AG: UNM vote to cut sports unlawful

Opinion says regents should repeat meeting due to incomplete notice

A controversial decision to ax four sports at the University of New Mexico occurred in violation of the state’s open meetings law and could therefore be invalid, according to the New Mexico Attorney General’s Office.

Hector Balderas’ office is calling on the university’s Board of Regents to repeat the meeting, this time with proper notice and a full explanation of the matters to be discussed — inspiring hope among some that a second session might change the outcome.

The regents voted 6-0 on July 19 to approve a plan to eliminate men’s soccer, men’s and women’s skiing and women’s beach volleyball and to cut diving from the women’s swimming and diving program and dramatically reduce the men’s track and field roster for two primary reasons: finances and to get the Athletics Department in compliance with federal Title IX gender equity guidelines.

The sports were to be discontinued after the 2018-19 season.

But UNM failed to provide the public with “sufficient information” about possible action in advance, according to an opinion issued Wednesday by Assistant Attorney General John Kreienkamp.

The opinion was issued in response to two formal complaints filed by private citizens after the July 19 meeting and vote.

The agenda for that meeting mentioned only a “discussion and action on athletics,” which Kreienkamp said failed to meet the New Mexico Open Meetings Act standard of providing the public “the greatest possible information.” The language could have encompassed nearly any athletics matter, he wrote.

“The board could just as easily have defunded any or all of its other sports programs or, for that matter, taken a completely different action like changing team uniforms,” the assistant attorney general wrote in Wednesday’s letter to UNM attorney Kevin Gick. “Based on that description, an interested member of the public could not reasonably anticipate that the Board would be considering defunding the four specific athletics programs it eventually took action on.”

He said regents should hold a new meeting within 15 days to “reconsider its actions.”

A UNM spokeswoman said Wednesday that the university is deciding how to proceed.

“The University of New Mexico is committed to transparency and accountability,” spokeswoman Cinnamon Blair said in a written statement. “We are reviewing the letter to determine a responsive course of action.”

Regents President Rob Doughty said he believed UNM attorneys had approved the July 19 agenda as compliant with the Open Meetings Act. He did not say whether he agreed with Kreienkamp’s determination but said he respects the attorney general’s statutory authority to enforce the Open Meetings Act guidelines and intended to heed the recommendation to repeat the meeting.

“Unless counseled otherwise by UNM’s attorneys, out of an abundance of caution, I will be asking the Board of Regents to meet again,” he wrote in response to emailed Journal questions.

Some of the affected programs see a new meeting as the chance for a different outcome.

“I believe we have smart people in important positions, and I believe now they have a lot more information,” said UNM men’s soccer coach Jeremy Fishbein, whose team started practice Wednesday morning after having had two of 29 players transfer to other schools since the vote.

“They have a sense of the pulse of the community. They understand the feelings of the legislators, the gubernatorial candidates, the mayor. All the people in key positions in this state have said that eliminating sports is not the answer. … Is there going to be a collaborative effort from the Legislature? From the university? From private donors? Can we make this thing work?”

John Garcia, a former state tourism secretary and a leading advocate for the UNM ski team, expressed optimism.

“I think it’s a lack of understanding this community that led to this,” Garcia told the Journal. “And we’re not here to challenge the administration; we just know this is an opportunity to get this right.”

The threat of team cuts emerged in April, when regents first approved a long-term budget plan for athletics. The department has registered repeated budgetary shortfalls and currently owes the university’s reserves $4.7 million in accumulated debt. The plan approved in April included reducing annual expenses by $1.9 million through a “reduction in sports,” and the regents charged Athletic Director Eddie Nuñez with crafting a specific plan to achieve those savings.

Nuñez spent the next few months working on a way to reduce spending and to meet Title IX obligations. But his recommendations — which were approved by President Garnett Stokes — were not made public until after 5 p.m. July 18, the evening before the 9 a.m. meeting on July 19 to vote on the plan.

Socorro attorney David Pato filed an Open Meetings Act complaint with the attorney general hours after the meeting, citing the lack of specificity in the agenda.

Albuquerque attorney Maria “Mia” Touchet filed a similar complaint the next week. She also raised concerns that regents may have violated the law by discussing and deciding on the proposal ahead of time via a “rolling quorum” and that the vote may be invalid because the constitution requires a board member from the student body. Student regent Garrett Adcock graduated from UNM’s School of Law in May, though a UNM spokeswoman said he would be taking courses this fall.

Kreienkamp wrote that regent comments during the meeting might indicate board members “discussed public business in contravention of their OMA obligations,” but he opted not to elaborate on the rolling quorum question having already determined the board violated the law due to its nonspecific agenda.

His letter also noted it would not address the Adcock situation because the determination was limited to the OMA.

Pato cheered the determination Wednesday, adding that he hoped it might prompt UNM to reverse course.

“I would hope that the Board of Regents would afford the Legislature an opportunity to consider additional money for the program at its upcoming session, and to work with the Federal Government to explore alternate means by which it may comply with its obligations under Title IX,” he wrote in an email to the Journal.

Touchet had a similar reaction.

“I absolutely hope there is another outcome of the meeting,” Touchet said. “I hope that UNM takes this as an opportunity not only to let the public know about the matters to be discussed, but to use the public to get more input for their decision, to get legislative input and to hear from everyone.”

Garcia said UNM still hasn’t addressed the problems that led to the current challenges “and the victims here are the wonderful student athletes.”

The New Mexico Foundation for Open Government is urging regents to affirm their commitment to OMA compliance at their next meeting.

“The Open Meetings Act was enacted for the benefit of all New Mexicans to ensure that the policies, records, votes, actions and deliberations be open to the public. Any attempt to engage in a public decisionmaking process without including the public as outlined in the state’s guidelines is a violation of the law and just as important, the public’s trust,” NMFOG’s executive director, Melanie Majors, said in a written statement. She also urged the regents to draft a resolution committing to future compliance of the state’s Open Meetings Act.

This would mark UNM’s second Open Meetings Act violation on a major athletics issue this year. In February, the regents voted behind closed doors not to consider head football coach Bob Davie’s appeal of his 30-day suspension, which Doughty blamed on “inaccurate advice by a former UNM attorney.” After obtaining a second legal opinion that the vote violated the law, they repeated the meeting the following week, taking the same vote in public.