Labor information needs to stay public

Haste is often not in the best interests of governing, especially when it comes to writing easy-to-understand and enforceable legislation.

Take, for example, House Bill 364, complex legislation designed to update the state’s collective bargaining laws that made it through the House and Senate in circuitous fashion.

The legislation contains one word — just one — that could be misinterpreted in a manner to keep information from the public. That word is “notwithstanding.”

Depending on how state bureaucrats and likely the courts interpret “notwithstanding,” such information as names, salaries and hire dates of public employees could be held pack from the public. This information is public under current public record laws, but the new collective bargaining legislation — which the governor has until Wednesday to sign — adds a layer of uncertainty.

The debate concerns a portion of the legislation requiring public employers to hand over employees’ personal and employment information to labor groups that represent the workers. It goes on to state that aside from handing information over to the 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 intent, says the Governor’s Office, is to ensure that private information — phone numbers, addresses, etc. — does not become public just because it has been disclosed to a union. Salaries, hire dates and place of employment are clearly public under current state law.

To transparency experts with the Foundation for Open Government, “notwithstanding” means “in spite of ” — which could mean that salary and hire dates, for example, could not be disclosed to a third party even though the Inspection of Public Records Act allows that information to be shared.

That’s a limitation too far, say FOG officials, who wrote in a letter that the “public has a right to know who is working on their behalf, where the employee is working and their salary.”

To those who helped draft the law, “notwithstanding” has a different meaning. Shane Youtz, who represents the New Mexico Federation of Labor, says that in a legal setting, “notwithstanding” actually “creates and identifies exceptions to a rule as contained in legislation.” His interpretation would ensure that citizens could use the open-records law to obtain the information.

Evidently, no one meant the legislation to shut the public out. It could be simply a drafting error. Trouble is, language that is open to interpretation generally ends up in court. That might happen anyway, but it seems foolish to sign a bill guaranteed to keep lawyers busy.

The bill, as we mentioned earlier, had an unusual route to passage. A Senate version, introduced by Sen. Mimi Stewart of Albuquerque, did not survive. Instead, the legislation was resurrected and placed in a “dummy bill” by state Rep. Sheryl Williams Stapleton and moved along quickly in the waning days of the legislative session.

Aside from worries about the meaning of the word “notwithstanding,” Republican lawmakers and others expressed concern that the bill was not vetted adequately along the way. That’s a natural consequence of passing complex legislation too quickly.

Now, Gov. Michelle Lujan Grisham and her team must decide whether the governor should sign the 35-page legislation. Barring a crisis in collective bargaining, the governor should err on the side of caution. Revisions to New Mexico’s 2003 Public Employees Bargaining Act can wait to be completed with deliberation, with the governor making it clear that public information must stay public. No interpretations necessary.