Concerns raised over wine festival's approval method

PORTALES — A pair of Eastern New Mexico University regents fear Chancellor Jeff Elwell has uncorked a few issues in approving a weekend wine festival on campus.

The Queso Vino Festival is scheduled for this weekend at the ENMU baseball field, in opposition of current university policies on alcohol. Elwell believes he had the authority to waive policy for the festival without board approval due to exigent circumstances. Regents Joseph Gergel and Lance Pyle believe that was a decision for the board to make.

The festival wasn’t on the regents’ minds until Gergel mentioned it during the board’s Sept. 27 meeting. Regents were being updated on the college’s application for a governmental liquor license, with a public hearing set for the Nov. 5 Portales City Council meeting. Gergel asked if policy was ready to go should the liquor license receive approval, and in the interim how the wine and cheese festival could be held under current university policy — which bars alcohol anywhere on campus but the presidential residence.

To his first question, Gergel was told a policy was in draft status, and ready for the board in the event the liquor license is approved. Regarding the festival, regents were unsure but noted they could conduct a special meeting specifically to waive policy for the festival.

That meeting never took place. Instead, Elwell individually told regents he had authority as chancellor to approve the event because exigent circumstances existed. Elwell told Pyle via email that based on the advice of counsel, “we don’t have time to announce a special meeting, hold it, and then act in the way the (Board of Regents) can to amend a policy.”

Elwell, contacted Tuesday regarding the festival, believed the circumstances merited those actions.

“There’s policy that allows the chancellor, which is me, to make the one-time decision, which it is, if there are exigent circumstances,” Elwell said. “This is an event that leads to economic development for Portales. They’re expecting 1,000 people who will come for this event. It seemed that made the most sense to (not) blow this thing up. It’s something that’s allowed by our own regents policies.”

The Open Meetings Act requires that a public body acting on public business do so through open meetings announced at least 72 hours in advance. Elwell received word from counsel he could exercise chancellor authority Sept. 30, and was out of town Oct. 1-5. He didn’t believe a meeting was necessary to waive the policy, based on the one-time use of authority, and told the regents the following week.

Pyle said Elwell’s individual contact with regents felt like a rolling poll — a circumvention of the state’s Open Meetings Act via separate one-on-one conversations about public business that avoid the establishment of a quorum — and forwarded his email conversation with Elwell to The News in an effort to be transparent.

Does Pyle believe the Open Meetings Act was violated? “I have concerns on it,” he said.

Elwell said his communication was not in any way an intent to break open meetings laws.

“After hearing from legal counsel,” Elwell said, “I wrote to inform the regents, that ‘…the most prudent course of action is to grant a one-time exception to the policy due to ‘exigent circumstances.’’ Later in the email I asked them to ‘Please let me know if you have any concerns or issues with me granting this one-time exception.’ I never asked for the regents to vote on this but did inform them of my decision.”

Both Gergel and Pyle said they had no issues with the festival, and would have voted to waive policy for the event.

“I support the event; I think the event’s great,” Pyle said. “But if we have policies and procedures in place (prohibiting the event), they need to be modified or rescinded, and that takes board approval. If we’re not following the policies and procedures, what message does that send to the staff of Eastern?”

Gergel echoed those sentiments, noting, “I think it’s a great event, but we do have to adhere to our policy.”

The key element is whether exigent circumstances did exist, since the board knew about the festival three weeks before it was scheduled.

“I’m worried this situation doesn’t merit exigent circumstances,” Gergel said. “It is a broad policy, so there are different interpretations. That’s their opinion on it. I don’t know if I’d go so far as to say I don’t agree.”

Pyle also noted he thinks it’s bad practice for one person — in this case, Elwell — to both sign the contract for an event and waive policy for that event.

“When I hear exigent circumstances,” Pyle said, “I think emergency. If this is something we’ve known about, why didn’t we take proactive steps to prevent it?”

Elwell didn’t believe there was an issue with him signing the contract and waiving policy for the event because he doesn’t stand to personally or financially benefit from the festival.

For the record, Elwell noted he still hasn’t found any written university policy that allows alcohol at the presidential residence, but numerous predecessors in the president position have operated under that standard.

“I’m not sure why regents Pyle and Gergel are upset about this,” Elwell said. “If they have concerns about the chancellor having the ability to make a one-time exception for whatever, then I believe the proper venue to do that is in a public board meeting where they can decide. They’re the ultimate controllers of policy. If they want to see every rental contract, approve every rental contract, they can do that. If they feel the chancellor or whomever shouldn’t have the authority to make a one-time exception, then they should alter the policy to make it so.”