caliches, Mascitelli's, Al's, The Big Picture, Habañeros, La Nueva Casita, Cafe de Mesilla, a host of Farmers' Market vendors, and other local businesses?) Further, when people are collecting donations on behalf of non-profits or causes, many visit local businesses, and some business-owners give generously.

Unfortunately, some local businesses also funded the vicious and misleading campaign to recall city councilors who tried to follow the city charter on minimum-wage. Those businesses deserved to face negative consequences; we are all, myself included, either too forgiving or too lazy for our own good; but then, it is a small community. We can hope some of the recall advocates learned from the defeat of that effort and the (admittedly narrow) success of progressive candidates in the 2016 election. Minimum-wage was a discussion point, and the candidates who were more enthusiastic about raising it tended to prevail.

I hope businesses will back off from supporting reactionary and divisive local candidates. (Another campaign as vicious as the recall effort would deepen the political chasm. Many of us would no longer be able to find a bridge to local businesses that supported such efforts.)

But I also hope those of us with more progressive views won't write off such local businesses prematurely.

For the moment, congratulations to CAFé and the volunteers who gathered signatures, and to the councilors who followed the City Charter. It's hard not to be moved by the expressions of gratitude we heard Monday. 
Together, I hope we can keep all the expressed fears from coming true.

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 17 July 2016, and will appear presently on the KRWG-TV website.]

Sunday, July 10, 2016

Guns and Dialogue

Tuesday's raucous city council meeting highlighted two problems: we need to decrease gun-deaths in the U.S. and that it's hard to have an honest dialogue.

Both sides seem dug in. One woman said that the opposition was “demonizing us gun owners,” and other speakers promptly demonized the “liberals and progressives who want to take our guns away.” Most on both sides seemed sincere. Not many recognized the sincerity of opposing speakers.

Compared to other prominent nations, the U.S. has way more guns and way more gun deaths. The gun-death epidemic ain't cool. But reasonable people can differ on how big a causal factor large numbers of guns are, what corrective actions might decrease the deaths, and how those actions do or do not square with the Second Amendment.

Both sides offered slogans; but there was no chance to go further, to ask probing questions, to allow each side to speak more deeply and meaningfully. Perhaps people of good will might even learn something. 

None of us knows it all. I sure don't. I'm ill-equipped to spot flaws in the various proposals. 

I'd love to see a local task force of people who also don't know everything, but at least know different somethings. If we can take reasonable steps that would decrease gun-deaths, we should. Those need to be both practical/sensible and legal/constitutional. Taking away everyone's guns is not the goal. Aside from whether it would be right or Constitutional, it ain't gonna happen. Prohibition of alcohol and the war on drugs haven't worked. 

It's time to unite the deep concern people have on this issue with the knowledge serious gun owners have.

The city passed a resolution, not an ordinance, urging the State to act to close a loophole in laws requiring background checks, which most of us accept the need for. It has no legal force. If the State acts, the action will not solve the problem. It may help a little.

Tuesday, I was particularly annoyed at the NRA. Sincere and angry people, who fear everyone else wants to take away their guns, delivered and appeared to believe NRA lines that simply aren't true.
One repeated, “Switzerland requires every man to own a gun.” Ain't true. (On my blog, I'll provide links to sources.) Most Swiss men do serve in the army; and the army issues guns, which may be kept at home. In earlier times, fearing a sudden invasion by a larger neighbor, the Swiss required soldiers to be ready to fight their way from home to wherever. But today Switzerland requires gun permits and forbids privately-owned automatic weapons. The “requires everybody” story is false. So is the assumption that what works for a unified little nation such as Switzerland would necessarily work here. Yet there likely are lessons we could learn from the Swiss. 

One local Tea Party leader called consideration of the resolution an illegal ploy to “take away our sacred right” to trade, buy, and sell weapons.

There is no “sacred” right. Jesus never promised unrestricted use of weapons, and never made them “sacred.” There is a constitutional right, the precise nature of which – as with all legal matters – judges and scholars interpret in varied ways.

There's a constitutional right to travel state-to-state, although I damned near have to strip to exercise it. Even freedom of speech gets regulated around the edges. And freedom to pursue happiness doesn't permit you to do drugs that make you happy, or steal your neighbor's TV.

We share this wonderful corner of the Earth, so let's keep talking to each other – and listening.

[The above column appeared this morning in the Las Cruces Sun-News this morning, Sunday, 9 July, and will presently appear on the newspaper's website (under Opinion: Real Dialogue Needed) and KRWG-TV's website (under News --> Local Viewpoints).]

[A lot happened after I wrote this!  The week included two very publicized shooting of black men by police and the assassination of five Dallas police officers by a black man angry about those shootings. Obviously these were all tragedies.  There is no justification at all of the Dallas murders; the police shootings strongly appear unjustified, pending further investigation.  The obvious fear is that both police and young black men will fear and distrust each other even more deeply -- with some good reasons and some bad on both sides -- and act unwisely.   The obvious need is for enhanced communication and understanding.  Police need even more training, and better understanding of young black men and black ways; and communities need to recognize that police have a tough and dangerous job requiring split-second decisions without full information.  How do we make that happen?]

[One thing left unclear after the City Council meeting was this: Greg Smith and Ceil Levatino sought to delay the vote so that there could be fuller community discussion, and Mayor Miyagashima and the other councilors also seemed to favor further discussion.  My perhaps mistaken impression was that although they had voted on the resolution, they'd also called for further discussion at a work session.  Although Greg Smith's reference to a possible "consensus" is so optimistic as to be nonsensical, I think we all believe that progress locally can only come from further and more meaningful dialogue.  Even if no further "rules" result, which is most likely, the meeting described in the column proves how much gun owners and gun control advocates, generally, need to understand each other better.  That doesn't have to be through a city work session, and there are likely better venues (perhaps including a Great Conversation); but it needs to happen.]

[The column mentions the gun industry's misleading attempt to justify lax gun control by arguing that Switzerland "requires all men to own guns" and has a very low homicide rate.  This site asks whether the gun industry's comments about Switzerland are fact or myth, noting that in fact Swiss gun regulations are pretty strict.  This is Wikipedia's article on the Swiss and guns , which is fairly detailed.   There's also this Time Magazine piece on the Swiss gun culture.  The fact that the gun industry misstates the facts about Switzerland doesn't mean that we might not learn from the Swiss example.  Unfortunately, it wouldn't be easy to transport Swiss rules and norms from a small, homogenous, European nation with a culture of "community before individual" to a sprawling, heterogenous nation that emphasizes Individualism above all. 

Another misleading use of Switzerland that we see after nearly every shooting tragedy is the  comparison of Switzerland and Honduras which notes that each has about 8.2 million people, but the Swiss, with more guns, have fewer gun deaths -- ignoring that one is a wealthy European country surrounded by peaceful neighbors while the other is on a drug-running route.  The comparison claims the Swiss require gun ownership while the Hondurans ban guns, yet Honduras has the world's highest homicide rate and Switzerland the lowest.]

Sunday, July 3, 2016

City Fights IPRA Lawsuit

Las Cruces City Government has refused to let Heath Haussamen inspect city manager applications. Under the Inspection of Public Records Act, does it have a legal leg to stand on?

Not that I can see.

Numerous New Mexico cases stress that guaranteeing public access to public records is essential in a democracy because the integrity of elections depends on an informed public. Providing such access is “an essential function” of government entities. Courts interpret IPRA broadly, to prioritize openness in government.

Two cases seem particularly relevant here: City of Farmington v. The Daily Times and Toomey v. Truth or Consequences.

Farmington concerned whether the municipality could withhold city manager applications. The court said, “No!” The court noted that if the applications weren't available, the public would have to accept officials' claims that they acted appropriately. “In this Court’s opinion, New Mexico’s policy of open government is intended to protect the public from having to rely solely on the representations of public officials that they have acted appropriately.”

Toomey concerned videotapes a third-party under a city contract made of city council meetings. Plaintiff served an IPRA request. Defendants denied it, saying the videos were in the hands of a third-party, not the city. The court essentially said that was nonsense. Public records couldn't be hidden from the public by such a dodge. Not everything a contractor ever does for a city is a public record. For example, an architectural firm's internal calculations and communications about a project it's hired to design for a city wouldn't be public records. Where the third-party is performing a governmental function, however, the documents are public records. A private entity that “contracts with the city to perform a public function is subject to IPRA.” 

What could be more clearly a governmental function than assessing applicants for the city manager position? 

Farmington makes clear that the applications are public records. Toomey shows that using a private consultant shouldn't change that fact. As the Court of Appeals said, “the dispositive question is whether the recordings of the City meetings were made on behalf of the City so as to constitute public records within the meaning of IPRA.”

Toomey adopted a nine-factor test for courts to use in deciding such issues.  The City, in its Response filed Thursday, argues that the “totality of factors” test supports the City here. The City notes that only some of the nine factors help Heath. But those are the most critical. (See my blog post today for further discussion.)

Full disclosure: I'm a strong believer in IPRA and I'm currently litigating an IPRA case, though not against the city and not about manager applications.

I recognize the reasons Cruces or NMSU would wish to withhold applications from prospective managers or football coaches. Almost all of those applicants are already managers or coaches (or assistants) somewhere else. Some will feel freer to apply for a new job if they can keep their current employers in the dark until they know they're leaving. 

There are often reasons officials want to keep public documents from view. Sometimes good reasons. Our Legislature has set the rules: except in certain narrow areas (such as attorney-client communications, personnel files containing opinions, ong oing investigation records that could reveal a confidential source or method) it's more important for a democracy's population to see public documents. 
That's the law.  I'm familiar with the cases; and a quick look at the Response suggests it's a game try but shouldn't prevail. 
If the Councilors want us to obey city ordinances, they oughtta set a good example.

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 3 July 2016, and should appear presently on the newspaper's website (under "Opinion") and on the KRWG-TV website (under News-->Local Viewpoints).  I welcome questions criticism, and other civil responses here or on those sites.]

[I wrote this column because it seemed time to write it.  Then I realized the City's Response was due Friday.  I went with the column anyway, figuring that I could use this blog post to make observations concerning the City's Response. (I also had not read the Petitioner's (Heath's) Petition for Writ of Mandate prior to drafting the column.  Still haven't.)]

[The column mentions the nine-factor test stated in Toomey v. Truth or Consequences, adapted from one enunciated by Florida's Supreme Court in a Florida public records law case.  The nine factors are:
1) the level of public funding;
2) commingling of funds;
3) whether the activity was conducted on publicly owned property;
4) whether the services contracted for are an integral part of the public agency's chosen decision-making process;
5) whether the private entity is performing a governmenta function or a function which the public agency otherwise would perform;
6) the extent of the public agency's involvement with, regulation of, or control over the private entity;
7) whether the private entity was created by the public agency;
8) whether the public agency has a substantial financial interest in the private entity; and
9) for whose benefit the private entity is functioning.]

[My first reaction to the present case was that the Court of Appeals would have little trouble ordering the City to turn over the applications.  First of all, the surrounding discussion makes clear that if the private entity is performing a truly governmental function, that's the basic issue.   The court says so.
Applying the nine-factor test:  (1) the work of reviewing applications and dealing with applicants for Las Cruces City Manager was certainly paid for by Las Cruces;  (4) the services would seem integral to the decision-making process selecting a new city manager; (5) recruiting and evaluating applicants seeking to be the City Council's sole employee would sure seem "a governmental function or a function which the City would otherwise perform; and (9) the Mercer was doing this work for the benefit of the City, although one could equally say Mercer was doing this work to make a profit.
I assumed there'd be (2) no commingling of funds; I didn't know (3) how much of the activity was conducted on City property; (6) control and regulation would seem a push, in that while the City wouldn't micromanage Mercer's work, the City undoubtedly gave Mercer some direction and standards and could have terminated the Mercer contract for cause if it didn't like something; and the City (7) certainly didn't create Mercer and (8) has no financial interest in Mercer.

Thus three factors (the most important ones) support finding these are public records, and three are pretty inconclusive, while the City's best arguments are that it didn't create Mercer, and has no financial interest in Mercer, and much of the work  was done elsewhere.

Where it's so clear that this is a public function, a key part of the making of an important public decision, the documents related to that likely will be found to be public records.  (By contrast, if Heath were asking for Mercer's profit and loss statement or a list of other accounts it had handled, those likely would not be public documents unless they'd been given to city officials.)  It would be hard to read the full decision (not just the list of nine factors) and not conclude the Court of Appeals is likely to hold that these applications are public documents.  For one thing, the discussion emphasizes the public function / public decision point, not whether there was commingling of funds.  I'd guess some of those factors are there to help guide the court in a closer case, not involving such a key public function as choosing a city manager.  But I guess we'll see.

Basically: the City has stressed that unlike many other entities involved in these cases, Mercer is not a creature of the public entity it is performing work for.  But where that work is such basic public work the court should conclude that the requested documents are public too.  City residents paid for the work and will be affected by that work, and deserve to be able to see the documents.  That's the overriding theme and mandate of IPRA. As the Toomey court stressed, "We emphasize, however, that IPRA should be construed broadly to effectuate its purposes, and courts should avoid narrow definitions that would defeat the intent of the Legislature" because "access to information concerning the affairs of the government is a fundamental and necessary right of every person in this state."

Also public, although I don't know that Heath asked for them, would be contracts and correspondence showing how the City came to hire Mercer to do this work, what we are paying for it, and what guidelines were given Mercer. ]