The Albuquerque City Council enacted a $1.2 Billion dollar budget for the 2019-2020 that went into effect July 1, 2019. The City of Albuquerque employs approximately 4,800 to 5,000 full time city hall employees with 26 separate departments. The approved budget represents an 11% increase in spending over last year. Under the approved budget, general fund spending, which covers most city government operations, climbed $65 million to $642 million.

Buried in approved budget is that city workers were given a meager 2% pay raises, though those represented by unions such as Police and Fire received much bigger raises based on their units’ agreements. Last year’s city budget had 10.2% increases for police and this year’s budget includes $5 million for police raises and longevity pay.

https://www.abqjournal.com/1299497/abq-budget-could-surpass-1-billion-for-the-first-time.html

UNGRADED AND GRADED CITY HALL POSITIONS

There are 223 full time “ungraded” positions at City Hall, who are in unclassified positions and “at-will” employees who can be terminated “without cause” and who work at the pleasure of the Mayor or the City Council. All City Hall Department Directors are “unclassified employees” and serve at the pleasure of the Mayor and can be terminated without cause.

The City of Albuquerque pays an average of $17.61 an hour to City Hall employees or $36,628.80 a year depending on the positions held and required education level and training levels. (40 hour work week X 52 weeks in a year = 2,080 hours worked in a year X $17.61 paid hourly = $36,628.80) Roughly 4,500 City Hall employees are considered “classified employees” who are covered by the city’s personnel rules and regulations and can only be disciplines or terminated with cause.

At the end of each calendar year, City Hall releases the top 250 wage earners at city hall. The list of 250 top city hall wages earners is what is paid for the full calendar year of January 1, to December 31 of any given year. In February, 2019, City of Albuquerque updated the list of the 250 top wage earners at City Hall. You can review the entire listing of all 25O wage earners by going going to the Albuquerque City Government web page at http://www.cabq.gov/ and search the 250 top wage earner list.

LUCRATIVE RAISES REPORTED

On May 14, 2019, KOAT TV Target 7 reported that Mayor Tim Keller had given his 5 top appointed and highest paid city hall administrators literally thousands of dollars in raises in March of between $13,500 and $20,000 year. The raises were given without informing the City Council nor the public through the media with a press release. The Keller Administration gave an after the fact justifications to the media for the raises.

The specific raises given by Mayor Tm Keller in March to his top 5 Administrators are:

Chief Administrative Officer Sarita Nair: a $20,000 pay increase resulting in a $190,000 salary.

Chief Operating Officer Lawrence Rael: a $19,000 pay raise resulting a $185,000 salary.

APD Police Chief Michael Geier: a $27,000 raise resulting in $187,000 a year salary.

Albuquerque Fire and Rescue Chief Paul Dow: an $18,000 pay raise resulting in a $150,000 yearly salary.

Chief Financial Officer Sanjay Bhakta: a $13,000 raise resulting in $131,200.01 salary

You can view the entire Target 7 report here:

https://www.koat.com/article/top-city-officials-get-big-raises/27459126

Because Keller’s top 5 administrators and Department Directors are appointed by Mayor Keller, the City Council does not have to approve any of the raises. The approval of all the raises came from Chief Administrative Officer Sarita Nair, who had to approve her own $20,000 pay raise with Mayor Keller’s approval.

Back in May when the salary spikes reported, Mayor Tim Keller issued a statement through a spokesperson indicating all the raise he gave were needed for the city to stay competitive and the statement said:

“We looked at salaries for these positions throughout our region and found that, even after these raises, our salaries are much lower than those offered in cities in the region of a similar size. We also have to compete with the new state administration which pays higher salaries, and to which we lost several key people, and a city council that has given consistent annual raises. By offering more comparable salaries, our goal is to attract and retain talented leaders to serve the city of Albuquerque.”

A RAISE ON TOP OF A RAISE GIVEN

On July 1, 2019, the effective date for the Albuquerque City Council approved 2019-2020 City Budget, all city of Albuquerque employees received the 2% raise contained in the enacted budget. It has now been reported that upwards of 50 unclassified employees who serve at the pleasure of Mayor Keller and who received pay raises in March received another 2% raise on top of the first raise. You can review the report here:

https://www.abqjournal.com/1344638/nearly-50-abq-officials-received-raises-in-march-july.html?fbclid=IwAR1PftXq86oQy1Djlgh7lmAyjiaRVKJf53cOATnotKkgHIaEr7vVuXVjjPs

High ranking Department Directors in March were given and average of a 6.2% pay increasing their average annual salaries to $118,959 a year. When it comes to percentages, the largest raises in the unclassified employee ranks of 6.2% went to Department Directors including Aviation Director Nyika Allen, Economic Development Director Synthia Jaramillo, Senior Affairs Director Anna Sanchez, and Solid Waste Director Matthew Whelan all who are now being paid $118,959 a year.

ACTUAL SPIKES IN SALARY

Chief Administrative Officer Sarita Nair was hired a year and a half ago by Mayor Keller at a negotiated starting salary of $169,556.80. She received an 11% increase in March and with the additional 2%, she is now paid $193,814 a year.

APD Chief Michael Geier was hired a year and half ago by Keller as interim chief, became permanent and his negotiated starting salary was $159,513.60. After the March pay increase and the additional 2% pay raise, APD Chief Michael Geier’s is now paid $190,736 annually.

Both Chief Operating Officer (COO) Lawrence Rael and Fire and Rescue Chief Paul Dow received 10.6% raises in March and then an additional 2% increase starting July 1, 2019.

COO Rael’s original negotiated starting salary when hired by Keller a year and 6 months ago was $165,524.80, and his salary it is now $188,718.

Fire and Rescue Chief Dow’s starting salary when hired by Keller was $132,000 and his salary is now $153,005 with the March raise and the additional 2% raise.

Chief Financial Officer Sanjay Bhakta was hired by Keller a year and 6 month ago at a starting salary of $131,200.01, he was given a 9% raise in March and with the additional 2% is now paid $147,909 a year.

COMPARING THE SALARY INCREASES TO PREVIOUS ADMINISTRATION

Following is the salaried paid all 5 that appeared in the February 2019 list of 250 top wage earners comparing their salaries to their predecessors at city hall:

Chief Administrative Office (CAO) SARITA NAIR: $169,556.80, now paid $193,814. Former Chief Administrative Officer Rob Perry was paid $189,936.

Chief Administrative Office Chief Operations Officer LAWRENCE RAEL: $165,524.80, now paid $188,718. Former Chief Administrative Officer Michael Riordan was paid $152,319.

Albuquerque Police Department Chief MICHAEL GEIER: $159,513.60, now paid $187,000 a year. Former APD Chief Gordon Eden was paid $166,699.

Albuquerque Fire and Rescue Chief PAUL DOW: $132,691.20, now paid $153,005. Former Fire Chief David W. Downey was paid $138,993.

Finance Admin Svc CFO/Director SUNALEI BHAKTA: $131,200.01. Former Director of Finance Department Lou Hoffman was paid $99,732.

The Mayor’s salary and City Council salaries are determined by the Citizens’ Independent Salary Commission. Beginning January 1, 2018, the Mayor’s salary went from $103,854 a year to $125,00 a year. Mayor Keller is provided with a car, expense account as well as an APD protection detail. Eight Albuquerque City Councilors are paid $30,000 annually and the City Council President is paid $32,000 annually. The city council also increased their constituent contact fund from $5,000 to $20,000.

https://www.cabq.gov/audit/citizens-independent-salary-commission

DEFENDING AND CONDEMNING THE RAISES

Not at all surprising, the Keller Administration is again defending the salary hikes, citing higher pay rates in state government and around the region. Keller’s Chief of Staff Santiago Chavez, said in a written statement:

“By offering more comparable salaries, our goal is to attract and retain talented leaders to serve the City of Albuquerque.”

The big difference now is that longtime Republican City Councilor Trudy Jones labeled the raises “disgraceful” and said “I believe it’s unconscionable. … We have some employees who barely get raises” and she pointed to the increasing disparity between those at the upper and lower ends of the city pay scale.”

COMMENTARY AND ANALYSIS

Republican City Councilor Trudy Jones called the Keller Administration raises “disgraceful”. What is disgraceful is that City Councilor Trudy Jones is nothing but a hypocrite. When Republican Mayor Berry did the exact same thing, especially when former CAO Rob Perry gave himself a $33,000 raise she kept her big mouth shut and raised absolutely no objection, let alone advocate more for lower paid employees.

The Albuquerque Journal also weighed in and criticized the Keller Administration raises in an editorial entitled “2-fer Raises Tone Deaf To Residents Paying $40M more in GRT”. You can read the editorial here: https://www.abqjournal.com/1347073/2fer-raises-tone-deaf-to-residents-paying-40m-more-in-grt.html

When the Albuquerque Jounral’s favorite Republican Mayor Berry did the exact same thing as the Keller Administration has done giving outrageous raises and when former CAO Rob Perry gave himself a $33,000 raise, the Journal Editor’s were noticeably silent refraining from any type of criticism, let alone advocating more pay for lower paid employees.

Former Republican Mayor Richard Berry was notorious for paying astronomical, out of line salaries to his top political operatives, especially during his second term in office. For example former Chief Administrative Officer Rob Perry was paid $189,936 (#1 highest paid employee), former APD Chief Gordon Eden was paid $166,699 (#2 highest paid employee), former Chief Administrative Officer Michael Riordan was paid $152,319 (#4 highest paid employee), former City Attorney Jessica Hernandez was paid $150,217 (#5 highest paid employee), former Fire Chief David W. Downey was $138,993 (#11 highest paid employee), former Deputy Fire Chief Eric Garcia was paid $133,872 (#13 highest paid employee) and former APD Assistant Chief Robert Huntsman was paid $132,435.

The most disgusting pay increase Berry gave was a 22%, $33,000 pay increase to Chief Administrative Officer Rob Berry who was paid $190,000 a year and became the top paid city hall employee at the time. What made Perry’s raise so disgusting is that he made sure all other city employees were given pay cuts of 2% at the time or zero or 1% or 2% pay increases and even going so far as cancelling the negotiated pay increases for police officers. Berry justified his salary increases by using similar or identical arguments Keller is now using saying that the salary increases were needed to keep people from going elsewhere and retain talented leaders to serve the city of Albuquerque. Yeah, right.

https://www.abqjournal.com/292346/ex-councilor-ken-sanche-zcalls-increase-unacceptable-administrator-perry-had-been-finalist-to-lead-nm-finance-authority.html

NORMAL WORLD VERSUS CITY HALL

In the normal world outside of city hall, even in other government agencies and in the private sector, huge salary increases are associated with promotions, additional responsibilities taken on or exceptional job performance above and beyond the call of duty. The truth is that it is difficult to identify with any clarity exactly how APD Police Chief Michael Geier, Chief Administrative Officer (CAO) Sarita Nair, Chief Operations Officer Lawrence Rael, Albuquerque Fire and Rescue Chief Paul Dow, and Chief Financial Officer Sanjay Bhakta have set themselves apart or have gone above and beyond the normal job performance required by their positions.

All those who Keller gave the raises to are essentially doing the same job they were hired for and none appear to be any real standouts. It’s likely all demanded more now that they have been on the job for 18 months. The argument the raises are justified to keep good people is as bogus as it gets seeing as they are at will employees and were not hired based on a national search and hired by Keller and they no doubt negotiated their own salaries when they started. Rael and Geier especially are long term city employees who have retired before and being paid with lucrative pensions, yet they demand more. In the meantime, an overwhelming majority of city employees get 2% raises, unless of course your police officer who gets much much higher pay increases and longevity bonus pay on top of the raises.

To be perfectly blunt, the salaries now being paid to APD Police Chief Michael Geier, Chief Administrative Officer (CAO) Sarita Nair, Chief Operations Officer Lawrence Rael, Albuquerque Fire and Rescue Chief Paul Dow, and Chief Financial Officer Sanjay Bhakta now are probably the most they have ever been paid in their careers. At least 4 appointees were hired by Keller without a real national search to fill their positions and are considered Keller’s political operatives and “inner circle” of loyalist. The “national search” for a new APD Chief was considered by many as a sham with Geier always considered the front runner. Geier also has two other retirements that are vested. There was no need to attract many with pay in that they worked for Keller when he was state auditor.

Given all the recent stories on Albuquerque’s violent crime rates and the murders, the $27,000 raise for Chief Geier is highly questionable and very difficult to justify to the public. Adding insult to injury, APD Chief Geier decided not discipline APD’s Public Information Officer Simon Drobik for claiming massive amounts of overtime and being paid $192,000 in 2018, despite recommendations by the Police Oversight Commission he be terminated. What Geier and Drobik are being paid is considered nothing but a money grab, as is all the other pay raises in the double digits.

https://www.petedinelli.com/2019/05/01/pathetic-but-not-surprising-no-discipline-for-apd-192000-spokesman

It is these types of out of line salary increases that creates a tremendous amount of animosity among the personnel of the city of Albuquerque. It is these types of raises that essentially tarnishes the reputation of elected officials by allowing their top paid administrators to engage in a money grab with the public perceiving poor performance, no results and even mediocrity.

Mayor Tim Keller prides himself in being well educated and a quick learner and said when he was running for Mayor he “had done good at all the jobs he ever held.” With only one year and six months in office, Keller has learned very quickly to make sure his political operatives are well taken care of by giving them out of line salary increases that approach what many city hall employees make in a full year.

Mayor Keller will now have to deal with the animosity among average city hall workers his pay raises will no doubt create. One thing is for sure is the 4,800 to 5,000 full time city hall employees who did not get raises do vote, as do their families, and Keller will have to decide was it worth it.

There is only one word for these raises and its GREED. An honorable thing to do at the very least would be for all the unclassified employees who were given the lucrative pay raises in March to turn down the 2% automatic pay increases and show a little respect to the average city hall employees who earn approximately $36,000 a years and who are not in Mayor Keller’s inner circle.

Working for the government in the public sector is normally public service at low wages, but with Mayor Tim Keller it’s called who wants to be a millionaire working for him at city hall as a top ranking official to cater to his every whim.

The State of New Mexico’s statutes on nondisclosure of settlements in civil lawsuits is again coming under scrutiny. The latest scrutiny is in the civil lawsuit settlement agreed to in the estate of nine-year-old Omaree Varela filed against the state Children, Youth and Families Department. The Albuquerque Police Department (APD) was not named as a defendant, but 5 police officers were disciplined with 1 termination because of their actions in the case. The settlement money will be paid to Omaree’s three siblings, one adult and two minors. The amount of the settlement being paid, despite being taxpayer money, is being kept confidential by a District Court Order.

THE MURDER OF A CHILD

On December 27, 2013, 9-year-old Omaree Varela was found beaten to death months after placing a desperate 911 call to APD. Nine-year-old Omaree Varela called 911 from his Albuquerque home 6 months before his death. In the 911 audio recording, the child’s mother and the boy’s stepfather can be heard hurling verbal abuse at the child. The parents were unaware that the 911 dispatcher was listening and recording the exchange. The verbal abuse began after the child accidentally spilled food on the ground. Two APD officers went out to the residence after the child’s 911 call and made several errors that day that may have led to the child’s eventual death. The 911 dispatcher told the APD officers that they should listen to the phone call before going to the home. APD officers never went to the child’s home.

According to police logs, the officers claimed they questioned the parents for two hours. The APD lapel camera showed that the officers were at the child’s resident’s for only 15 minutes. The APD Officers did not write a report in the case with one officer saying he would call the state’s Children Youth and Family Department. No call to CYFD was ever made by either APD Officer.

After arriving to the child’s home to investigate the 911 call, one of the officer’s belt tape has him telling the parents: “You guys seem like a good family. … A decent family. Just be careful what you guys say when you say stuff like that. I am going to overlook it right now.” Six months later, Omaree Varela was dead. 9 year old Omaree had been stomped and beaten to death by his mother. The autopsy report detailed the child’s injuries. The autopsy report said Omaree had lost about 25% of his blood volume through internal bleeding.

Omaree Varela’s mother, Synthia Varela-Casaus, was sentenced to 40 years in prison for second-degree murder after admitting to kicking her son “too hard”, literally kicking him to death. Omaree’s stepfather Stephen Casaus, was sentenced to 30 years in prison for child abuse resulting in death and other charges. The New Mexico Court of Appeals overturned his most serious conviction related to the failure to call for medical help for the dying boy. Stephen Casaus prison sentence was cut to 12 years.

https://www.koat.com/article/man-convicted-in-death-of-9-year-old-omaree-varela-could-have-prison-sentence-cut-in-half/28327667

DISTRICT COURT ORDER

In the fall of 2017 and after two full years of litigation, the New Mexico Risk Management Division agreed to settle the wrongful death case. At the time of the settlement, Omaree’s mother and biological father agreed not to seek any of the proceeds. The final order in the case filed in June 2018, states “the proceeds of the Wrongful Death estate shall be divided equally amongst the three children (of Synthia Varela-Casaus).” The beneficiaries are described in the pleading as “one adult child and two minor children…”.

A “Motion to Seal Records” was filed on October 31, 2017 and is in court public records. The motion states that there was an “interest in protecting the settlement of this minor from predation by the public [and that the] parties have agreed to confidentiality as to the amount of settlement as allowed by law.” The “Motion to Seal Records” did not specifically ask the total amount paid to all three beneficiaries be kept secret forever. However, no exact date of disclosure is identified in the court order leading to confusion.

The court order signed by District Court Judge Nancy Franchini states in part:

“[The amount of settlement] shall remain confidential for the period of time allowed by law and the amount and details of the settlement specifically related to the minor child is confidential and shall not be disclosed or made a part of a public record in any proceeding, report or pleading filed with and or by the court in this matter [because of] …a possibility of subsequent proceedings.”

Second Judicial District Court Judge Nancy Franchini also ordered the settlement details and her Court order sealed. A court order sealing a court order sealing the terms of a settlement is extremely unusual to the point of being unheard of by many. State District Judge Nancy Franchini said through a spokesman that she could not comment on the case because there was a ” possibility of subsequent proceedings.”

An attorney in the case described the orders as possibly an “error” and that the court order applies to the share amount paid to one of the siblings and not the total amount paid to all three. It is unknown why the order to seal the settlement isn’t public.

https://www.abqjournal.com/1343230/omaree-death-settlement-cloaked-in-secrecy-ex-state-officials-refuse-to-disclose-payout-in-wrongful-death-suit-cite-judges-order.html

INSPECTION OF PUBLIC RECORDS REQUEST (IPRA)

The Albuquerque Journal made an inspection of public request (IPRA) demanding the Risk Management Division (RMD) to produce the settlement documents in the case that would reveal the total mount of the settlement. RMD officials declined the request and told the Journal they could not divulge even the overall amount paid to the three siblings, including the adult child.

General Services Cabinet Secretary Ken Ortiz, who oversee the RMD had this to say:

“We spent some time reviewing [the Journal] request and basically because the judge in this case directed that all information and records pertaining to this request is under a court seal we are unable to provide any documents related to this case. … [My staff checked] with some attorneys and had a discussion with the Attorney General’s Office and everyone seems to agree based on this court ordered seal [the state cannot disclose the records.]”

FOUR DATES APPLY TO NONDISCLOSURE PROVISIONS

Secret settlements made by the state have come under scrutiny in recent months, with state Risk Management officials and some legislators advocating reform of the current law setting out when settlements become public.

When the State Risk Management Division settles a case, it denies any and all wrongdoing, and demands that the settlement makes it clear the State is agreeing to end the case as a compromise or to avoid further litigation costs. This is standard practice in most civil lawsuit settlements and common even in the private sector. The parties usually agree to avoid disparaging each other or speaking about the terms and conditions of the settlement.

The confusion with the Court Order in the Omaree Varela case is the court’s language in the order that the settlement “shall remain confidential for the period of time allowed by law.” There are at least 4 separate dates that could be applied to the case.

Under state law, state Risk Management Division (RMD) settlement terms and conditions cannot be disclosed to the public for 180 days, or a full six months. All too often, because of language and the terms in the settlements, it is unclear which claims have been settled or when they can be released to the public.

When the Order to Seal records is filed under the current law, the timeline for mandatory disclosure is not clear. Current State law provides that the confidentiality period can start on 4 dates:

1. The date the settlement is signed or
2. The date the claim is closed administratively by the state, or
3. The date all litigation is completed or even or
4. The date all statutes of limitations have run on a claim.

EFFORTS TO DISCLOSE SETTLEMENTS TO PUBLIC

During the 2019 legislative session, a bill jointly sponsored Bernalillo County Republican State Senator Sander Rue and Santa Fe Democrat State Representative Linda Trujillo calling for the state to publish settlements in discrimination claims, the agency they were lodged against and the total amount of state money paid to settle the case, including damages and attorney fees. The legislation would have required settlements paid be published on the state’s sunshine portal after a certain amount of time elapsed. General Services Department Cabinet Secretary Ken Ortiz supported the legislation. The proposal passed the New Mexico Senate, but it did not make it through the New Mexico House of Representatives.

Cabinet Secretary for the General Services Department Ken Ortiz announced he is working with staffers to start automatically publishing the state settlement agreements. The goal is to post all settlements online as soon as the legally required confidentiality period of 180 days (6 months) expires. Secretary Ortiz supports clarifying the law that sets the initial 180 days of confidentiality with the goal to precisely define when the 180-day period starts. Ortiz wants to make making it clear the 180 days starts on the day the settlement is reached.

COMMENTARY AND ANALYSIS

The killing of 9-year-old Omaree Varela was in all likely preventable but for the negligence of the State Children and Youth Department (CYFD) and the Albuquerque Police Department (APD). It is shocking the level of incompetence that was involved the Omaree Varela case by both CYFD and APD. What is as surprising is that the City of Albuquerque was not named a party defendant seeing as that one police officer was terminated and 4 police officers were disciplined for the way they handled the case.

Federal wrongful death actions against APD for excessive use and deadly force resulting in death have settled for $3 million and as much as $5 million. Each time the facts and circumstances of the cases are evaluated to determine settlement amounts. The facts that 3 of the siblings of Omaree Varela will benefit from the settlement coupled with the extent of the negligence in the case in all likely means the settlement agreed to in all likely exceeds 6 figures and would be approximately $1,500,000, or $500,000 for each sibling, if not more, perhaps even double, or $3 million total for $1 Million for each child. It is highly likely it will be years before the public finds out what was paid to settle the case. Notwithstanding, the public should not be forced to speculate on the amount of the settlement.

It is clear from not only the Omaree Varella settlement but as well as many other confidential settlements, the Legislature needs to change the law to ensure more transparency as to how public money is spent to settle lawsuits. The public has the right to know how cases are settled and the amounts of taxpayer money being paid.

Governor Michelle Lujan Grisham should issue executive orders mandating that the Department of Finance and Administration (DFA) be given far more authority over the State Risk Management Division (RMD). DFA needs to be given at a minimum some say on the final approval of all settlements negotiated by RMD as well as be allowed to give input on attorneys selected to do defense work for the state and make decisions when the settlement amounts paid can be released to the public.

It is extremely disappointing that the 2019 New Mexico legislature failed to enact the legislation requiring the state to publish the nature of discrimination claims, the agency against whom they were lodged and the total amount of state money used to settle the allegation, including damages and attorney fees. Notwithstanding, even that legislation did not go far enough. The current state law that provides 4 separate dates when the 180 day or 6-month confidentiality period starts to run should be repealed or drastically amended by the legislature and all settlements, no matter the type of case should be made public.

Six months for the public to have to wait to find out the terms and conditions of a settlement is outrageous. In the interest of full disclosure and transparency, all settlements should be posted within at least 30 days if not sooner from the date the settlement is agreed to by the parties. There should be absolutely no confidentiality clauses when it comes to the settlement. It is taxpayer money and the legislature need to act in the interest of complete transparency.

Kudos go to Governor Michelle Lujan Grisham and Cabinet Secretary Ken Ortiz working with information technology staffers to start automatically publishing the state settlement agreements with the goal to post all settlements. What should also be posted on the sunshine portal are the names of attorneys or firms awarded state contracts to defend the state, the amounts of the contracts awarded, the term of the contracts, and the hourly rate being charged.

The settlements are taxpayer money being paid as are defense fees paid to private attorneys. Simply put, taxpayers have the right to know what is paid in settlements, why and to whom, including attorney’s fees.

It appears based on the law, the District Court Judge had no choice but to seal the settlement, but the order sealing the order of settlement was probably not necessary and could be set aside. The General services Administration should file a “Motion To Modify Order To Seal” and request the court to identify the specific date the settlement amount can be made public. Another option would be to secure an agreement from the plaintiff’s to fully disclose the amount of the settlement.

This article is a deep dive review of the Albuquerque “Railyards Master Development Plan and Site Development Plan”.

In 2007, the city bought the Albuquerque Rail Yards site for $8.5 million. The historic and vacant Albuquerque Rail Yards are within one mile of the Downtown area located south of Downtown between the Barelas and South Broadway neighborhoods. The historical significance of the Rail Yards to Albuquerque in many ways is equal to that of Route 66 Central. Both reflect real milestones in the city’s history, growth, development, commerce, industry and transportation. Both need to be respected and preserved to some extent because of the historical significance to the city.

Albuquerque Rail Yards has 18 buildings still standing erected between 1915 and 1925 and include four major maintenance facilities built by the Atchison, Topeka and Santa Fe Railway. The Rail Yards have sat vacant and vandalized with broken windows and graffiti for decades. Currently, the area is the location of the seasonal Rail Yards Vegetable and Crafts Market and the Wheels Museum. The Albuquerque Rail yards has been used to film major movie productions and TV shows. Scenes for “Marvels Avengers,” the “Transformers”, “Terminator: Salvation,” Better Call Saul” and the TV hit show “Breaking Bad” have all been filmed at the abandoned and vacant facilities of the rail yards.

RAIL-YARDS MASTER DEVELOPMENT PLAN

On June 16, 2014, the Albuquerque City Council by a unanimous vote of 9 to 0 approved and adopted R-14-23 entitled “Railyards Master Development Plan and Site Development Plan For Subdivsion To Provide The Appropriate Policy Framework And Regulations To Guide The Redevelopment Of The Railyard Site”. The Master Development Plan is 73 pages long but with tables, designs and photos it is 224 pages. The Development plan was prepared by Samitaur Constructs. The “Railyards Master Development Plan and Site Development Plan” is highly detailed and takes great care to identify the historical nature of the Railyards, what affect it will have on the community and identifies what types of development should be considered. You can review the entire Railyards Master Development at this link:

https://www.cabq.gov/council/documents/rail-yard/RYMDP_Section1.pdf

The City Council adopted Rail Yards Master Plan prepared by Samitaur Constructs contains 6 guiding principles intended to serve as a framework to guide the redevelopment of the Rail Yards but over “many decades.” You can read all 6 of those principles in the postscript below to this article.

On September 16, 2018 Mayor Tim Keller during a press conference at the Rail Yards tore apart the contract between the city and Samitaur Constructs. With great bravado, Keller told reporters and a small crowd of market shoppers:

“We have decided to take back control over the Rail Yards. That’s right, the city’s taking it back. … And so it’s gonna be a long road ahead, but it’s gonna be our road. It’s gonna be a path we take together! … We’re also going to look at how it might be a workspace for the creative economy during the day and not on the weekends, and then at night and on the weekends we’ll use it for event and community space.”

The Keller Administration severing the city’s relationship with Samitaur Constructs was based on a finding by the Albuquerque Development Commission that Samitaur had not employed reasonable diligence for a second consecutive year, which meant the city could terminate its contract with the company.

ANOTHER MAYOR, ANOTHER DOWNTOWN REVITALIZATION PROJECT

Last year on September 4, 2018 Mayor Tim Keller announced his downtown revitalization plan. Keller proclaimed development of the Albuquerque Rail Yards as his top priority for downtown revitalization. Keller proclaimed it a “potential” economic development engine. Keller said he wanted to reinvent the historic Albuquerque Rail Yards by finding a development partner to transform the area into “an amenity where thousands can gather year-round”. The city has yet to find a private enterprise developer.

The city will begin remediation efforts and activate a second building at the Albuquerque Rail Yards after the city severed the master development contract with California-based Samitaur Constructs. The city has upgraded one building, the blacksmith shop, where the Rail Yards Market Place takes place on weekends. Activating a second building will accommodate additional vendors and potentially be a big tourist draw.

Further remediation will take time and money. Over $53 million in bonds will be on the November, 2019 ballot for spending on city facilities and it includes $13 million toward the historic Rail Yards property through 2029. The 2019 New Mexico Legislature also appropriated $7.5 million for development of the rail yards.

LELAND CONSULTING GROUP REPORT

Leland Consulting Group is a Portland-based development consulting firm that was contracted to study the financial feasibility of redeveloping the Albuquerque Rail Yards. On July 9, 2019, it was reported that the Leland Consulting Group’s draft report to the city of Albuquerque said the ideal Rail Yards redevelopment strategy should include a mix of uses.

The Leland report suggests 3 different levels of development of varying levels of density. The report notes redevelopment will occur over many years, making it impossible to predict the exact mix that would work. All the levels of redevelopment call for “adaptive reuse” of buildings on the property’s north side, which the report calls the Rail Yards’ “front door.” Proposed uses include Central New Mexico Community College’s film center, the existing Rail Yards Market, and new retail, restaurants and commercial tenants.

The Leland draft report recommended 10,000 to 20,000 square feet of retail space in the Rail Yards over the next decade. According to the report, the focus should be on food and beverage tenants, vendors related to film or rail travel, existing area businesses looking to expand or “small, local vendors that build on the Rail Yards’ unique, historic and gritty character.”

The Leland development report suggests using large existing buildings near the Rail Yards’ center. The Boiler Shop and the Machine Shop alone has nearly 4 acres of enclosed floor space. There are facilities that would require renovation for concerts, festivals, special events, film productions and even team sporting events. Two scenarios suggest renovating and remodeling existing buildings to create110,000 to 200,000 square feet of employment space. The Leland report suggests that is more space than likely needed over the next decade.

Housing is also recommended in the report. The report’s various scenarios include 65 to 160 mixed-income housing units near the Rail Yards’ southern end.

https://www.abqjournal.com/1337858/consultant-offers-3-rail-yards-redevelopment-scenarios-ex-abq-officials-note-that-the-report-is-preliminary-and-that-the-public-will-have-input.html

PROPOSED COMMUNITY COLLEGE FILM CENTER

On January 11, 2019, the City of Albuquerque and Central New Mexico Community College (CNM) signed a one-year Memorandum of Understanding (MOU) to locate in the Rail Yards CNM’s new facility for its “Film Production Center of Excellence.” Over 15 years ago, CNM began a film production program and it has grown each year and now requires a separate facility of its own.

CNM President Kathie Winograd wants to help train a sufficient workforce for the city’s emerging film production industry and said:

“CNM is committed to building a new CNM Film Production Center of Excellence to support the workforce needs of the fast-growing film industry in Albuquerque and New Mexico. … The excitement of having Netflix here has made us dream even bigger and think about all the things we can do not only in the programs we have now [but others]. … We see this as an opportunity to be nationally recognized and be the place not only for films … but we see this as the place to come for education. CNM is committed to building a new CNM Film Production Center of Excellence to support the workforce needs of the fast-growing film industry in Albuquerque and New Mexico.”

After over 6 months since signing the MOU, no lease has been signed by CNM with the City. CNM is saying it is still examining the potential project. CNM has been given $300,000 in state funds by the legislature and has another a $300,000 grant from the U.S. Conference of Mayors and Wells Fargo to plan the project. CNM is also seeking $3.5 million for the project’s first phase as part of an $84 million bond issue going to voters for approval on the November, 2019.

MARKET ANALYSIS LACKING

Leland Consulting Group was contracted to study the financial feasibility of redeveloping the proposed CNM Community College Film Center on the Railroad Yard site. Dated May 7, 2019, Leland Consulting Group released a draft “Summary of Market Analysis and Development Scenarios”. The report was late and was promised to the city by the end of May. It should have included action plans for up to three proposed development proposals. The report is a mere 28-pages and was paid for under a $54,944 contract with the city.

Not only just being a late draft report, it is also severely lacking in a number of critical areas. Leland Consulting has yet to provide a financial analysis for renovating existing buildings and erecting new ones on vacant parts of the site. It has not produced an estimated cost for remediation of the site which could be very prohibited given the decades of train engine repair work and toxic oil and chemical discharge and disposal. Leland was also supposed to have analyzed options for Rail Yards governance and evaluated infrastructure upgrades needed to ready the site for construction. The final report is expected by the end of July.

Notwithstanding Leland’s failure to provide a remediation cost estimate, the city has completed an environmental study of the site and has submitted a voluntary remediation plan to the state. The city is moving forward with demolition of small non-historic structures for site improvements. The city has also submitted a state capital request for $15 million to support rail yard environmental remediation and site improvements.

The Leland report labeled the proposed CNM Film Center for Excellence at the railyards as a “game changer” and “an exciting and potentially transformative use” of the property. The report added the project would “define the economic purpose of the site” as opposed to waiting years to find another investor or another anchor enterprise for the site. The Leland analysis report said the city should “do everything in their power” to make sure the CNM project happens.

According to the market analysis, the film center would be “a game changer” for the following reasons:

1. CNM can be the one catalyst that pulls other innovative tenants and employers with it and demonstrate redevelopment momentum.
2. It would bring hundreds of students and educator or teachers to the area site who in turn would spend discretionary money in the area.
3. It would potentially spread the Rail Yards’ capital and operating costs among various partners, and
4. CNM’s existing connections within the film industry could serve to attract other film industry users such as NETFLEX and Albuquerque Studios.

https://www.abqjournal.com/1267274/city-cnm-partner-for-film-production-center-in-rail-yards.html

NO “SILVER BULLET” TO DOWNTOWN REVITALIZATION

The Leland’s report identified what it referred to as “economic warning signs” making the proposed CNM film center especially valuable for development of the rail yards. The report noted that the City is recovering from the great recession. The city is now seeing measurable population and economic growth when before there was none and even a decline.

The Leland report questioned the viability of adding much mixed employment space at the Rail Yards citing the cities stagnant commercial property lease rates existing in the Downtown area office and industrial properties. Albuquerque has had a chronic commercial vacancy rate city wide of upwards of 23% based on information from CBRE, the largest real estate investment manager in the United States. The downtown commercial office space vacancy rate hovers around 35% according to local commercial real estate experts. A real estate analysis found Downtown locations are not commanding high enough rents to justify new construction of any kind.

The Leland report warned against the “silver bullet strategy” of seeking “one big tenant” or development at the expense of incremental momentum. The Leland report stated that emphasis should be placed on achieving incremental successes and leveraging key anchor institutions such as the CNM film center and the Rail Yards market.

https://www.cabq.gov/council/projects/completed-projects/2014/albuquerque-rail-yards-redevelopment

COMMENTARY AND ANALYSIS

For the last 50 years, City Hall and virtually all Albuquerque Mayors have been fascinated and enamored with trying to revitalize the Downtown Central area. All the Mayors wanted to bring back Downtown Central of its heyday of the 1950’s and 1960’s where it was the center of commercial, business and retail and entertainment activity.
First there was “urban renewal” of the 1970’s with the new convention center built, followed by the Festival Market Place, followed by the Convention Center expansion with building the Hyatte Regency and the adjoining office building, then the rejected “Performing Arts Center”, then the 4th Street Mall concept, then the attempt to build the new Isotopes’ Baseball stadium downtown, then the convention center and civic plaza remodeling, then the ART Bus project. Each time it was a Mayor involved trying to leave his lasting mark on the city with his own legacy project. You can review Central Downtown revitalization over the years at this link”

https://www.petedinelli.com/2018/09/04/downtown-revitalization-deja-vu-all-over-again/

It was downright cringe worthy when former Albuquerque Mayor Richard Berry called the ART Bus project “a world class project” and a “game changer” and crammed it down the throats of citizens without a public vote. The ART bus project was nothing more than a $130 million-dollar construction project to build a cheesy 9 miles of bus service that has resulted in the destruction and character of historic Rout 66. A truly “world class project” and game changer is the construction and development of facilities or infrastructure that costs billions of dollars of investment in a community.

“Downtown Albuquerque” has become the government and financial district for the city with the location of city hall, the City/County Government Center, the Metro Court, State District Court, the Federal Courts, the Social Security Administration, the main bank branches of Wells Fargo, Bank of America, Bank of the West Compass Bank and other banks and government agencies. The fact that “Downtown Albuquerque” has become the government and financial district for the city where no one wants to go after 5:00 because there is nothing to do there makes it hard to redevelop the area for tourism, entertainment and night life activities other than going to the bars.

The center of Albuquerque and the new “downtown” is the uptown area of the city consisting of Coronado Shopping Center, the many shops at the Commons at Uptown, the Winrock development. The WINROCK development is now local and will include even more retail shops and even luxury housing when it’s done. Numerous restaurants have also popped up in the area with even more planned not to mention the commercial office space in the area.

SUCCESSFUL CITIES AT REVITALIZATION

Successful cities that have transformed blighted and struggling older areas of their cities have been Tulsa, Oklahoma, Oklahoma City, Oklahoma, Denver, Colorado, Phoenix and Scottsdale, Arizona. El Paso, Texas has dramatically transformed its downtown area. The way each one of these cities did it was with a massive infusion of capital and building large capital projects costing billions of dollars.

Some of the best examples of billion-dollar investments are the building of the BOK Center in downtown Tulsa, the Chesapeake Arena in Oklahoma City, the municipal railway running from the outskirts of Denver and through downtown Denver, Colorado or the River Area in downtown Scottsdale, Arizona. In Tulsa the BOK Center sparked hundreds of millions of dollars of redevelopment in adjoining neighborhoods.

In Oklahoma City, the Chesapeake Arena and adjoining Bricktown continue to expand. Previously blighted areas are being filled in with business developments, new housing, recreational facilities, and even cultural amenities. A key component has also been law enforcement to make people feel safe enough to move into those areas as they were being redeveloped. A key involvement to most if not all was seeking voter approval of the projects. Tulsa and Oklahoma City have been so successful that voters continue to approve new ones.

KELLER PROPOSAL NOTHING NEW

Mayor Keller’s emphasis on Downtown revitalization and tourism should come as absolutely no surprise to anyone. The problem is Mayor Tim Keller is not proposing anything dramatic and nothing visionary to revitalize Downtown Albuquerque. Keller is pinning his hopes on getting Downtown revitalization by relying on higher education institutions such as CNM and UNM and the emerging film industry.

If this sounds very familiar, it is. Former Mayor Richard Berry relied on UNM funding to build the 6 story Innovate Albuquerque Complex of which 5 stories is a UNM Dormitory. The complex is across the street from luxury condos of the old Albuquerque High School. Building of a dormitory on valuable commercial property is not the highest and best use of property. The biggest problem with relying on state funded institutions of higher education is that they tend to change their mission statement to conform with changing times and education fields. State funded institutions of higher learning also have a way of absorbing and taking over areas to expand.

The emerging film industry is developing facilities they will own and operate. Waiting for the Railyard Development is not in the cards. NBC Universal plans are to redevelop a warehouse into a state-of-the-art television and film studio with two sound stages, offices and a film production mill. The turnaround time for the renovations is very short and it’s expected to be complete in the fall of 2019.

The Netflex purchase of Albuquerque Studios is complete. Albuquerque Studios is an enormous complex that includes 9 sound stages, a backlot and management offices and the rail yards are small in comparison. In 2006, Albuquerque studios was a $74 million, 50-acre project featuring eight sound stages, production officers and support space.

The Leland market analysis report noted a recent report by the Urban Land Institute “that indicates other western metro areas are more likely to attract outside development and investment dollars than Albuquerque.” The big problem is the report failed to even note that the City and the State are sorely lacking in local major investors, wealthy entrepreneurs and wealthy individuals and corporations having the financial ability and commitment to make major capital investments.

It is very disappointing that Mayor Tim Keller is not proposing anything dramatic nor visionary to revitalize Downtown Albuquerque given the platform of change and economic development he ran on. In fact, Keller’s Downtown revitalization plan is akin to “political plagiarism” of his predecessor.

It is apparent that the Railroad Yard Development is Mayor Tim Keller’s own “legacy project” as was the ART Bus project for his predecessor. It should not be given the adoption of the 2014 “Railyards Master Development Plan and Site Development Plan”. No one knows for certain how the enactment of the new City Planning Comprehensive plan will have on the Railyard Development and it may just be another “gentrification” project that ultimately has a dramatic and negative affect on historical Barelas Neighborhood, the way the ART Project had on historical Central and Route 66.

What is ill advised is Mayor Tim Keller apparently thinks the Rail Yard redevelopment can all be done with local talent and local and state investment tax dollars. Such massive amounts of capital, usually in the billions of dollars, is needed to build large capital projects. The city also faces the prospect that voters in November will say NO to the $13 million in capital improvements bonds for the Rail Yards development. Given the voters mistrust of elected officials because of the ART Bus project, the defeat of the APS tax levy in February and Mayor Tim Keller last year signing a tax increase breaking a campaign promise to put tax increases on the ballot, no one will be surprised if the City capital improvement bonds are rejected by the voters.

To be blunt, the truth is that the City Hall and the State do not have the financial ability to undertake a cleanup and a massive investment and make capital improvements in the billions of dollars to revitalize Downtown Albuquerque. Keller for that matter, like all other Mayor’s the city has had, is enamored with Downtown revitalization and the Railyards is in the Barelas neighborhood area. The problem is Mayor Keller does not have an understanding nor the business and investment experience background and savvy in the private sector of what it’s going take to get it done.

CONCLUSION

When Mayor Keller dramatically tore up the contract with California-based developers Samitaur Constructs he said:

“We have decided to take back control over the Rail Yards. That’s right, the city’s taking it back. … And so it’s gonna be a long road ahead, but it’s gonna be our road. It’s gonna be a path we take together.”

The problem appears to be that Keller really has no idea where the road and path leads us nor what is at the end of the journey. Mayor Keller needs to set aside his ego and apparent desire for a “legacy project” and secure a major out of state investor that knows what they are doing and who are willing to make the investment and partner with the city to get the job done. Such an approach has happened before in Albuquerque when Winthrop Rockefeller developed Winrock Shopping Center in the 1960s, and it can and should be done again.

Mayor Keller and the city need to seek out experience in the private sector who have done such projects like those in El Paso, Denver, Phoenix and Oklahoma and even Dallas, Texas and who have a proven record of success. Otherwise the Rail Yard Development will wind up being just another failed legacy project to feed the ego of a Mayor very much like the ART Bus project that destroyed the character of Route 66.
_______________________________

POSTSCRIPT

The 2014 adopted “City Council Rail Yards Master Plan” contains 6 guiding principles intended to serve as a framework to guide the redevelopment of the Rail Yards over many decades. Following are the 6 guiding principles quoted verbatim without editing:

GUIDING PRINCIPLE #1: JOB GENERATION, ECONOMIC DEVELOPMENT & ECONOMIC VIABILITY

The Master Plan encourages opportunities for promoting the art, history and culture of the site, the community and the region. The Plan sets aside space for a museum that celebrates the history of transportation, particularly rail transportation. Commercial and residential tenants, local community members, and visitors from near and far will be attracted by heightened aesthetics, comfortable, quality amenities, and a unique cultural vibrancy.

John B. Strong has been in New Mexico since 1997. He is an art gallery owner in Santa Fe since 2000. Mr. Strong is a co-founder or board member at several different companies, mostly in technology, healthcare, and financial services. Mr. Strong describes himself as being “obsessed with entrepreneurship and small businesses.”

Walt Rubel is the Editorial Page editor of the Las Cruces Sun-News in Las Cruces, New Mexico. He has been with the Las Cruces Sun News since 2002 after having worked for eight newspapers in the states of Colorado, Wyoming, California and Kansas. During his many years with the Las Cruces Sun-News, his primary duties have been editing the opinion page and writing editorial opinions.

Following is a guest column by John B. Strong, an editorial by Walt Rebel published in the Las Cruces Sun News and further Commentary and Analysis. All 3 commentaries read together present a serious conversation about liquor license reform in New Mexico.

JOHN B. STRONG COMMENTARY

Many people don’t quite understand how outdated and unfair our liquor licensing laws are here in New Mexico. Decades ago the legislature created a system of a set and limited number of licenses to be able to serve or sell liquor by the drink. This is not the same as wine and beer licenses. There are currently 1,411 licenses in the state for this purpose, and they trade as a commodity and can be bought and sold to the highest bidder.

The state derives no economic benefit from the purchase, sale , or leasing of these licenses at all. They simply allow the owner to then go to the State Alcohol and Gaming Commission and apply for a license that allows them to sell alcohol.

Since there are a limited quantity of these licenses there has been a constant upward push in the price to acquire them. About 10 years ago these licenses cracked the $200,000 mark. Recently the last two licenses sold were reported by the state to be $500,000 and $590,000. Originally most if not all of these licenses were owned by local small businesses scattered across the state, but over the years the increased prices began to tempt small family owned businesses to simply sell them as they became worth much more than the actual business they were attached to.

Therein begins the problem. Many of these licenses began to migrate away from small locally owned businesses to large out of state corporations. Companies like Marriott and Hilton Hotels, Cheesecake Factory, Applebee’s, and other large chains. Then groups formed here to acquire licenses and lease them out rather sell them, both in anticipation of ever-increasing values for them as well as increasing lease payments.

If you are unsure of what effect this might have consider this, in a couple of years these licenses will likely crack $1 Million dollars! At that point (if we aren’t there already) you will never again see a small family owned Mexican restaurant that can sell a Margarita, or a local Steakhouse that can sell a martini, or an ethnic restaurant that can sell beverages native to the food they prepare. Consider the International District, which is home to many great ethnic food establishments, and they are under constant pressure to compete with large chains that have this unfair advantage over them.

Replicate that scenario across the city as well as the state and you start to see the problem. Keep in mind as well that we have an interest in our small businesses, because when the large chains sell that $10 Martini, their profits go straight to a corporate bank account in New York, Chicago, or LA. When our small businesses are able to make that sale, those profits percolate through the community many times over, and that is a BIG deal.

I don’t think anyone believes that when this system was set up that it would get to this point, and periodically over the years there have been conversations about reform, but nothing ever happens. Partly because there is a lot of money at stake for the folks who own these licenses (we think about half of them are owned by out of state corporations that probably pay little attention to their value) and it’s complicated to try and change it. I am told that we have around 34 different licenses for beer, wine, and alcohol, and that is far too many.

So now that we are in this mess, what do we do about it? I have a couple of suggestions:

The legislature could simply create a class of liquor license combined with wine and beer specifically for venues of less than 75 seats that would be affordable, say $500 per year.

This would take some of the pressure off the upward increase in the large venue licenses but they would still maintain a high value, while giving small venues a chance to compete.

We could levy a tax on liquor beer and wine, and bond against that revenue stream to begin buying in and cancelling the licenses. It’s doable.

The bottom line here is that this issue has a very outsized economic impact on both our cities, particularly Albuquerque, and our state. I tell anyone who will listen that this is not a liquor issue, it is an economic development issue.

Keep in mind as well, that now that we are enjoying some real success in attracting large investments from companies like Netflix, and NBC Universal, the employees they bring here will begin to demand the neighborhoods, music venues, and social spaces that they are used to in cities like San Francisco, Los Angeles, Seattle and Austin. They contain neighborhoods filled with small music venues, speakeasies, coffee shops, and bistros. We won’t have any real hope of creating these neighborhoods without reforming this issue.

And if we want to keep attracting more of these companies to invest and bring their employees here, we will need to give them reasons to say YES to living here. So let’s once again start that conversation about reform, but this time lets actually do something about it.

Respectfully,

JOHN B. STRONG

WALT RUBEL, LAS CRUCES SUN NEWS , NOVEMBER 28, 2018

“When I moved to New Mexico in 2002, I was told the reason there was a set number of liquor licenses in the state was to control drunken driving and the other problems associated with alcohol abuse.

Which seemed like a strange way to approach what was a real problem, given New Mexico’s lax DUI laws at the time. Penalties topped out at the fourth conviction, meaning there was no difference between the fourth and the 40th. Unless somebody was hurt or killed in a crash, drunken drivers could expect a wrist slap.

The conventional thinking at that time was if we punished them, even by just taking away their driver’s license, it would only end up hurting their families.

Former Gov. Bill Richardson, working with Republicans like former Sen. Kent Cravens, ended that old way of thinking and dramatically reduced drunken-driving deaths in the state through a combination of tougher laws and more aggressive enforcement.

And yet the limit on liquor licenses remains.

It is now clear that the issue is not DUI or alcohol abuse, but rather protecting the investments of a small number of powerful business owners.

Last week the City Council voted 4-3 to support legislation that would crack the door open ever so slightly by allowing more restaurants to sell alcohol. But only alcohol produced by New Mexico distilleries. And, only for restaurants located within economic development districts.

While there were some public safety arguments raised during the City Council debate on the issue, the primary argument against the proposal came from those who own one or more of the prized liquor licenses, and who believe the government has an obligation to safeguard their business investments.

One business owner said he was counting on the fortunes to be made selling his licenses to finance his retirement. Another conceded that we have a broken system, but then argued that nothing could be done to fix it because it would hurt existing licenses holders.

Because of the artificial scarcity of liquor licenses created by the state government, those selling existing licenses can get up to $1 million for them. The average price is $300,000, according to the city, more than 10 times as much as in neighboring states. Obviously, that serves as an enormous detriment to new restaurants moving into New Mexico. Not to mention reducing the options for diners in the state.

Current license holders may be right when they say ending the restriction would mean more competition for their businesses and would lower the value of their licenses. But, when did it become government’s job to protect businesses from competition?

The government’s job is to promote the common good and work toward increasing the number of businesses that operate in the state. Maintaining a set number of liquor licenses to discourage out-of-state investment in order to protect a small number of current business owners does the exact opposite.

There are many valid reasons for a state to set laws regulating the sale and consumption of alcohol, most involving public safety. Protecting the business interests of those who have invested in licenses at artificially inflated prices is not among them.”

Respectfully,

WALT RUBEL

https://www.krwg.org/post/rubel-thoughts-new-mexico-liquor-laws-and-who-laws-really-serve

DINELLI COMMENTARY AND ANALYSIS

New Mexico has an extensive history of attempting to restrict liquor licenses and at the same time dealing with some of the highest rates of drunken driving (DWI) in the country. The state’s liquor licensing laws impairs economic development with no real evidence that fewer licenses reduce DWI rates and increase public safety in any meaningful way.

Out of state “chain stores and restaurants”, which are now proliferating Albuquerque and squeezing out locally owned businesses, can afford whatever it takes to buy a liquor license. Smaller, locally owned restaurants cannot compete nor afford to pay hundreds of thousands for a liquor license. Any average New Mexican who wants to open a new bar or restaurant with a full liquor license cannot do so because the cost of a liquor license is so prohibitive as a result of the cap placed on the number of licenses that can be issued based on population numbers.

Albuquerque has repeatedly tried for the last 50 years to revitalize the Downtown area. Revitalization of any downtown area always includes entertainment venues, new restaurants and bars. However locally own businesses simply cannot afford the investment in a liquor license. Laws preventing alcohol sales within 300 feet of a church or school, and preventing sales before noon on Sundays make any city in the state less attractive to businesses, while serving no real public safety function. Sunday liquor sales at one time were prohibited all day with one argument made because it is considered a day of worship for attending church and not for drinking. The 300-foot restriction is somewhat of a farce and should be eliminated.

If New Mexico Governor Michelle Lujan Grisham and the New Mexico Legislature truly want to encourage economic development and help locally owned businesses, liquor license reform must be included in equation.

The term “poaching” is somewhat insulting as an illegal hunting term when referring to law enforcement recruitment from other law enforcement departments and communities. On July 22, 2019, speaking before the real estate development organization the National Association of Industrial Parks (NAIOP), Mayor Tim Keller acknowledge that “poaching” is what APD has done for the last year to recruit 100 sworn police and said:

“We are done trying to poach folks. … It was something we needed to do – and I will say I did work with all the other mayors on that and, I think actually, net-net, it worked out OK and we got our additional 100 – but we’re going to have to go to other cities now.”

https://www.abqjournal.com/1343616/keller-apd-done-trying-to-poach-officers.html

GROWING THE DEPARTMENT

In the last year, APD has added 116 sworn police to the force because of “poaching”. APD’s goal is to spend $88 million dollars starting last year in the 2018-2019 fiscal year, over a four-year period, with 32 million dollars of recurring expenditures, to hire 322 sworn officers and expand APD from 878 sworn police officers to 1,200 officers. The massive investment is being done in order to full fill Mayor Tim Keller’s 2017 campaign promise to increase the size of APD and return to community-based policing as a means to reduce the city’s high crime rates. Last year’s 2018-2019 fiscal year budget provided for increasing APD funding from 1,000 sworn police to 1,040. This year’s 2019-2020 fiscal year budget has funding for 1,040 sworn police.

The APD recruiting plan to grow the size of the department included the city increasing police officer hourly pay and increasing longevity incentive pay. In 2018, the Keller Administration and the APD Union negotiated and agreed to a 2-year contract. The approved contract provides that the pay rate for officers with zero to 4 years of experience went from $28 to $29 an hour. Starting pay for an APD officer right out of the APD academy is $29 an hour. Under the two-year contract, officers with 4 to 14 years of experience are paid $30 an hour. The new contract pays senior officers between $30 to $31.50 an hour. Officers with 15 years or more experience are paid $31.50 an hour. The rate for sergeants went from $32 to $35 an hour, and lieutenants pay went from $36.70 to $40.00 an hour.

The approved longevity pay scale effective the first full pay period following July 1, 2019 is as follows:

For 5 years of experience: $100 will be paid bi-weekly, or $2,600 yearly
For 6 years of experience: $125 will be paid bi-weekly, or $3,250 yearly
For 7 to 9 years of experience: $225 will be paid bi-weekly, or $5,800 yearly
For 10 to 12 years of experience: $300 will be paid bi-weekly, or $7,800 yearly
For 13 to 15 years of experience: $350 will be paid bi-weekly, or $9,100 yearly
For 16 to 17 years or more: $450 will be paid bi-weekly, or $11,700 yearly
For 18 or more years of experience: $600 will be paid bi-weekly, 15,600 yearly.

Time employed by a lateral from other law enforcement agencies qualify for the APD longevity bonuses. APD announced that officers from other departments can get credit for up to 10 years of experience they have had with other law enforcement agencies which means $3,900 longevity pay after working for APD for only 1 year. In the past, lateral hires were given credit for only half of their previous work experience. That work experience directly increases an officer’s pay in the form of yearly incentive retention bonuses.

APD’s new pay structure and increased longevity pay incentive bonuses allowed APD to recruit experienced police officers from other New Mexico law enforcement agencies. The law enforcement agencies APD recruited from did raise serious concerns about losing their officers to Albuquerque to the point many had to raise their pay structure to retain their officers. Police officers who left other agencies to join APD are some of the more experienced and highly trained officers at the agencies they left.

APD’s hourly pay is significantly higher than what officers and deputies make in other law enforcement agencies in the New Mexico. Notwithstanding, Bernalillo County Sheriff Officers (BCSO) are paid about the same as APD and the Santa Fe Police Department (SFPD) has raised their pay scale to match APD.

COMMENTARY AND ANALYSIS

NO, poaching was not something that needed to be done given the significant increase in APD budget, increases in hourly pay and the very lucrative longevity pay raises negotiated. APD’s ability to attract officers from other New Mexico Law enforcement agencies probably has peaked with the other agencies also increasing their pay to compete with APD.

The poaching was done soley as a “rush to hire” sworn police as quickly as possible. The poaching seriously impacted other communities and law enforcement agencies contrary to Mayor Keller’s claim of working with other Mayors. The problem with “poaching” is that it increases the risk of hiring problem officers from other agencies as lateral transfers, which is what caused in part APDs problems in the first place with the Department of Justice and the finding of a “culture of aggression”.

Lateral transfers are given abbreviated training and they may not be committed to fully constitutional policing practices. The city’s so called “rush to hire” cops from 2005 to 2009 is what resulted in a major lawsuit and a large payout when the plaintiff’s attorney established that an inordinate number of police shootings came from a single APD class.

Now that the “poaching” is over, Keller has said he still wants to recruit another 300 cops to reach his goal of 1,200 and to keep up with retirements. Recruiting a younger, new generation of sworn police officers and growing the size of the police department at this point will be difficult for any number of reasons including:

1. APD’s poor and negative national reputation.

2. Albuquerque’s high violent crime rates are not conducive to attracting people who want to begin a long-term career in law enforcement in Albuquerque.

3. The increased dangers of being a police officer in a violent city such as Albuquerque.

4. The DOJ oversight requirements.

5. Many recruited lateral hires may also be looking to retire sooner rather than later, coming to the City to increase their high three salary to retire with a more lucrative pension and collect the longevity pay bonuses, and

6. From a personnel management standpoint, it is highly likely that many APD police officers who are eligible for retirement now have decided to stay on and continue for a few more years with APD because of the significant increases in hourly pay and longevity pay and increasing their retirement benefits but still plan on retiring in three years once they get their high 3 years of pay.

APD consistently has thousands of applicants that apply to the police academy every year. The overwhelming number of police academy applicants fail to get into the academy for any number of reasons including failing to meet minimum education and entry qualifications, unable to pass criminal background checks, unable to make it through psychological background analysis, failing the polygraph tests, lying on the on the applications or failing a credit check. Once in the police academy, many cadets are unable to meet minimum physical requirements or unable to handle the training and academic requirements to graduate from the academy and drop out.

CONCLUSION

Keller and Geier and the APD command staff need to realize that APD must recruit a new generation of young, committed police officers to start their law enforcement careers with the city who are fully trained in constitutional policing practices. Otherwise all that has been accomplished with the DOJ consent decree may have been for nothing and APD will revert back to old habits and destructive practices. APD needs to curb its efforts of hiring even more lateral hires from other agencies in the country and concentrate on hiring a younger new generation of police officer to begin their law enforcement career and to continue rebuilding APD from the ground up.

For a related blog article see:

APD Adds 116 Officers To Force; Recruiting And Training A New Generation Of Police Officer Will Be Harder And Take Longer

In mid May of this year, Bernalillo County District Attorney Raúl Torrez proposed a new constitutional amendment that would require defendants accused of certain crimes to show and convince a judge that they should be released pending their trial on the charges. There are 29 states that have rebuttable presumptions of detention for defendants charged with specific violent crimes.

According to Torrez, cases where a defendant would be required to show they do not pose a threat to be released pending trial would include “the most violent and serious cases” such as murder, first-degree sexual assault, human trafficking, first-degree robbery, crimes involving a firearm and defendants who are on supervision or parole for another felony. The Constitutional amendment would allow detainment of a person for dangerousness, flight risk or obstruction of the criminal justice process.

A presumption of dangerousness would be applied to specific charges, including violent felonies, firearm possession, intimidation of witnesses and felonies committed while on probation or parole. With the presumption of dangerousness, the legal burden of proof will be on the defense to prove the person is not dangerous and would be required to collect and present compelling evidence to a judge that the accused should be released pending a trial, if a trial ever in fact occurs and the charges are not dismissed.

Under such presumption, a person who is merely charged with a violent crime is presumed violent and an immediate danger to the public and must be held in jail until trial. Such a shift of burden of proof could conceivably require a defendant to take the stand during a detention hearing before their trial and a waiver of their 5th Amendment Constitutional Right against self-incrimination.

Torrez argues the changes will simplify and strengthen the detention process, restore it to its original public safety purpose and rebuild confidence in the criminal justice system.

https://www.abqjournal.com/1318399/da-to-unveil-new-pretrial-detention-proposal-ex-some-defendants-would-have-to-prove-they-should-be-released-pending-trial.html

UNM STUDY OF “PRESUMPTION OF NO BAIL” CONSTITUTIONAL AMENDMENT

The University of New Mexico Institute for Social Research studied and reviewed the proposal by DA Torrez to change by constitutional amendment the way pretrial detention is handled in New Mexico. The study was done at the request of former New Mexico Supreme Court Justice Charles Daniels who pushed for the current pretrial detention system which voters approved overwhelmingly in 2016. The final report was prepared by Paul Guerin the director of UNM’s Center for Applied Research and Analysis. The study called into serious question the effectiveness and outcomes to change the way pretrial detention is handled in New Mexico thereby discrediting the arguments made by District Attorney Raul Torrez.

The UNM study found no evidence that Torrez’s proposal would improve public safety. Based on a review of cases in which a defendant was released despite the DA’s requesting detention, Guerin found that preventive detention motions filed by the District Attorney’s office did not have “substantively” improved public safety as opposed to those cases in which no detention motions were filed.

Guerin’s study report recommends that the rebuttable presumption proposal be scaled way back by saying:

“If rebuttable presumption use is limited to cases in which defendants are charged with offenses punishable by life imprisonment, and other pretrial detention decisions are left to judges’ discretion and informed by risk assessment tools like the PSA, they can ensure reputation protection [for the criminal justice system] and align with national standards without undermining public safety. ”

Guerin cites research showing that a defendant’s current charge alone does not predict involvement in future dangerous crimes. He reported that some of the offenses or statutes the DA lists in his pretrial detention proposal “are arguably questionable indicators of dangerousness.” It was noted that many of the factors are already taken into consideration by the Arnold Venture’s Public Safety Assessment, a tool judges use when deciding to detain someone.

SURPRISING FINDINGS

The UNM study looked at more than 7,000 cases filed from July 2017 to August 2018 as part of the review. There were 1,500 cases that had preventive detention motions filed by the District Attorney’s Office. Of those preventive detention motions, 46% were granted and 54% were denied.

The review found no substantial differences in failure to appear and in new criminal activity rates between defendants for whom the DA did not request detention and those who were released despite the DA’s requesting detention. In all, the study found that 17% of those denied cases picked up a new charge. Only 2.9% more of those defendants in denied motions failed to appear in court, and only 2% more picked up new charges.

The UNM Institute for Social Research Study reported that the rebuttable presumptions of detention being proposed could actually jeopardize public safety in two ways:

First, limited detention resources are used on those who could be released or supervised while more dangerous defendants are released.

Second, the report found that studies show unnecessary detention can lead to higher recidivism rates if defendants lose their jobs or their homes, or suffer other disruptions because of their detentions.

DEFENSE BAR REACTION TO REPORT

Richard Pugh, the president of the New Mexico Criminal Defense Lawyers Association, quickly jumped on the findings and said:

“This study shows there is no place in the criminal justice system for broad generalizations and a one-size-fits-all approach. … The study further shows that the district attorney’s proposal to expand pretrial detention is not grounded in statistical support.”

Assistant Public Defender Jonathan Ibarra made a somewhat harsh comments about the District Attorney office when commenting on the Guerin report by saying:

“I know the judges take very seriously the detention hearings – different judges have different ideas – but they all take that responsibility very seriously … I think the issue is that the district attorney over files and underperforms.”

A DEFIANT DISTRICT ATTORNEY

DA’s Office spokesman Michael Patrick disputed the UNM study and defended Torrez’s proposed constitutional amendment by saying:

“[The community is upset with the] catch-and-release system that routinely puts armed and dangerous criminals back on our streets. … Rather than trying to prop up an obviously broken system, leaders in Santa Fe should listen to the community and follow the lead of other progressive jurisdictions – like California – that have enacted responsible bail reform measures that also include presumptions for armed and violent offenders. … There are numerous examples of dangerous criminals we have tried to detain, only to see them be released to commit a new violent crime. Enough is enough.”

https://www.abqjournal.com/1342255/review-casts-doubt-on-das-bail-reform-proposal.html

DO NOT BELIEVE WHAT HE SAYS HE WILL DO UNTIL HE DOES IT

On May 10, 2019, Bernalillo County District Attorney Raul Torrez and Albuquerque Mayor Tim Keller wrote a joint letter to the New Mexico Supreme Court requesting it to intervene and stop the plans of 2nd Judicial District Court (SJDC) to shift away from the use of grand jury system to a preliminary hearing system. On May 31, 2019, Chief Justice Judith Nakamura responded to the Torrez-Keller letter urging District Attorney Torrez to work with the Bernalillo County Criminal Justice Coordinating Council (BCCJCC) to resolve his concerns about ongoing cuts to the grand jury system. The BCCJCC consists of 11 council members, including the chief judges of the District and Metropolitan Court, the DA’s office, the district public defender, the sheriff, police chief and others.

On June 6, 2019, DA Torrez wrote back to Chief Justice Nakamura asserting he has no confidence that the concerns of prosecutors and police will have an effect on the members of the BCCJCC proclaiming it has repeatedly opposed the request for increasing grand jury time. Torrez wrote:

“Despite these misgivings, I will personally ask the BCCJCC to vote on a resolution that we maintain sufficient grand jury capacity to handle no less than 1/3 of our current felony referrals and that no additional cuts be considered until the crime rate in this community matches the rest of the state … ”

Confidential sources have confirmed that DA Torrez attended the last meeting of the BCCJCC. Despite his assurances to the Supreme Court, Torrez failed to present a resolution to the BCCJCC to increase grand jury time. To the surprise of many on the BCCJCC, Torrez did not even raise the issue of scheduling and increasing grand jury time despite the fact that news media were attending to report on the meeting.

THIRD TIME DA TORREZ DISCREDITED

The UNM Institute for Social Research study is the third time in the last 2 years that the ideas and positions of District Attorney Raul Torrez have been discredited with review and analysis. The other 2 are as follows:

FIRST: Soon after being elected DA, Torrez began to blame the courts for the rise in violent crime rates and many, including many in the news media, bought into his bogus argument that the “revolving door” is the courts fault. Less than six months after being sworn in as Bernalillo County District Attorney, Torrez had the DA’s Office issue a report that outlined the problems he perceived since the issuance by the Supreme Court of the Case Management Order (CMO). The main points of the DA’s 2016 report were that defense attorneys were “gaming” the systems discovery deadlines, refusing to plead cases, demanding trials or dismissal of cases when not given evidence entitled to under the law. The District Court did their own case review of statistics that discredited Torrez. The District Court found that it was the DA’s Office that was dismissing the majority of violent felony cases, not the courts.

SECOND: The 2nd Judicial District Court has been shifting from grand jury use to implementing “preliminary hearing” schedule since mid-2015. Raul Torrez was sworn in as District Attorney on January 1, 2017 and from day one Torrez has resisted the change over from grand jury to a preliminary hearing process to charge people with serious felonies. DA Raúl Torrez notified District Court that his office would no longer schedule preliminary hearings in State District Court after writing the New Mexico Supreme Court asking it to intervene and require the District Court to schedule increases in grand jury time. The District Court responded and told the Supreme Court that preliminary hearings were necessary, would require better screening of cases by the District Attorney. The District Court provided statistics that the DA’s Office has a 65% combined dismissal, acquittal and mistrial rate with cases charge by grand juries. It is the DAs office that was “gaming” the system by overcharging cases it was unable to get convictions on resulting in the office voluntarily dismissing cases, acquittals or mistrials.

COMMENTARY AND ANLYSIS

When DA’s Office spokesman Michael Patrick disputed the UNM study and said “enough is enough” he should have been talking to his boss Raul Torrez. Three times Raul Torrez has been discredited. DA’s Spokesman Michael Patrick needs to deliver that message to Torres and tell him to cease his assault on the courts and the criminal justice system.

Torrez needs to recognize it is way too easy to ignore the United States Constitution when you are pandering and running for office and essentially say “catch them and lock them up and throw away the key” or “to hell with constitution, that person is guilty and should be in jail until trial”. Vilifying the judiciary is a pathetic, ignorant tactic of politicians who seek to divide in order to get elected and to ingratiate themselves with voters and to garner publicity. To deny one-person due process of law, no matter how much we think they are guilty, is to deny us all of the constitutional rights we cherish in this country.

Sooner rather than latter, Raul Torrez should get the message that if he continues his assault on the courts, he will face an uphill battle for reelection if he does not get his act together and stop the under performance of his office. District Attorney Raul Torrez needs to buckle down and just do his job instead of looking for television cameras and reporters to blame judges and the courts for all his problems.

DA RAul Torrez needs to mend fences with the Courts if he truly wants to by ordering his prosecutors to commence preparing cases for preliminary hearings. Otherwise there is no end in sight to the political saga that is damaging the image of DA Raul Torrez and ruining his chances for another term.