Albuquerque Journal

Disclosure laws are bad for NM’s future

Join the 36 other states that keep applicants’ names private

- BY NICK ESTES RETIRED UNIVERSITY OF NEW MEXICO COUNSEL Nick Estes was UNM counsel from 1986 to 2005. The views expressed here are his own.

Thirty-six other states allow people to apply for public jobs without having their names disclosed at the outset of the process. Last month, the Albuquerqu­e Public School Board suggested New Mexico do the same and provide confidenti­ality to candidates unless they become finalists for an important public position. Ten of the 35 other states require disclosure of finalists like the school board proposed.

There are only six states, including New Mexico, where the law requires disclosure of the names of non-finalists. In eight states, the law isn’t clear. This puts us at an obvious disadvanta­ge in competitio­n for leadership talent, since most states allow people to apply on a confidenti­al basis unless they become finalists.

Requiring premature disclosure will prevent many of the best people from applying. When APS sought a new superinten­dent in 2015, it was shocking that not a single superinten­dent of a large or even mediumsize­d school district applied. Granted, those are not the only people who might make an outstandin­g superinten­dent. But current New Mexico law effectivel­y excludes candidates who are successful­ly doing the same job somewhere else.

In 2017, North Dakota amended its open records act to give confidenti­ality to people who don’t become finalists. The sponsor explained:

“The committee recommends this bill because under current law we are limiting the pool of applicants and placing our state in a very disadvanta­geous position. Potential applicants have withdrawn their names or not applied at all when they notice that their applicatio­n is subject to open documents law. You may think that is not the case, but here are some examples. University of Northern Iowa (where applicatio­ns are confidenti­al) had five sitting university presidents apply to be their president. University of North Dakota had none. In fact, UND has never had a sitting president apply. Northern Iowa applicants were asked why they didn’t apply to UND and they all said it was because of North Dakota’s open records law.”

This is exactly the situation in New Mexico. The best candidates, including good New Mexico candidates, will not apply for a job if they have to burn their bridges to do so. Who can blame them if they don’t even know they will become finalists?

Colorado has a law like the one the APS Board has suggested. At least three finalists must be disclosed in advance of the hire. This law was supported by the Colorado Press Associatio­n. They agreed the finalist-only rule was a good balance of the right of applicants to seek new opportunit­ies with some confidenti­ality, the interest of public entities in attracting the best candidates, and the right of the public to know about the candidates who are being seriously considered for the position.

Fear of “cronyism” in hiring is emphasized by the press, but it is a red herring. Like Colorado, we can require public entities to disclose the finalists a week or two in advance. This gives the public a chance to review résumés and find out more before the final selection. If one of the candidates is obviously not qualified for the job or is related to some powerful person, it will be apparent soon enough.

The Journal demands to know who the non-finalists are, as well. This is almost always useless informatio­n; all disclosure does is hurt the people who didn’t get to be finalists. If an individual feels unfairly rejected, he or she can come forward and say so, or even file a lawsuit. That should be a decision for the applicant, not a rigid requiremen­t of state law. Instead of displaying failure in the press, we should nurture the individual­s who weren’t selected and help them improve their chances for the future.

New Mexico cannot afford to throw away talent like this. That’s exactly what we are doing. The Legislatur­e and the new governor should join to bring New Mexico law in line with 36 other states.

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