By JENS GOULD
New Mexican
Gov. Michelle Lujan Grisham signed a bill into law Thursday that aims to streamline New Mexico’s collective bargaining statute to better protect public workers, amid disagreement over how the legislation might affect access to open records.
House Bill 364 updates New Mexico’s Public Employee Bargaining Act and provides a timeline for the state to restructure its unusual system of 52 local labor boards, which supporters say leads to inconsistent labor policy and long delays on petitions to unionize workplaces.
“Our public employees — including teachers, sanitation workers, firefighters and police officers — deserve uniform rules and a uniform process to negotiate fair wages and safe working conditions,” Lujan Grisham said in a statement.
A dispute emerged around the legislation earlier this week when open-government advocates contended a provision in the bill would deny access to public information. Lujan Grisham’s office responded that critics’ reading of the bill was incorrect, and on Thursday both sides maintained their positions.
“There is no infringement upon or contravention of the public’s right to public information within this law,” spokesman Tripp Stelnicki said. “What was publicly accessible is very much still publicly accessible.”
The debate over public records centered on one section of the legislation that requires public employers to hand over employees’ personal and employment information to labor organizations representing those workers.
The section says that aside from disclosing that information to a union, “and notwithstanding any provision contained in the Inspection of Public Records Act,” the employer shall not disclose the information “to a third party.”
The New Mexico Foundation for Open Government said Thursday that while it was glad the governor expressed support for transparency, her office’s defense of the provision hadn’t changed its conviction that it will prevent the public from accessing information such as public employees’ names, salaries and hire dates.
“Only time will tell whether courts will construe the problematic provisions of House Bill 364 in the way the governor would like them construed or in the way they’re actually written,” the group said in a statement. “FOG urges the governor and the legislature to work with FOG to clean up the troublesome language during the next legislative session.”
The group also urged the Legislature to address “arcane processes and practices — many of which take place behind closed doors, or at the eleventh hour of the session” that it said caused a “drafting error” to be included in the legislation.
The legislation made it to the finish line in part thanks to a so-called dummy bill titled “Public Peace, Health, Safety and Welfare,” basically a blank placeholder with a generic name so that content can be added belatedly. That content was indeed later added, and House Bill 364 sailed through the House.
The Senate then passed it in the final hours of the session after it survived a lengthy, late-night floor debate prolonged by Republican legislators unhappy with how the bill had hastily passed the House.
Before reaching the House and Senate floors, it had been introduced as Senate Bill 110, which was tabled in the Judiciary Committee and then revived with revisions and sent to the Senate Finance Committee.
Republican legislators again took issue this week with how the bill was ushered through, urging the governor not to sign it.
“After being drafted and passed under cover of night, the light has shone on HB 364 and revealed a dangerous mistake,” House Minority Leader Jim Townsend said. “Transparency and fairness are principles that we can deliver to New Mexicans, let’s start by fixing this erroneous mistake.”
The intent of the debated provision, the Governor’s Office said, was to prevent sensitive personal information such as home addresses and phone numbers from becoming public when the state discloses it to a union.
The Foundation for Open Government took the word “notwithstanding” to mean “in spite of” — which is the first definition of the word listed in the Merriam-Webster dictionary. In other words, this interpretation would mean the information couldn’t be disclosed to a third party even though the Inspection of Public Records Act would allow for it.
Shane Youtz, an attorney representing the New Mexico Federation of Labor, which helped draft the bill, said Monday that the word “notwithstanding,” when used legally, actually “creates and identifies exceptions to a rule as contained in legislation.” This interpretation would ensure members of the public could access the information under the state’s open records law, he said.
As far as the main purpose of the bill, local labor boards will now have to prove that they have adopted standardized rules and have the support of public employers and employees in their jurisdictions. Those that don’t do so will be phased out.
“This legislation will assure accountability at the local level by requiring local labor boards to adopt standardized rules or default their duties to the New Mexico Public Employee Labor Relations Board,” Lujan Grisham said.
The governor also signed Senate Bill 98 on Thursday, which penalizes contractors who pay workers less than appropriate prevailing wages.
