On Tuesday, August 20, 2019, a day long status conference was convened by Federal Judge James Browning to listen to Federal Court Appointed Monitor James Ginger’s third “Outcome and Measures And Analysis Report” on the Court Approved Settlement Agreement (CASA). It has been more than a year since the last public status conference was held.

Judge James Browning took over the case from Judge Robert Brack. The U.S. Attorney’s Office, the city of Albuquerque, APD , the police union and the many stakeholders in the effort testified. Overall, the consensus throughout the all-day hearing was that APD has improved dramatically. All seem to agree that there is a lot more left to be done with the police reforms. All of the participants said they are committed to seeing the reform through.

BACKGROUND ON COMPLIANCE LEVELS

The third “Outcome and Measures And Analysis Report” deals with “operational compliance measures”. There are 3 compliance areas that are audited:

1. PRIMARY COMPLIANCE: Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA.

2. SECONDARY COMPLIANCE: Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so.

3. OPERATIONAL COMPLIANCE: Operational compliance is attained when there is an apparent adherence to policies in the day-to-day operation of the agency. For example, line personnel are routinely held accountable for compliance by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD command staff enforces its policies.

On May 1, 2019, Dr. Ginger filed his 9th “Compliance Levels of the Albuquerque Police Department”. The 9th Report found that APD achieved a 100% compliance with primary tasks, 79% secondary compliance and 61% operational compliance. Under the CASA, once APD achieves a 95% compliance rate in all 3 compliance areas, and the department sustains compliance for two years in all 3 categories the case can be dismissed.

PROBLEMS IDENTIFIED

August 20, 2019, Federal Monitor James Ginger appeared by telephone conference call with the Court. According to Dr. Ginger, one of the enduring problems APD needs to continue to deal with is “Operational Compliance” and getting supervisors, and in particular APD sergeants and lieutenants to enforce policies and to discipline officers who violate those policies.

Dr. Ginger told the Court:

“[APD Police Chief Michael] Geier has pulled a U-turn with this police department and is getting it in line with best practices … But until the sergeants are in harness and pulling in the same direction as the chief, things won’t get done as quickly.”

According to US Assistant Attorney General Paul Killebrew, with the US Department of Justice out of Washington, DC, the problems the DOJ found in its investigation into APD was a lack of “consistency and accountability” when officers violated policies or used excessive force. Killebrew said often times discipline was meted out only if stories appeared in the media or when the city needed a “sacrificial lamb.”

Killebrew said he still notices ways in which APD supervisors skirt reporting use of force by detailing an action in an “Additional Concern Memo” rather than an official report to the Internal Affairs Division which is required under the consent decree. According to Killebrew the practice spiked in 2018 at the same time the Internal Affairs Force Review Division was being established. The City Attorney’s Office and the Police Union Attorney objected to Killebrew’s characterization of the memos and said there was no concerted effort to hide misconduct.

Killebrew did say APD’s Internal Affairs “went beyond expectations” in tackling a 300-case backlog of use-of-force cases. The cases were older than 120 days prohibiting disciplinary action. Notwithstanding, the IA investigators looked at every single one of the cases, noted any infractions in an officer’s file and kept an eye out for enduring patterns or problems. It was reported many of the cases predated the current administration. Killebrew said he believed APD’s Internal Affairs “made the best out of a bad situation.”

https://www.abqjournal.com/1356242/apd-doj-city-outline-progress-made-on-police-reform-effort.html

COUNTER CASA AFFECT

Last year on September 10, 2018, a status telephone conference call was held with US District Court Judge Robert Brack who was presiding over the Court Approved Settlement Agreement (CASA) reforms. During the status conference, Federal Monitor Dr. Ginger told the federal judge that a group of “high-ranking APD officers” within the department were trying to thwart reform efforts.

The entire 53-page transcript of the conference call can be read here:

https://drive.google.com/file/d/1GzUumHhiD3Mw2_dLg_czXml_T6-3QI2w/view

It was revealed that the group of “high-ranking APD officers” were APD sergeants and lieutenants. Because sergeants and lieutenants are part of the police bargaining unit they remained in their positions and could not be removed by the Chief. APD Chief Michael Geier also reported last year to Judge Brack that he had noticed some “old-school resistance” to reforms mandated by the CASA. At the time, Chief Geier reported he replaced a number of commanders with others who agree with police reforms. However, Chief Geier reported he could not replace the sergeants nor lieutenants who were resisting the reforms because of the union contract.

Federal Monitor Ginger referred to the group as the “counter-CASA effect.” Ginger described the group’s attitude as “certainly ambivalent” to the reform effort and the CASA. According to the transcript of the proceeding, Dr. Ginger told Judge Brack:

“The ones I’m speaking of are in critical areas and that ambivalence, alone, will give rise to exactly the sort of issues that we’ve seen in the past at the training academy. … So while it’s not overt, you know, there’s nobody sabotaging computer files or that sort of thing, it’s a sort of a low-level processing, but nonetheless, it has an effect. … It’s a small group, but it’s a widespread collection of sworn personnel at sergeant’s and lieutenant’s levels with civil service protection that appear to be, based on my knowledge and experience, not completely committed to this process … It is something that is deep-seated and it’s a little harder to find a quick fix or solution to it, but I think, in the long term, by having this foundation with new leadership and a new direction from the top down, we should be able to get through this and survive it.”

The sergeants and lieutenants are part of the police union yet have important managerial positions with the police department that are protected as a condition of their collective bargaining agreement between police and the city. The sergeants and lieutenants are not at will employees and only can be terminated for cause with personnel rights of appeal.

APD UNION OPPOSITION TO DOJ REFORMS HAS NOT CHANGED

The APD Union was not a named party to the original civil rights complaint for excessive use of force and deadly force filed against the city by the Department of Justice (DOJ). Soon after the DOJ initiated the federal lawsuit against APD and the City, the APOA police union intervened to become a party to the federal lawsuit in order to advocate for union interests in city policy and changes to the “use of force” and “deadly force policies.”

The Police Union, despite public comments of cooperation and comments made to the court, have never fully supported the agreed to reforms. The Police Union contributed significantly to the delay in writing the new use of force and deadly force policies.

The union leadership has always been at the negotiating table and for a full year were involved with the drafting of the “use of force” and “deadly use of force” policy. The union contributed to the one-year delay in writing the policies objecting to many provisions of the policies. The police union repeatedly objected to the language of the use of force policy asserting the policy was unreasonable. This was evidenced by the monitors claim that submitted use of force policy was missing key components and the monitor saw 50-plus changes needing to be made to satisfy union objections.

The union leadership has attended and has sat at counsel table during all court hearings and the Federal Monitor presentations on his reports. During all the Court proceeding where the federal monitor has made his presentation to the federal court, the APOA union has made its opposition and objections known to the federal court regarding the use of force and deadly force policies as being too restrictive with rank and file claiming rank and file cannot do their jobs even with training on the policies.

Six of the 9 Federal Monitor’s status reports have been scathing against the city accusing the previous APD chain of command of delaying and obstructing the DOJ reform process, yet the police union had no comment and took no position. When the previous administration accused the federal monitor of biasness and attempted to have the monitor removed, after the Assistant Chief secretly tape a conference meeting with the monitor, the police union remained totally silent ostensibly giving its support to have the federal monitor removed.

The police union and its leadership have said in open court that the mandated reforms under the consent decree are interfering with rank and file officer’s ability to perform their job duties. During the August 20, 2019, a day long status conference, the APOA union President Shaun Willoughby made is clear that the attitude towards the CASA has not changed in the least.

District Court Judge Browning asked APOA Union President Shawn Willoughby what he and the union rank and file felt about the CASA. Willoughby’s responses were a quick condemnation of the CASA when he said “we hate it”, “we’re frustrated”, the reforms and mandates are “a hard pill to swallow”, that “all change is hard”. According to Willoughby, police officers are afraid to do their jobs for fear of being investigated, fired or disciplined. In the same breath, Willoughby went on to brag about how his union, unlike other police unions in city’s with consent decrees, actually worked and cooperated with the city and the DOJ.

A FIRST OF ITS KIND ACKNOWLEDGEMENT

What the news media failed to report was the exchange Judge James Browning had with Chief Michael Geier when he testified. Judge Browning asked APD Chief Michael Geier in no uncertain terms if he had read the April 10, 2014 Department Investigation Report that found a “culture of aggression” within APD. Judge Browning essentially asked if APD Chief Geier agreed with the DOJ findings that APD had engage in a pattern or practice of excessive force and deadly force that lead to so many police officer involved shootings. Chief Geier did not hesitate with his answers. Chief Geier said he had read the DOJ report that found a “culture of aggression”, he agreed with it and he did not disagree and he did not dispute any of the findings of the Department of Justice.

Chief Geier’s response is the very first time anyone, ever, within APD command staff has publicly acknowledge what was wrong with APD requiring the CASA. More important, it was a reflection of a Police Chief who is truly committed to the reforms and who is making progress. Many within the community had reservations about Geier’s appointment as permanent Chief. Based on what the Chief said to the Federal Judge and the progress made with the reforms, those reservations can now be laid to rest.

COMMENTARY AND ANALYSIS

The 9th Federal Monitors Report found that APD achieved a 100% compliance with primary tasks, 79% secondary compliance and 61% operational compliance. “Operational Compliance” is the adherence to policies in the day-to-day operation of the agency where the line personnel are routinely held accountable for compliance by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, APD “owns” and enforces its policies.

It is pathetic that after almost a full four years of the consent decree, APD is only at a 61% compliance rate with progress in the single digits percentage wise. The most likely reason for this is the police union where APD sergeants and lieutenants are part of the union and management at the same time. The federal monitor reported in no uncertain terms that there are problems with APD sergeants and lieutenants enforcing policies and to discipline officers who violate those policies.

REMOVE SERGEANTS AND LIEUTENANTS FROM UNION

There is a definite “chain of command” when it comes to APD. All Commanders, Deputy Chiefs and the Chief are at will positions that serve at the pleasure of the Administration, either the Mayor or Chief. APD has a clear line of authority that separates management from rank and file sworn police officers that must be preserved and honored.

Police sergeants and lieutenants by virtue of their titles, responsibilities, management and supervisory authority over sworn police officers are part of the “chain of command” management team of the police department. Including APD police sergeants and lieutenants who are part of management in the union bargaining unit creates a clear conflict of interest and sends mixed messages to rank and file sworn police officers.

APD police sergeants and lieutenants are the ones on the front line to enforce personnel rules and regulations, standard operating procedures, approve and review work performed and assist in implementing DOJ reforms and standard operating procedures policies. This point was repeatedly made by the Federal Monitor when he said “until the sergeants are in harness and pulling in the same direction as the chief, things won’t get done as quickly”. Others said the same thing during the August 20, 2019 hearing. In other words, without the 100% support of the sergeants and lieutenants to the CASA and mandated reforms, there will be little or no progress made with “operational compliance” and reaching a 95% compliance rate will take years.

What is so damn laughable is when Union President Willoughby said during the August 20, 2019 hearing that the union cooperated and participated with the reforms unlike all other Departments in other cities faced with a consent decree. What he was actually doing was disrupting the process by not being fully committed to the reforms and changes in policies. What was just as laughable was when he said last year that sergeants and lieutenants who are not following APD policies and complying with reforms are sent to internal affairs and disciplined. Willoughby failed to acknowledge that the Union and its attorney supply a defense and oppose any disciplinary action.

All APD police sergeants and lieutenants are clearly part of police management and chain of command and should not be a part of the union. The police union refuses to acknowledge or agree to knowing that if sergeants and lieutenants are removed from the bargaining unit it will eliminate the unions ability to influence the sergeants and lieutenants in management and it will reduce the size of the dues paying union membership. What is very problematic is that no one knows for certain to what extent the union is influencing the actions of the sergeants and lieutenants to resist the implementation of the CASA reforms that the union opposes. During the August 20, 2019 hearing Union President Willoughby made it clear the union membership “hates” the CASA, feels the reforms are “a hard pill to swallow” and that they believe “all change is hard”. Willoughby went so far as to say the rank and file are afraid to do their jobs for fear of being fired when he knows they can only be fired for cause and guaranteed personnel rights and procedures.

Sergeants and lieutenants need to be made at will employees and removed from the union bargaining unit in order to get a real buy in to managements goals of police reform and the CASA. APD Police sergeants and lieutenants cannot serve two masters of Administration Management and Union priorities that are in conflict when it comes to the CASA reforms. During the next round of union contract negotiations, the city should demand that the management positions of APD sergeant and lieutenant be removed from the APOA Union bargaining unit. Otherwise, the Keller Administration should seek to have the APOA Union removed as a party to the federal lawsuit, the consent decree and CASA negotiations.

The very last thing APD management, the Keller Administration and the public needs now is for sergeants and lieutenants to passively but deliberately oppose the reforms and acting as union operatives as opposed to management, which ostensibly is still happening based on what the Federal Monitor told the Court during the August 20, 2019 hearing.

Otherwise, the city will continue to deal with the APD Union version of the “Counter-CASA Effect” and it will take far more years to get APD in compliance of all the reforms.

On February 19, 2019 Governor Michelle Lujan Grisham signed Executive Order 2019-005 entitled “Creating a Public Employees Retirement Association Of New Mexico Solvency Task Force And Directing That The Task Force To Provide Certain Recommendations”. The 19-member task force included PERA officials, labor union leaders, retiree representatives and other stakeholders. The committee was tasked with providing recommendations to the Governor by August 30, 2019.

https://www.abqjournal.com/1282402/governor-creates-task-force-to-study-pension-issues.html

PERA’s Board Chair, Jacquelin Kohlasch, along with Executive Director Wayne Propst and Chief Investment Officer Dominic Garcia were appointed Task Force members.

The other Task Force members included a representative from the following entities:

New Mexico House of Representatives
New Mexico State Senate
New Mexico Investments & Pensions Oversight Committee
Retired Public Employees of New Mexico
Fraternal Order of Police
National Association of Police Organizations
New Mexico State Police Association
New Mexico Sheriffs’ Association
New Mexico Professional Fire Fighters Association
Albuquerque Fire Department Retirees’ Association
American Federation of State County & Municipal Employees
Communication Workers of America
New Mexico Counties
New Mexico Municipal League

There were 6 representatives from public safety out of 16 on the Governor’s PERA Solvency Task Force: the Fraternal Order of Police, National Association of Police Organizations, New Mexico State Police Association, New Mexico Sheriffs’ Association, New Mexico Professional Fire Fighters Association, Albuquerque Fire Department Retirees’ Association. The Task Force was top heavy with public safety stake holders and union officials who have absolutely no background nor experience in economics, finance and pension plans. Yet they were tasked to come up with solutions to the pension programs no doubt following the leadership of the Task Force Chair.

Public Safety retirees have far more lucrative retirement benefits when it comes to years of service required to retire and the amount of pension benefits that they will paid once retired. There are 40,000 PERA retirees and the overwhelming majority of those retirees are not public safety retirees and their pensions are significantly less than public safety retirees.

GOVERNOR’S EXECUTIVE ORDERS ON TASK FORCE RECOMMENDATIONS

The Governor’s Executive Order was very specific and stated:

“5. The recommendations provided by the PERA Solvency Task Force must meet the following requirements:

a. They must result in an actuarial certified projection that, as of July 1, 2019, the Unfunded Actuarial Accrued Liability of the PERA Public Employees Plan will be amortized with no longer than a twenty-five-year period using an assumed investment rate of 7.25%.

b. They must include recommended employer and employee contribution levels and benefit modifications that are actuarily sound, preserve the defined-benefit retirement offered by PERA, and ensure intergenerational equity for current and future PERA retirees and other members.

c. They must consider the funded levels of the Divisions within the PERA Public Employees Plan.

6. The PERA Solvency Task Force may also consider and make recommendations on the governance structure on PERA, including but not limited to, the composition of the PERA Board of Trustees and other recommendations related [to] the administration of PERA.”

THE GOVERNOR’S DEPUTY CHIEF OF STAFF

It is not at all surprising that Governor Michelle Lujan Grisham appointed as her Deputy Chief of Staff Diego Arecon, who retired last year from the Albuquerque Fire Department given their history of working together for many years. Mr. Arecon for years was the Albuquerque Firefighter’s Union President and a lobbyist for the fire union when it came to labor issues in Santa Fe. Originally, he was appointed by the Governor as the “Labor Relations” special advisor.

Years before becoming an elected official and after being a cabinet secretary, Governor Michelle Lujan Grisham was employed by the Firefighters Union and lobbied and worked on changes to Workers Compensation law. Those changes to the law were long overdue and increased coverage to firefighters and first responders for certain types of illnesses and diseases caused or related to their work environment. Such changes were common place throughout the country either by changes to the Workers Compensation laws or by court rulings.

ROLE OF CHIEF AND DEPUTY CHIEF OF STAFF

When it comes to a Governor, a chief of staff and deputy chief of staff, generally work behind the scenes to solve problems, mediate disputes with cabinet members, and deal with issues before they are brought to the Governor. Often chiefs of staff act as a confidante and advisor to the Governor, acting as a sounding board for ideas. The chief of staff normally manages the governor’s office, overseeing the daily operations and interrelationship of the gubernatorial staff and determining what decisions will be taken to the governor.

The chief of staff and deputy chief of staff helps the governor to develop and maintain a focused policy agenda. As primary strategist, chiefs of staff and deputies help to reinforce and promote the governor’s commitments and agenda. Chiefs of staff to be effective should be loyal to the Governor that appoints them, the Governor’s policies and fully committed to those policies. One thing for certain is that no Chief of Staff or Deputy Chief of Staff should ever promote their own personal agenda or the agenda of anyone else but the Governor. No Chief of staff or assistant chief of staff should ever represent their own personal agenda as the agenda of the Governor they serve.

GOVERNOR’S PERA SOLVENCY TASK FORCE RECOMMENDATIONS

On August 8 , 2019, the Solvency Task Force released its recommendations to eliminate the $6 billion unfunded liability in New Mexico’s pension system for municipal, county and state workers known as the Public Employees Retirement Association (PERA).

Following are the PERA Solvency Task Force Preliminary Recommendations as released by the Governor’ s Deputy Chief of Staff Diego Arecon who chairs the Task Force:

“• Fulfill the requirements of Governor Michelle Lujan Grisham’s January Executive Order including placing PERA on a path to pay off its $6 billion unfunded liability by the year 2043.

• Eliminate the current 7 year wait to receive a COLA upon retirement and restore it with the 2-year calendar period.”

ORGANIZED OPPOSITION TO TASK FORCE RECOMMENDATIONS

The Retired Public Employees Union (RPENM) is pushing back hard on plans to overhaul New Mexico’s underfunded pension system for public employees. Gerald Chavez, an RPENM Board Member and past president wrote an article published in the organizations Summer News Report and sent to all RPENM members. Mr. Chavez also served on the Governors Task Force. The published article was very damning with the most critcal paragraphs as follows:

“Unfortunately, the Governor’s executive order outlined some basic requirements or assumptions that served as the starting point for the task force, which may have unnecessarily limited the work of the task force and led us down a doomed fate. The task force was required to use a 25-year amortization period for the fund to achieve 100% or near 100% solvency. These assumptions are unnecessary, counterproductive and contrary to the latest thinking by leading experts in the field of pension fund management. Louise Sheirner of the Brookings Institution, Byron Lutz of the Federal Reserve Board and Jamie Lenney of the Bank of England just released a lengthy and detailed report convincingly countering such assumptions. Any serious recommendations, much less action by the legislature should, at the very least, consider the work of these and other experts.

As of the last meeting on July 11th, there was only one proposal, referred to as the “shared risk” model that was even being considered by the task force. No other proposals or models were considered by the task force. In addition to employee and employer contribution increases of 2% from each and a benefit cap change, it largely focuses on a 3-year suspension of the COLA, along with future COLA benefits being tied to the performance of the fund’s investment rate of return. I strongly voiced the need of the task force to consider different options, gather more information, run various scenarios and look at all options. I also urged the task force to consider “Grandfathering” in retirees from the proposed changes to and/or suspension of the COLA.”

According to the retiree union, the retirement system does not actually need to reach full funding and there is no immediate crisis and less drastic measures can be taken. The funded ratio for PERA assets divided by its liabilities is now at about 74%.

The group of retirees are saying full funding is not necessary and cite academic research published by the Brookings Institution, a Washington, D.C.-based think tank. Jamie Lenney of the Bank of England, Byron Lutz of the Federal Reserve Board of Governors and Louise Sheiner of the Brookings Institution wrote the analysis. The authors said the presence of unfunded liabilities doesn’t necessarily mean a pension plan is unsustainable. According to the study:

“Overall, our results suggest there is no imminent ‘crisis’ for most [government] pension plans” [and ] that pension plans “have always operated far short of full prefunding.”

Notwithstanding, experts in retirement plans say 100% funding is still a “worthwhile goal.” Alex Brown, research manager for the National Association of State Retirement Administrators, said there’s broad consensus among actuaries, policymakers and professional groups that government pension plans should target full funding over a reasonable period of time.

Miguel Gómez, the Executive director of the Retired Public Employees of New Mexico said the Brookings analysis suggests New Mexico has plenty of time to address its pension funding and shortfall. According to Gomez, adjustments to PERA are in order but it is not necessary to reach 100% funding within 25 years and there is still time to achieve it. Gomez also suggested setting a less ambitious goal showing the credit rating agencies that New Mexico is taking serious steps to better fund its pensions but without creating unnecessary harm.

https://www.abqjournal.com/1356227/new-mexico-retirees-question-math-in-proposed-pension-fix.html

REVENUE SOURCE

On August 17, it was reported that total state revenue collections were roughly $273 million above projected levels through April due primarily to skyrocketing oil production in southeastern New Mexico that has led to a regional economic upswing. New Mexico is now ranked the 3rd largest oil producing state in the United Sates. The state is now on track to collect an unprecedented $7.8 billion in the budget year that ended June 30 and could allow for additional spending increases on public schools, roads, pension funds and other state programs.

https://www.abqjournal.com/1354833/nm-coffers-flush-with-cash-from-oil-boom.html

COMMENTARY AND ANALYSIS

The Governor’s Executive Order creating the Task Force contains only 3 major requirements:

1. A 7.25% actuarially certified projection,
2. Recommend employer and employee contribution levels and benefit modifications that are actuarily sound and preserve PERA defined-benefit plans and
3. Consider funded levels of the PERA funds.

The Task Force makes 9 recommendations that are nothing more than general declarations of goals that contain absolutely no findings and information as to how the recommendations were arrived at nor how they will be achieved. There is no financial analysis how the recommendations will achieve the 7.25% actuarily certified projections. Most importantly, the Task Force recommendations contain no data how the modifications recommended will preserve the PERA defined-benefit plans, just declarations that it will be achieved.

Last year, candidate for Governor Michelle Lujan Grisham said she would oppose cuts to PERA benefits, including any reduction in the annual inflation-related pension adjustments that retired state workers and teachers receive. According to a campaign spokesperson at the time:

“She does not believe that New Mexico needs to eliminate our defined benefit system for current or future educators and state employees and opposes any reduction in cost-of-living adjustments.”

The PERA Task Force Recommendations are in total opposition and conflict sharply with the Governor’s position when she was running for Governor. This is surprising seeing as she appointed the Task Force.

GOVERNOR SHOULD REMOVE DEPUTY CHIEF OF STAFF

It is painfully obvious that the Governor’s Deputy Chief of Staff Diego Arecon was promoting his own former union or his personal agenda and not that of the Governor. Deputy Chief of Staff Diego Rincon should have known better than to release the recommendations without more thought, more detailed analysis with findings and justifications on each one of the recommendations. No public testimony was allowed by Arecon and Task Force meetings were held behind closed doors. The Deputy Chief of staff has now placed the Governor in a very awkward and precarious position that will alienate many of her supporters for advocating his own agenda and not her agenda. For these reasons Diego Arecon should be replaced as Assistant Chief of Staff and be given duties elsewhere in state government.

THE ROAD FORWARD TO 100% SOLVENCY

The first thing that Governor Michelle Lujan should do is to set aside the recommendations of the PERA Pension Fund Task Force. What are needed are outside experts in finance and pension funds to make recommendations to the legislature on what can and should be done to save PERA, presuming it really does need saving. The Governor should form a working group of actual experts and go from there to find real solutions.

The financial problems PERA is experiencing can be directly related to the type of pensions offered to government employees as well as what many PERA retirees feel has been mismanagement of the pension funds. Nothing was mentioned by the Task Force of trying to implement any other types of pension programs to be offered. There was no Task Force recommendations of a major infusion of finances that will be available from oil and gas production.

PERA’S goal is to reach 100% funding of liabilities by 2043. The New Mexico PERA pension program has 75.3% of funded liability in current funding assets to future liability making it one of the strongest pension programs in the country. The two major pension funds that are currently problematic are shortfalls of 7.99% of State General pensions and 13.87% for Municipal Fire Pension programs. Contribution shortfalls of State General and Municipal Fire are up and until 2066. PERA management has failed to articulate in clear terms all the options available to insure PERA will reach a 100% funding ratio by 2043.

Revenues from the oil and gas boom should be used in part reduce the $6.1 unfunded liability within a 5 to 10-year span. Such infusions of funding would no doubt benefit no less than 90,000 PERA workers not to mention their family’s over many more years with the funding no doubt being pumped into the economy. While the State is experiencing a windfall in increased revenues, the New Mexico Legislature should use a portion, not all, of the surplus revenues to increase funding to the PERA funds that are currently underfunded, currently the municipal fire and general worker funds to the tune of $4.1 Billion.

At a minimum, the PERA Pension plans are solvent for at least 23, if not more years. Notwithstanding, PERA Pension reform must again be undertaken. The difference is the New Mexico Legislature has time to address the PERA pension system and the sky is not falling by any means. The legislature can make adjustments like increasing age of retirements, change the formula to calculate retirement, make increases in contributions and infuse state funding into the pension funds, but only those that are underfunded which currently the municipal fire fighters fund and the general worker fund.

Better management of the pension funds and increasing returns on investment should be the major goal of any changes to the PERA pension programs to insure long term solvency.

For related blog articles see:

Joe Monahan Blog: “Raise Retirement Age, Leave Worker Contributions And COLA Alone”; ALSO: PERA Task Force Recommendations; Study Shows There Is NO Immediate Crisis

Dan Klein: Governor’s PERA Task Force Chairman Promotes Public Safety Unions Agenda And Own Agenda; Also: Task Force Recommendations And Underfunded Plans Identified

Governor’s PERA Solvency Task Force “Pokes The Bear”; Dissolve Task Force And Form Working Group

PERA Pension Plan Investments Continue To Falter; Gov.’s PERA Solvency Task Force Top Heavy With Public Safety Reps

In 1970, the US Congress enacted the Racketeer Influenced and Corrupt Organizations Act (RICO) to prosecute organize crime figures who were not committing crimes themselves but were running and benefiting from criminal organizations.

NEW MEXICO RICO STATUTE

In 1996, the New Mexico legislature enacted its own RICO statute “to eliminate the infiltration and illegal acquisition of legitimate economic enterprise by racketeering practices and the use of legal and illegal enterprises to further criminal activities”. NM Stat § 30-42-2 (1996)

“Racketeering” is defined as any act that is chargeable or indictable under the laws of New Mexico and punishable by imprisonment for more than one year, involving any number of felony offenses. Those offense listed in the statute include: murder, robbery, kidnapping, forgery, larceny, fraud, embezzlement, fraudulent securities practices, loan sharking, embezzlement, receiving stolen property, bribery, gambling trafficking in controlled substances, arson and aggravated arson, promoting prostitution criminal solicitation, distribution of controlled substances or controlled substance unlawful taking of a vehicle or motor vehicle embezzlement of a vehicle or motor vehicle, fraudulently obtaining a vehicle or motor vehicle receiving or transferring stolen vehicles or motor vehicles. (NM Stat § 30-42-3 (1996 ) The criminal code provides for second and third decree felony penalties. (30-42-4. Prohibited activities; penalties.)

New Mexico’s criminal racketeering statute has a civil component to it as well. It provides:

“A. A person who sustains injury to his person, business or property by a pattern of racketeering activity may file an action in the district court for the recovery of three times the actual damages proved and the costs of the suit, including reasonable attorney’s fees.

(1) ordering any person to divest himself of any interest, direct or indirect, in any enterprise;
(2) imposing reasonable restrictions on the future activities or investments of any person;
(3) ordering dissolution or reorganization of any enterprise;
(4) ordering the payment of three times the damages proved to those persons injured by racketeering; and
(5) ordering the payment of all costs and expenses of the prosecution and investigation of any offense included in the definition of racketeering incurred by the state to be paid to the general fund of New Mexico.” 30-42-6. Racketeering; civil remedies.

RICO CHARGES ANNOUNCED

Two and a half months after Bernalillo County District Attorney Raul Torrez took office, he announced and took credit for his office indicting 15 young people, ages 20 to 28, on gang related racketeering and other charges in the spring 2017. The RICO indictment was based upon an investigation of an alleged gang which APD said had started out tagging the area around West Central and escalated to committing violent crimes. District Attorney Raúl Torrez held a news conference, which is one of his favorite things to do, calling the defendants “members of one of Albuquerque’s more notorious street gangs.”

In the two and a half years since District Attorney Torrez filed the RICO indictment, 10 defendants have plead guilty or no contest. Two of those defendants still have cases pending and two are now dead. The listing of those who entered into plea agreements can be found in the postscript to this article.

AN INNOCENT MAN INDICTED

On Sunday, August 18, 2019 the Albuquerque Journal reported on its front page that one of the young men indicted was 20-year-old Adan Perez-Macias. It was reported he was not a member of the gang APD was investigating or any other gang. It turns out Adan Perez Marcus did not know and never met the others indicted. Perez Marcus was not even in New Mexico at the time the crime he was accused of was committed.

Adan Perez-Macias was reported as saying:

“Supposedly, I was in Tijeras with another group of people and we robbed an old person. … That’s what they had told me. I’ve never even been to Tijeras. … Some of the stuff [I was charged with] sounded outrageous.”

On the day authorities say he and two others burglarized a Tijeras home, Perez-Macias was working at a seaside restaurant in Naples, Florida. When his indictment was announced, Perez-Macias quit his restaurant job and used his savings to buy an emergency plane ticket back to Albuquerque to try and clear his name.

Perez-Macias was charged with aggravated burglary, conspiracy, receiving or transferring a stolen motor vehicle and several other crimes including racketeering after a homeowner in Tijeras found one of the other 2 defendants in the home. The other two defendants charged along with Peres-Macias were arrested in a stolen pickup that matched the description of a vehicle seen at the burglary.

The wrongful indictment of Perez-Macias can directly attribute to one of the accused burglars dropping a similar name to Perez-Macias’. Law enforcement and the District Attorney’s Office failed to contact Perez-Macias to try and determine if he was involved with the allege crimes.

The charges against Perez-Macias were dismissed 7 months after the indictment was filed. However, he suffered emotionally with the pending charges hanging over his head for 7 months. He still has a felony arrest record that will no doubt be revealed whenever a background check is done on him.

You can read the extended report here:

https://www.abqjournal.com/1355141/antigang-tactic-sweeps-up-wrong-man.html

DA TORREZ LABELS INDICTMENT “UNFORTUNATE”

District Attorney Raul Torrez labeled the wrongful indictment of Perez-Macias as “unfortunate” and said it could have happened in any case by saying:

“Sometimes law enforcement gets bad information, and prosecutors rely on that information, and, then when they learn about new facts, whether it’s an alibi or being out of state, they take steps to correct it. … But I don’t think that including this one individual should undermine the general strategy or work that goes into RICO prosecutions.

But we’re also analyzing, can we establish patterns of conduct, known associations and whether or not this is in fact a group that is acting in a concerted way. My sense is that both law enforcement and prosecution can learn from that and learn about how to more effectively use this in a way that doesn’t upend people’s lives and doesn’t cause harm … We can be smart and be effective as institutions. We make mistakes and we learn from these mistakes and improve.”

Torrez claimed the chances of mis identification are much smaller now that he has created a Crime Strategies Unit who review social media and forensic evidence and who work with APD and BCSO.

COMMENTARY AND ANALYSIS

This news story falls squarely under the category of “shit happens” in the Bernalillo County District Attorney’s Office, even destroying an innocent man’s reputation and life. To District Attorney Raul Torrez it was merely “unfortunate” that an innocent person was indicted on numerous charges. Torrez said it could have happened in any case. That is simply not true and Torrez knows it.

RICO charges are based upon holding those responsible for crimes and a continuing course of conduct. Racketeering charges are very easy to secure indictment’s on based on one guilty person accusing another for being involved with the crime. The risk of charging an innocent person, such as Adan Perez-Macias, is the problem.

The fact that New Mexico’s RICO statute has a civil lawsuit component that allows the District Attorney or a private citizens “to prevent, restrain and remedy racketeering” and file a civil action in the district court for “the recovery of three times the actual damages proved and the costs of the suit, including reasonable attorney’s fees” suggests that such RICO actions were intended for more sophisticated crimes than those engaged in by “members of one of Albuquerque’s more notorious street gangs” who started out as a west side “graffiti tagging team” as described by Torrez. Torrez should have initiated a civil action against the tagging team of 21+ year old if he wanted to pursue a RICO charge as well as indicting them separately on the underlying criminal charges.

PROBLEMS WITH RICO CRIMINAL CHARGES

Some legal scholars call RICO charges as “guilt by association.” A RICO charge is not like most cases and are more complicated. In New Mexico, RICO charges are very few and far between. What has been learned by prosecutors is that RICO indictments can be easily obtained but usually successful convictions in state court are difficult. Further, RICO actions are considered far more appropriate in white collar crime cases such as larceny, fraud, embezzlement, fraudulent securities practices, loan sharking, embezzlement, receiving stolen property as opposed to crimes of a “violent street gang” that started out as west side tagging team.

Under most cases charged by indictment for violent crimes or felonies, there is evidence placing a charged defendant at the scene of the crime. It’s unlikely that any grand jury would indict without such evidence. With a RICO charge, if an innocent person is named or identified in a case by other defendants as being involved with the crime committed, even though that person was not there, they can be indicted or charged with RICO violations.

TORREZ BLAMES COURT FOR HIGH CRIME RATE

When Torrez ran for Bernalillo County District Attorney, he said our criminal justice system was broken, it was in dire need of change and he was the guy to fix it. Within six months after being elected, Torrez had his office prepare a report on the statistics regarding the number of felony cases that were being dismissed by the District Court. Torrez accused the District Court for being responsible for the rise in Albuquerque crime rates and releasing violent offenders pending trial. District Attorney Raul Torrez also accused defense attorneys of “gaming the system” in order to get cases dismissed against their clients. A subsequent report prepared by the District Court revealed that it was actually the District Attorney’s office that was in fact voluntarily dismissing far more felony cases for various reasons, including his office not being prepared for trial, the office’s failure to meet discovery deadlines, and prosecutors failure to turn evidence over to defense counsel as mandated by law and discovery court orders.

The case dismissed against Adan Perez-Macias is now one of the thousands of cases dismissed by the DA’s office with DA Torrez being the one who is “gaming the system”.

TORREZ RESISTS PRELIMINARY HEARINGS

Since mid-2015, and before Torrez was elected, the 2nd Judicial District Court began shifting from grand jury use to implementing “preliminary hearing” schedule. 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 presentation to a preliminary hearing process. Grand jury indictments are far easier to secure because of the exclusive control prosecutors have over the confidential hearings. Preliminary hearing on the other hand are controlled by the court, held in public, with the defendant present.

In September, 2018 the 2nd Judicial District Court notified District Attorney Raul Torrez that it would be drastically reducing the amount of time for grand jury and shifting to preliminary hearings. Torrez wrote the New Mexico Supreme Court demanding that they intervene and order the District Court to offer more grand jury time. The District Court responded that preliminary hearings were necessary and would require better screening of cases by the District Attorney. District Court presented data to the Supreme Court that showed how overcharging and a failure to screen cases by the District Attorney’s Office was contributing to a combined 65% mistrial, acquittal and dismissal rate at trial. The Supreme Court declined to intervene.

Had a preliminary hearing been prepared for to charge Adan Perez-Macias, it highly likely the DA’s office would have discovered that they would be charging an innocent man.

CONSTITUTIONAL AMENDMENT

In May, 2019, Bernalillo County District Attorney Raúl Torrez proposed a new constitutional amendment that would create a “presumption” that a defendant is a threat to the public when charged with a violent crime and that they should be jailed until pending trial without bond or conditions of release. The presumption would shift the burden of proving dangerousness from the prosecution and require defendants accused of certain crimes to show and convince a judge that they should be released on bond or conditions of release pending their trial on the charges.

According to Torrez, the cases where a defendant would be required to show they do not pose a threat to public and should be released pending their 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. Under the constitutional amendment Torrez wants approved, given the charges Adan Perez Marcus was faced with, he would in all likely have sat in jail for 7 months until the District Attorney’s Office realized he had been wrongfully charged.

CONCLUSION

When discussing the wrongful indictment of Perez Marcus, Torrez said “We can be smart and be effective as institutions. We make mistakes and we learn from these mistakes and improve.” Torrez had no apology, no expression of empathy and no offer of help to 20-year-old Adan Perez Marcus. When DA Raul Torrez says it’s all about justice for victims, he apparently does not believe innocent people are entitled to justice nor any kind of an apology for being wrongfully accused.

Any apology from Raul Torrez in this case is simply not enough. The mistake made in indicting and innocent man could in all likely been avoided with a little more diligence and no rush to indict. At a bare minimum, DA Torrez needs to instruct his office to seek to expunge the arrest record of Adan Perez Marcus. Further he should seek the justice he believes in and contact the New Mexico Risk Management and ask the Perez Marcus be compensated for the pain and suffering associated with the incompetence of his office indicting an innocent man.

Torrez has now announced that he wants to do more RICO actions thinking it’s an effective way to secure easy indictments and secure plea agreements without trials. Before District Attorney Raul Torrez does that, he should go back and review the criminal racketeering statute and determine if such and action is really appropriate. Otherwise Torrez risks the accusation that they he is acting in bad faith, being overzealous by overcharging a case and “gaming the system” to get his conviction rates up.

The general public and voters can only hope DA Raul Torrez does not continue with a pattern of indicting innocent people and then holding a press conference. He should also learn far more from all the mistakes he has made with his relentless attacks on the courts and the criminal justice system.

_________________________________

POSTSCRIPT

According to the New Mexico online court records and the District Attorney’s Office, the cases against the defendants that Adan Perez-Macias were charge with RICO charges have been disposed of as follows:

Daniel Lee Sandoval, 22, pleaded guilty to 36 charges, including racketeering, second-degree murder, and extreme cruelty to animals. He was sentenced to 30 years in prison.

Reymundo Tilo Lucero, 24, pleaded no contest to 16 charges including aggravated burglary, conspiracy and several counts of larceny of a firearm. He was sentenced to 12 years in prison.

Dominic Jiminez, 21, pleaded guilty to 13 charges, including racketeering, possession of methamphetamine and aggravated assault with a deadly weapon. He was sentenced to nine years in prison

Carlos Zuniga, 36, pleaded guilty to robbery, breaking and entering and conspiracy. He was sentenced to four years in prison.

Kevin Michael Golladay, 24, pleaded guilty to conspiracy, contributing to the delinquency of a minor and tampering with evidence. He was sentenced to four years in prison.

Paul Max Martinez, 22, pleaded guilty to 29 charges, including racketeering, aggravated burglary, larceny of a firearm and conspiracy. He was sentenced to 20 years in prison.

Anthony Ray Serna, 24, pleaded no contest to conspiracy, receiving stolen property and possession of a controlled substance. He was sentenced to four years in prison.

Eligius Joshua Montano, 22, pleaded guilty to 13 charges, including aggravated fleeing a law enforcement officer, larceny of a firearm and receiving or transferring a stolen motor vehicle. He was sentenced to seven years in prison.

Jamil William Lewis, 21, pleaded to a nine year jurisdiction and is in the young adult court program pending sentencing.

Esteban Garcia, 21, is scheduled to go to trial at the end of September.

Renee Ortega, 27, still has a trial pending. She has a bench warrant filed for failing to appear at a hearing.

Santiago Benavidez, 24, case against him was dismissed due to witness unavailability, but he pleaded guilty in another case.

Aaron Michael Sanchez, 27, is deceased.

Duwin Raul Perez-Cordova, 28, is deceased.

https://www.abqjournal.com/1355141/antigang-tactic-sweeps-up-wrong-man.html

On June 28, 2019, Governor Michelle Lujan Grisham announced the creation of a “Cannabis Legalization Working Group.” The task force consists of 19 members including the Democratic and Republican legislators who sponsored unsuccessful legislation this year to authorize and tax recreational marijuana sales at state run stores. The group also includes representative of a labor union, sheriff’s department, health care business, Native American tribes, medical cannabis businesses, a county government association, and commercial bank and hospital company.

https://www.krqe.com/top-stories/new-mexico-governor-seeks-ideas-for-recreational-pot-law/

The Working Group is in the process of holding public hearings, listening to the public and compiling recommendations for the governor that will be incorporated into proposed legislation to be introduced in the 2020 legislative session. Governor Lujan Grisham said after the Legislature adjourned on March 21, 2019 that she would add the issue of legalizing recreational marijuana use to the 2020 legislative agenda which will be a 30-day session.

Eleven states thus far have legalized recreational marijuana. Candidate for Governor Lujan Grisham said last year that she supports legalizing the recreational use of marijuana for adults but with a few caveats: it must be done in a way that addresses workplace intoxication and driving under the influence and it must be done in a way that keeps it away from children and meet other requirements of regulation, production, sale and distribution.

CONSULTANT REPORT TO WORKING GROUP

On August 15, 2019, the Cannabis Legalization Working Group met in Albuquerque and listened to a consultant who volunteered her services to the group and has studied marijuana demand for a private medical marijuana company. She made it clear the she was speaking to the group on her own behalf.

Consultant Kelly O’Donnell told the working group that if recreational marijuana is legalized in New Mexico, the state can expect out-of-state tourism and the reduced stigma and other factors to help fuel sales of recreational marijuana.

O’Donell reported that the demand for recreational marijuana and related cannabis products has far outpaced expectations in the State of Colorado since it was made legal. O’Donnel estimated the annual revenue for state and local governments could hit $120 million in five years, well beyond what legislative analysts estimated earlier this year. The market will also depend on the tax structure and the of regulatory decisions that will have to be implemented.

O’Donell told the group that New Mexico could expect more adults to use marijuana if it’s legal and as it becomes more socially acceptable. She made the claim by saying:

“It’s not the kids who are smoking more pot. It’s grown-ups, which is a good thing, generally speaking. [ With legal marijuana] There will be more people willing to use it.”

With New Mexico’s proximity to El Paso, Texas and Juárez, Mexico, tourism is no doubt a major factor. The laws in Mexico on marijuana use are conflicted.

Texas is not expected to legalize marijuana anytime soon. O’Donnell said that if legalization is approved, New Mexico policymakers should consider how to tap into the Texas market without violating interstate commerce laws and maintaining health and safety protections.

James Girard, a member of the task force and an economist for the state Taxation and Revenue Department, told the group the large number of people who live in Texas and Mexico near the New Mexico line will have a “multiplier effect” that should be considered if marijuana is legalized in the state. Normal use and sales could be doubled and even tripled with sales mad to those coming from Texas or Mexico.

PROTECTING MEDICAL MARIJUANA PROGRAM

Task force member Heath Grider, a Portales resident whose wife is a medical cannabis patient, said the demand for recreational marijuana would have to be dealt with effectively to ensure that patients aren’t left without medical marijuana. According to Grider, medical marijuana suppliers are finding it difficult to keep up with the market in rural New Mexico.

New Mexico Cabinet Health Secretary Kathy Kunkel did report to the task force that other states that legalized recreational marijuana have experienced drops in enrollment in their medical programs. Kunkel said she has heard complaints from medical marijuana patients who say they can’t get marijuana products such as lotions, gels and suppositories.

The task force chairman, City Councilor Pat Davis said the group is examining how to legalize marijuana without harming New Mexico’s long-standing medical cannabis program. The task force supposedly is exploring a variety of options for protecting the medical marijuana program.

There are at least 4 options being looked at by the task for to protect the medical marijuana industry and they are:

1. Establishing a licensing and fee system to provide an incentive for companies that produce marijuana for medical consumers.

2. State regulators could require that a certain amount of a company’s sales be dedicated to patients.

3. New Mexico could also encourage medical consumers to stay in the program by exempting their purchases from the taxes levied on recreational consumers.

4. The State could require providers to reserve certain products with high potency for medical patients only.

https://www.abqjournal.com/1353939/pot-legalization-could-draw-out-of-state-visitors.html

ARIZONA EFFORTS TO LEGALIZE RECREATIONAL MARIJUANA

One New Mexico bordering state that was not discussed was Arizona. Arizona voters may get a chance to decide in 2020 whether to legalize recreational marijuana. Legalization advocates in the state have said they’ve filed paperwork with the Arizona Secretary of State to put the question before voters in 2020. At least 237,645 signatures from registered voters need to be collected by July 2020 to qualify for the ballot. The 2020 initiative would allow adults 21 and older to have up to 1 ounce of marijuana and would also create more retail marijuana licenses. The Phoenix New Times reported.

In 2016 a legalization initiative was defeated in Arizona after getting only 49% of the vote. Arizona was the only loss in 2016 out of 8 states that had legalization initiatives on the ballot. In 2016, California, Maine, Massachusetts and Nevada all legalized recreational marijuana. Arkansas, Florida and North Dakota approved medical marijuana legalization.

https://mjbizdaily.com/arizona-group-files-recreational-marijuana-legalization-ballot-measure/

2019 NEW MEXICO LEGISLATURE’S PAST ATTEMPTS TO LEGALIZE MARIJUANA RECREATIONAL USE

Attempts to legalize recreational marijuana use in New Mexico have been extremely difficult during the last 8 years, predominately because of strong opposition from the former Republican Governor “She Who Must Not Be Named” and the conservative Republican and Democrat legislators who should be named.

During the 2019 New Mexico Legislature which ended March 15, 2019, that changed with the election of Governor Mitchell Lujan Grisham. The most progress was made when one bill actually made it through the New Mexico House of Representatives. The Governor’s “Cannabis Legalization Working Group” said it would be looking at the failed legislation as a starting point and may even modify it for the 2020 session. For that reason, following is a reminder of the legislation:

HOUSE BILL 356

On March 7, 2019 the state House passed House Bill 356 (HB 356) with a two-vote majority of 36 to 34. HB 356 was the first recreational marijuana proposal ever passed by one of New Mexico’s legislative chambers. HB 356 was legislation that was the result of bipartisan efforts and talks involving House Democrats and Senate Republicans. Every Republican Representative in the House voted against HB 356 joining 10 Democrats in opposition to it. All previous efforts of marijuana legalization have failed in the Senate because of skepticism from conservative Democrats in the Senate.

HB 356 bill included a provision for state run and regulated stores. The compromise bill required people to keep receipts showing they purchased their marijuana legally, and they could carry only 1 ounce of cannabis and couldn’t grow it on their own. House Bill 356 was a broad marijuana legalization proposal and dedicated some of the tax revenue from cannabis sales to research into cannabis impairment, purchasing roadside testing equipment for law enforcement and to train police officers as drug recognition experts when drivers are stopped. The bill made it clear that employers could still maintain drug-free workplace policies.

The bipartisan HB 356 stalled in the Senate and never made it to the full Senate for passage. The legislation failed when the session was adjourned on March 21, 2019.

SENATE BILL 577

Senate Bill 577 was the New Mexico Senate’s version of legislation that would legalize the recreational use of marijuana. It included state run stores. The 3 Republican Senator sponsors Cliff Pirtle, Mark Moors and Craig Brandt argue that legalization is inevitable and that state-run stores would help limit exposure to children and allow New Mexico regulators to respond to problems. State run stores appealed to many because it would have given the state strong regulatory controls and make it easier to keep cannabis products away from children.

Under the Senate proposed legislation, New Mexico itself would get into the cannabis business by operating a network of retail stores to sell marijuana to adults 21 and older. A state “Cannabis Control Commission” would have been created to operate cannabis shops by summer 2020. The marijuana would have been sold on consignment, meaning the state would not own the cannabis.

Under the Senate Bill, recreational marijuana would have been grown by private businesses under a complex regulatory system and sold only at state-run stores, with limited exceptions. It would have given the state tremendous control over where and how the products would have been sold and who could have gotten their product to customers. According to the Drug Policy Alliance, the system proposed for state run recreational cannabis stores would have been the first of its kind for recreational marijuana in the United States. Senate Bill 577 never made it through the State Senate and the legislation failed when the session was adjourned on March 21, 2019.

CHANGES MADE TO NEW MEXICO’S MEDICAL CANNABIS LAW

There are over 70,000 people enrolled statewide in New Mexico’s medical cannabis program. During the 2019 New Mexico Legislative session, the legislature enacted changes to the medical cannabis laws giving more workplace protections to those enrolled in the program. In April, 2019, Governor Lujan Grisham signed into law the changes made by the legislature to the program and the changes took effect on July 1, 2019.

Two of the major changes involve work place protections for those enrolled in the program and are:

1. The law now provides that it is unlawful in most circumstances for an employer to fire or otherwise discipline a worker based on allowable conduct under the state’s medical marijuana program. It is not clear whether this change in the law will affect employers with policies that require drug testing of applicants before they are hired, with a positive test precluding their hiring regardless of whether they have a medical marijuana card.

2. The second major change to the law specifies that employers can still establish policies barring use of medical marijuana on the job or showing up under the influence of the drug and take action against employees who violate the policy. Concern has been raised in the business community that anything that would limit an employer’s ability to enforce their drug-free workplace programs would be problematic.

New Mexico State Senator Jerry Ortiz y Pino, the sponsor of the legislation, said in an Albuquerque Journal interview the changes are not intended to render drug-free workplace policies untenable, but acknowledged lawmakers may have to revisit the issue in the future to further fine-tune language in the law.

Three other major changes to New Mexico’s medical cannabis law included:

1. Allowing medical marijuana in schools, under certain circumstances.

2. Extending the length of an approved patient identification card from one year to three years.

3. Mandating that a licensed medical marijuana user cannot be denied an organ transplant on the basis of their participation in the program.

https://www.abqjournal.com/1335093/medical-cannabis-law-changes-may-spark-confusion-ex-business-leaders-concerned-about-enforcing-drugfree-workplace-rules.html

NEW MEXICO REDUCES CRIMINAL PENALTIES

During the 2019 New Mexico legislative session, lawmakers enacted legislation that reduces criminal penalties for possession of small amounts of marijuana. In April 2019, Governor Lujan Grisham signed into law Senate Bill 323 that makes first-time possession of up to a half ounce a petty misdemeanor offense, punishable by a $50 fine. It also decriminalizes possession of drug paraphernalia, making New Mexico the first state to do so in the country. The reduced criminal penalties go into effect on July 1, 2019.

COMMENTARY AND ANALYSIS

The work of Cannabis Legalization Working Group appears to be progressing well with every effort being made to reach a consensus on what to submit to the Governor. The recommendations and any suggested legislation is the necessary groundwork for a legalization bill to make it to the Governor’s desk in 2020. With The 2020 legislative session that starts in mid January and time is getting short. Time is still needed for interim legislative committees to review any of the proposals and perhaps even find sponsors.

One option that will likely be considered is placing the issue on the ballot for voters to decide, which has been done in other states like Arizona and Colorado. However, if a strong consensus can be achieved and if a recreational legalization program can be supported by large majorities in both the House and Senate, they should proceed and vote to legalize the recreational use of marijuana.

Legalize, regulate, tax like alcohol and cigarettes.

On August 12, 2018, Federal Court Appointed Monitor James Ginger, who audits the Court Approved Settlement Agreement (CASA) agreed to by the City and the Department of Justice, filed his “MONITOR’S THIRD “298 REPORT” PREPARED IN RESPONSE TO PARAGRAPH #298 OF THE CASA OUTCOMES MEASURES AND ANALYSIS OF THE ALBUQUERQUE POLICE DEPARTMENT’S IMPLEMENTATION OF THE CASA”. The report is mandated by the CASA. On Wednesday, August 20, 2019, 8:30 am, a hearing has been scheduled at the Federal Courthouse, Vermejo Courtroom, Lomas and 4th Street, for the Federal Monitor to make a presentation to the Federal Judge overseeing the CASA on his “Outcomes Measures and Analysis Report”.

The entire 52-page report can be read here:

https://www.justice.gov/usao-nm/page/file/1193921/download

This blog article is a deep dive into the Monitor’s third “Measures and Analysis” Report. It is followed by an Analysis and Commentary regarding what has been accomplished by the Albuquerque Police Department when it comes to the CASA. The article advocates dismissal of the Federal lawsuit against APD.

OPERATIVE REQUIREMENTS

The 3rd report specifically covers “ operative requirements” that are outlined in “Paragraph 298” of the Court Approved Settlement Agreement (CASA). The qualitative and quantitative outcome assessments included collecting and analyzing outcome data trends and patterns in the following areas:

A) USE OF FORCE MEASUREMENTS INCLUDING:

M) NUMBER OF CRIMINAL PROSECUTIONS OF OFFICERS FOR ON- OR OFF-DUTY CONDUCT.”

The 52-page Monitor’s report after the listing the mandated “operation requirements” goes into great detail containing detailed data, statistics and bar graphs highlighting what was found by the Federal Monitor auditing team .

The bar graphs and the page of the report where they can be found are as follows:

Use of Force Data, page 5.
APD Self-Reported Use of Force Methods for the years 2014 – 2016, pages 6 to 12.
Applications of force by Area Command (2014-2018), page 13.
Sustained Violations of Use of Force Policies by Year, page 15.
Incidents of Use of Force Policy Violations Noted by APD (2014-2018), page 17.
Overall Use of Force Reporting, 2014-2018, page 21.
Use of Force Violating APD Policy, page 21.
Use of Force by Demographic Category 2014-2018, page 23
APD Self Reporting Use of Force by Modality, 23
Arrest Demographics, 2014-2018, page 24
Use of Force Related Injuries to Civilians 2014-2018, page 26.
Canine Deployments, 2015-2018, page 29.
Bomb Squad Deployments 2014-2018, Reported Bomb Squad Deployments (2014-2018), page 30.
SWAT Deployments per Year, pages 31 and 32.
CIT/COAST Operations (2014-2018), page 35.
Citizens’ Complaints, 2015-2018, page 44.
Distribution of citizens’ complaints by year, page 45.

REPORT ON POLICE RECRUITMENT AND TRAINING

The Federal Monitors Third “Outcomes Measures and Analysis provided a “failure analysis,” designed to identify critical failure points in the training process at the APD academy. According to the report:

“The highest failure rate component was failure of the background investigation. The second highest failure rate was “physical abilities,” accounting for 26 failures among the two recruit classes covered by APD’s data for past reports. Polygraph failure was the third highest ranking failure point. Based on the monitor’s experience and knowledge, the three most frequently noted failure reasons identify issues APD has in common with most modern police agencies.

The number one reason for failing the candidate selection process continued to be failing APD’s background investigation. This is the most common reason for failure industry wide, and is not unique to APD. Based on the monitor’s knowledge and experience, APD experiences the same failure point frequencies as most modern police agencies: background investigations, polygraph, psychological assessment, and drug screening.” Pages 39 and 40.

APD ACADEMY ASSESSMENT

The Monitors Outcomes Measures and Analysis provided in part the following analysis of the APD Academy:

“Our past monitoring reports have been highly critical of the training process, and we agree with APD’s current response to the training “issues” confronting them: identifying the issues with training that have been outlined in previous monitoring reports and developing action plans to address them. APD has reached out and recruited outside leadership at the academy, and the new commander has put in exhaustive work designed to buttress training efforts.

The new training commander has begun reforming the curriculum design process, and, at the same time has designed, developed, and executed a myriad of new training products designed to facilitate moving the APD training effort forward over the coming years. This includes training in 2018 and 2019 on topics such as EPIC (Ethical Policing is Courageous), supervisory processes, newly developed training related to community and problem-oriented policing, managers’ training, reality-based training for supervisors, incident management training for supervisors, and remedial training for in-field officers, as recommended by supervisory and command staff”. Pages 41 and 42.

MONITOR’S SUMMARY AND CONCLUSIONS

The Federal Monitor’s Summary and Conclusions can be found on page 45 of the report and are as follows:

“While some marked progress has been made, as APD’s … data responses stand at the present time, work remains to be done to move the existing system forward to the point that the data can be used reliably to assess “outcomes” of APD’s compliance processes. Needed process revisions include actions already begun in 2018 by the current administration at APD. Our recommendations continue to be the same as those made in our last 298 report in 2018. These include:
1. Continue the processes initiated by the Compliance Bureau to ensure that all policy-related misconduct investigations are identified, assessed for efficacy given the extant fact situations, reported accurately and tracked through to completion, including a review of “actions taken;”
2. Identify critical process flow and outcome points and report them in the same manner and process over time;
3. Ensure that data included in APD reports … continue to be reviewed for accuracy, completeness, timeliness and functionality;
4. Where the monitor has noted discrepancies or concerns, ensure that data collection, analysis and reporting are, in every instance, accurate, clear and understandable;
5. Explain reporting processes in any instance in which they are not clear, i.e., APD should include a “methodology” section in each of the nine individual … topics and for each of the subsections of those nine topics (these elements are explained in the data document, but must be translated to command and supervisory personnel in a clear and tangible manner);
6. Generate semi-annual progress reports in a data-rich format similar to the monitor’s reports that identify systems brought on line to comply with 298 requirements, e.g., policy, training, supervision, and oversight functions;
7. Track results of those (item 7 above) systems’ impacts over time;
8. Ensure that these quarterly reports are data-based, identify specific measurable goals and objectives, and report on progress toward meeting goals and objectives identified in previous systems reports;
10. Implement an internal APD “Red Team” process to vet and assess the APD’s Paragraph 298 process reports to ensure accuracy, timeliness, and veracity before the reports are provided to senior level staff and the monitor;
11. Subject every … process report to a “lessons learned” analysis, and link that analysis to policy, training, supervision and remediation processes;
12. Consider the purpose and function of APD’s … data reporting function, and choose a format and process that matches purpose and function, e.g., a “lessons learned” component with recommendations for improvement in the reporting, review, and analysis of uses of force designed to report more effectively, analyze more carefully, and build internal systems that learn and adapt;
13. As with most data reporting from APD, there is very little analysis of the data by the agency. Data simply tend to be reported without noting trends, issues, problems or solutions. APD should consider developing summative, data-driven responses to issues noted in their aggregate data. We view this as a critical deficiency for all aspects of … reporting [required under the CASA].

We note that the current administration at APD has taken steps toward the goal of becoming a data-driven police agency. … We consider this a first step in a long-term project that will, more likely than not, take years, not months.”

JUSTICE DEPARTMENT HAS ALL BUT ENDED FEDERAL POLICE REFORM

On August 9, 2014, Michael Brown Jr., an 18-year-old African American man, was fatally shot by 28-year-old white Ferguson police officer Darren Wilson in the city of Ferguson, Missouri, a suburb of St. Louis. Decades of frustration over racially biased and unconstitutional policing exploded in the streets as the world watched.
According to an August 9, 2019 Huffington Post investigative report, the months and years that followed, the Obama administration helped draw national attention to the utility of federal investigations into patterns of unconstitutional conduct by police departments. But now the Trump administration has all but abandoned the work of police reform.

To quote the Huffington Post:

“The Justice Department has backed away from its mandate to rein in systemic police abuse and deserted even those police departments that asked the feds for help. The Justice Department’s Civil Rights Division, which is charged with investigating and litigating any unconstitutional “pattern or practice of conduct by law enforcement officers,” virtually halted new investigations.

The Justice Department’s Civil Rights Division, which is charged with investigating and litigating any unconstitutional “pattern or practice of conduct by law enforcement officers,” virtually halted new investigations. Supporters of DOJ-led police reform see an irony in an administration that came into office on a “law and order” platform abandoning its duty to enforce the law against police. The administration’s retreat from systemic police reform is “yet another example of it shirking its duty to the rule of law,” says former Civil Rights Division official Chiraag Bains.”

A Justice Department official told the Huffington Post that the agency “is committed to protecting the civil and constitutional rights of all individuals, and understands the important role the Department plays in helping communities and police departments as they seek to achieve the same goal while fighting violent crime and protecting public safety. … [Attorney General William Bar is committed to holding any officer responsible who violates the law without restraining the ability of good police officers trying to do their part in reducing violent crimes.”

https://www.huffpost.com/entry/ferguson-justice-department-police-reform-trump-pattern-or-practice_n_5d4b18b3e4b0066eb70bad87

ANALYSIS AND COMMENTARY

It is becoming increasingly difficult to believe that the United States Attorney’s Office for the District of New Mexico is still fully committed to the Court Approved Settlement Agreement (CASA) given the DOJ’s abandonment of the police reform cases in the United States. Sooner rather than later, the Department of Justice will start to question the continued need for the CASA entered with the City and APD. Perhaps the litigation is already there with the recent third Federal Monitor’s report on “Outcomes Measures and Analysis.”

To be blunt, the Federal Monitor’s third “Outcomes Measures and Analysis” report is yet another convoluted and technical report that is very difficult to follow and understand by the general public and voters. However, the last sentence in the summary sticks out:

“We consider this a first step in a long-term project that will, more likely than not, take years, not months.”

Make no mistake about it, this last sentence is nothing more than the Federal Monitor beginning to justifying another 4-year, $4 Million-dollar contract.

In November, 2014, the CASA was entered into between the City of Albuquerque, the Albuquerque Police Department (APD), the DOJ and approved by a federal judge.

The CASA provides for termination of the agreement as follows:

“The City will endeavor to reach full and effective compliance with this Agreement within four years of its Effective Date. The Parties agree to jointly ask the Court to terminate this Agreement after this date, provided that the City has been in full and effective compliance with this Agreement for two years. “Full and Effective Compliance” shall be defined to require sustained compliance with all material requirements of this Agreement or sustained and continuing improvement in constitutional policing, as demonstrated pursuant to the Agreement’s outcome measures.” (Page 103 of CASA)

https://www.cabq.gov/mental-health-response-advisory-committee/documents/court-approved-settlement-agreement-final.pdf

After review of the DOJ investigation report, the CASA mandates, and the reforms implemented, a conclusion that can be reached is the spirit and intent of the CASA has been attained and it should be terminated sooner rather than later. However, in the Monitors 9th progress report, the Federal Monitor failed to indicate in any manner how much more time and how much money will be needed to complete the reform process under the CASA.

In November, 2019, it will be a full 5 years has expired since the city entered into the Court Approved Settlement Agreement (CASA) with the Department of Justice (DOJ). For nearly 3 years, the previous Republican City Administration and the former Republican APD command staff did whatever it could to undermine and undercut the implementation of the DOJ mandated reforms. During the last 18 months, there has been a dramatic turnaround with the implementation and progress with the reforms.

From all appearances, and from review of all the Federal Monitor’s last 9 reports, the City and APD have completed the following mandated reforms under the Court Approved Settlement Agreement:

1. After a full year of negotiations, the new “use of force” and “use of deadly force” policies have been written, implemented. All APD sworn have received training on the policies.
2. All sworn have received at least 40 hours crisis management intervention training.
3. APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.
4. The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use of force incidents.
5. Sweeping changes ranging from APD’s SWAT team protocols, to banning chokeholds, to auditing the use of every Taser carried by officers and re writing and implementation in new use of force and deadly force policies have been completed.
6. “Constitutional policing” practices and methods as well as mandatory crisis intervention techniques and de-escalation tactics with the mentally ill have now been implemented at the APD Police Academy with all sworn also having received the training.
7. APD has adopted a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented detailing how use of force cases are investigated.
8. APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.
9. The Repeat Offenders Project, known as ROP, has been abolished.
10. Police Oversight Board has been created, funded, fully staffed and a director has hired been hired and his contract renewed.
11. The Community Policing Counsels have been created in all area command and the counsels meet monthly.
12. The Mental Health Advisory Committee has been implemented.
13. The CASA identified that APD was severely understaffed. The city intends to spend $88 million dollars, 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. APD is projecting that it will have 980 officers by July, 2019 by growing the ranks with both new cadets, lateral hires from other departments, and returning to work APD retirees.
14. The November of 2018 monitors report found APD achieved 99.6% compliance rate with primary tasks, 75.4% secondary compliance and 59.5% operational compliance with APD making significant progress in compliance. In May, 2019, APD achieved a 100% compliance with primary tasks, 79% secondary compliance and 61% operational compliance.

INTENT AND PURPOSE OF CASA HAS BEEN ACHIEVED

The CASA was negotiated to be fully implemented over a four-year period which is achievable given the amount of progress APD has now made. Under the CASA, once APD achieves a 95% compliance rate in all 3 compliance areas, the case can be dismissed. According to the Use of Force Report for the years 2017 and 2018, APD’s “use of force” and “deadly force” is down, which was the primary objective of the CASA reforms. Based on the statics for the 3 compliance areas reported, it would appear that within a year APD and the city should achieve a 95% compliance in the three compliance areas that should allow for a dismissal.

The biggest complaint of all the DOJ consent decrees in the country is that implementation and enforcement “go on and on” for years costing millions in taxpayer dollars and resources to a city that could be better used for essential services. The consent decree in Los Angeles has been going on now for about 16 years.

The delay in full implementation of all the reforms within the 4 years is inexcusable and the result of the previous incompetence of the prior APD command staff and administration. Further, the Federal Court and the Department of Justice contributed to the delay in implementing the reforms by refusing to be aggressive and take action against APD management that engaged in “delay, do little and deflect” tactics as decried by the monitor. The Federal Monitor also did little to assist APD with implementation of the reform’s other that “audit and monitor progress” conveniently proclaiming it was not his job to help APD, that his job was to collect data and information, audit and to report to the court on compliance and to collect his $4.5 million in fees.

All other federal consent decrees of city police departments involve in one form or another the finding of “racial profiling” and the use of excessive force or deadly force against targeted groups or minorities. Consent decrees involving “racial profiling” and racism are far more difficult and complicated to enforce because you cannot “teach” racial equality, eliminate racism in people and it is difficult to identify that a person is a racist when you recruit someone to be a police officer.

The 2013-2014 DOJ investigation of APD “use of force cases” and a finding of a “culture of aggression” within APD dealt with police officers’ interactions and responses to suspects that were mentally ill and that were having psychotic episodes. APD Police Officers were found to have escalated encounters with the mentally ill, even calling SWAT out to deal with the conflicts, such as the 2014 killing of mentally ill and homeless camper James Boyd in the Sandia Foot hills.

The 2014 DOJ investigation found that APD policies, training, and supervision were insufficient to ensure that officers encountering people with mental illness or in distress do so in a manner that respected their rights and in a manner that was safe for all involved. Crisis intervention and dealing with the mentally ill is “teachable” and “trainable.” APD has now trained its police officers to deal with the mentally ill and constitutional policing practices continue to be emphasized at the APD Academy.

APD is making significant progress in becoming fully staffed and returning to “community policing.” The City has also created the Police Oversight Board to deal with citizens’ complaints, the Community Policing Counsels and the Mental Health Advisory Committee.

With the continued implementation of the DOJ reforms, especially those reforms involving the mentally ill, the spirit and intent of the CASA has been realized. A 95% to 100% compliance with all the CASA primary, secondary and operational compliance goals should be achievable no more than 12 months, if not sooner, from now.

The roll of the Federal Monitor should now be reduced as well as the continued costs of the monitoring team reduced. APD and the City should commence negotiations immediately with the Department of Justice (DOJ) for a stipulated “Order of Compliance” from the Federal Court with a dismissal of any and all causes of action the DOJ may have against the city and APD.

Otherwise, taxpayers and the city of Albuquerque will be sucked into “year after year” of expenses and costs associated with a consent decree whose primary objective has been achieved, with the Federal Monitor demanding another $4 million to audit progress on goals that have been essentially achieved or “will be achieved within months, not years” to quote Dr. Ginger.

For related log articles see:

Ninth APD Federal Monitor’s Report Filed; Negotiate Dismissal of CASA

APD Use of Force Report Fails To Report On Crisis Intervention Incidents Involving Mentally Ill

Tracing The Evolution of APD’s “Culture Of Aggression” Ends With A Warning

Kudos To Mayor Keller and APD Chief Geier; APD Goes From “Subverting” DOJ Reforms To “Exceptional Progress”; Police Union Impedes Reforms

On Thursday, August 14, 2019, political blogger Joe Monahan on his blog “New Mexico Politics With Joe Monahan” published his take on the findings of the Governor’s Public Employees Retirement Association Solvency Task Force recommendations. Since being release, the Task Force recommendations have been assailed in social media and by PERA retirees. The Monahan blog article is entitled: “Commentary Corner; Parsing PERA: Raise The Retirement Age And Leave Worker Contributions And Cost Of Living Increases Alone.”

Below is the opinion article with the link to Mr. Monahan’s blog. It is followed by the PERA Solvency Task Force Preliminary Recommendations, an excerpt from a study relating to government pension programs and followed by Commentary and Analysis.

MONAHAN POST

The sky is falling again in Santa Fe. The Governor’s Public Employees Retirement Association Solvency Task Force bought into the argument that the PERA fund is destined to go broke and make homeless thousands of retired state workers. But many of those retirees, fighting the more austere proposals to “shore up” the retirement fund, are pushing back, calling the task force recommendations “fake news.” Among them is retired APD sergeant and PERA watchdog Dan Klein:

The bottom lines: House Speaker Egolf needs to kill ill-advised retirement austerity measures. As for the task force, can they please stop yelling “Boo!”? Save the fake theatrics for Halloween.

E-mail your news and comments to jmonahan@ix.netcom.com

http://joemonahansnewmexico.blogspot.com/

PERA SOLVENCY TASK FORCE PRELIMINARY RECOMMENDATIONS

Following are the PERA Solvency Task Force Preliminary Recommendations as released by the Governor’ s Deputy Chief of Staff Diego Arecon who chairs the Task Force:

“• Fulfill the requirements of Governor Michelle Lujan Grisham’s January Executive Order including placing PERA on a path to pay off its $6 billion unfunded liability by the year 2043.
• Provide for sustainable, “profit sharing” Cost of Living Adjustments for current and future PERA retirees based on investment returns and funded ratio.
• Guarantee a minimum COLA of 0.5% and a maximum COLA of 3% based on investment returns/funded ratio. Once PERA achieves full funding of 100% the maximum COLA increases to 5%.
• Begin to address disparity in funding levels among PERA Divisions by exempting State Police and Adult Correctional Officers from proposed contribution increases.
• Protect lower income employees and retirees by exempting employees making less than $25,000 from proposed contribution increases and providing a 2.5% COLA to retirees with pensions of less than $25,000 and 25 years of service to include disability retirees.
• Result in an immediate $700 million reduction in PERA’s unfunded liability.
• Replace prior PERA proposals to freeze COLAs for 3 years with a 2%, simple COLA, pausing only the compounding factor, to be paid annually for the next 3 fiscal years. Simple COLAs will be paid for by a one-time appropriation of $76 million. PERA will administer a 13th check to retirees annually for 3 consecutive years.
• Provide incentives for employees to continue working by removing the cap on earning service credit.
• Eliminate the current 7 year wait to receive a COLA upon retirement and restore it with the 2-year calendar period.”

UNDERFUNDED PERA PENSION PLANS IDENTIFIED

On April 27, 2017 a presentation was made to the PERA governing board on the current status of asset valuations and projected liabilities. The report includes 23 pie charts and graphs that effectively reveals the current and projected status of all the pension plans PERA administers and pending shortfalls.

The pie charts disclose what will be paid into the pension programs by government employers and employees, income from investments and what will be paid out in benefits from 2016 to 2046 with one chart projecting to 2066.

The link to the April 27, 2017 PERA presentation with all the graphs and pie charts is here:

http://www.nmpera.org/assets/uploads/home-banner/april-2017-board-meeting-public-packet.pdf

A few of the pie charts and graphs in the presentation are worth highlighting:

The pie chart on page 7 reflects that on June 30, 2016 Actuarial Accrued Liability for PERA is $19,474,241,000.

The pie chart on page 12 reflects the present Value of Benefits as $21,951,183,972 managed by PERA and invested with a funding ratio of Assets to Accrued Liability of 75.3%. The goal is to have a 100% funded liability by 2046.

The graph on page 19 reflects the assets to pay expected benefits and Market Value of PERA Market Value with no contributions to have a Zero return in 2026.

The graph on page 18 provides projections PERA expected total benefit payments including current employees, future members and retirees.

Significant funding shortfalls are reported on page 24 as being 7.99% of State General pensions and 13.87% for Municipal Fire Pension programs. The graph on page 25 reflects contribution shortfalls of State General and Municipal Fire up and until 2066.

According to the report the municipal fire department pension plans have the most serious problem of under-funding of almost twice that of the State General Pensions.

The number of fire department retirees and law enforcement retirees combined is only a small fraction of the largest majority of State General pension retirees.

NEED FOR 100% SOLVENCY QUESTIONED

A very common and major point of criticism of the Task Force recommendations and PERA management is the fact that it is only recently that the PERA pension fixes of 2013 have not worked and that PERA must be 100% funded as to future projected liabilities. As was pointed out by Dan Klein in the Monahan article:

PERA was only 70% solvent during the 2007 fiscal collapse and we survived it just fine. The proposal to make the fund 100% solvent in 25 years is unnecessary. How do we know this? Because pension experts have studied the issue and told us. This report, The Sustainability of State and Local Government Pensions, by Lenny (bank of England), Lutz (Federal Reserve Board of Governors) and Sheiner (Brookings institute) destroys the PERA argument that the sky is falling and we must be 100% solvent.

The link to the full 70-page July 14, 2019 white paper analysis entitled “The Sustainability of State and Local Government Pensions: A Public Finance Approach” written by Jamie Lenney, Bank of England, Byron Lutz is here:

https://www.brookings.edu/wp-content/uploads/2019/07/lenney_lutz_sheiner_MFC_Final.pdf

The study explored the fiscal sustainability of U.S. state and local government pensions plans. The study examined if under current benefit and funding policies state and local pension plans will ever become insolvent, and, if so, when. The results of the study suggest that, under low or moderate asset return assumptions, pension debt can be stabilized as a share of the economy with relatively moderate fiscal adjustments. The study concluded there is no imminent crisis.

Portions of the introduction of “The Sustainability of State and Local Government Pensions” are worth noting in that that it summarize the very technical economic analysis:

State and local government pension plans are immensely important economic institutions in the United States. They hold nearly $4 trillion in assets; their annual benefit payments to retirees are equal to a bit more than 1½ percent of national GDP; over 10 million beneficiaries rely on these payments to sustain themselves in retirement.

Overall, our results suggest there is no imminent “crisis” for most pension plans.”

After the introduction, the study goes on to discuss in very great detail the varying mythologies and mathematical formulas to analyze long tern sustainability of government pension programs.

DINELLI COMMENTARY AND ANALYSIS

After drinking 40 cups of coffee to stay awake to read the “The Sustainability of State and Local Government Pensions”, the biggest take away is that there is no imminent “crisis” for most pension plans and they have operated in the red for decades and are sustained by the constant cash flow of employer and employee contributions, investment returns and cash infusions. “Unfunded liability” which is what all the fuss is about, represents the difference between assets on hand and future retirement benefits owed. The operative word is “future” and 23 and 40 year economic projections are always highly speculative when dealing with the volatility of the markets and returns on investments.

PERA’S goal is to reach 100% funding of liabilities by 2043. The New Mexico PERA pension program has 75.3% of funded liability in current funding assets to future liability making it one of the strongest pension programs in the country. The two major pension funds that are currently problematic are shortfalls of 7.99% of State General pensions and 13.87% for Municipal Fire Pension programs. Contribution shortfalls of State General and Municipal Fire are up and until 2066. PERA management has failed to articulate in clear terms all the options available to insure PERA will reach a 100% funding ratio by 2043.

Notwithstanding, PERA Pension reform must again be undertaken. The difference is the New Mexico Legislature has time to address the PERA pension system and the sky is not falling as Joe Monahan puts it. The legislature can make adjustments like increasing age of retirements, change the formula to calculate retirement, make increases in contributions and infuse state funding into the pension funds, but only those that are underfunded which currently the municipal fire fighters fund and the general worker fund. Better management of the pension funds and increasing returns on investment are always relied upon to pay for benefits. At a minimum, the PERA Pension plans are solvent for at least 23, if not more years.

The financial problems PERA is experiencing can be directly related to the type of pensions offered to government employees as well as what many PERA retirees feel has been mismanagement of the pension funds. Governor Michelle Lujan Grisham no doubt knows that the Task Force recommendations antagonize upwards of 90,000 government employees.

Each time PERA reform includes the elimination of Cost of Living Adjustments (COLA) as a way of making the PERA fund 100% solvent, the entire city, county and state government workforce becomes alienated. Advocating the elimination of COLA adjustments will have serious political consequences simply because retirees vote. Hitting people in the pocket books who live on fixed income is one way to guarantee hostility at election time.

Last year, candidate for Governor Michelle Lujan Grisham said she would oppose cuts to benefits, including any reduction in the annual inflation-related pension adjustments that retired state workers and teachers receive. According to a campaign spokesperson at the time:

“She does not believe that New Mexico needs to eliminate our defined benefit system for current or future educators and state employees and opposes any reduction in cost-of-living adjustments.”

The PERA Task Force Recommendations are in total opposition and conflict sharply with the Governor’s position when she was running for Governor. This fact is surprising seeing as she appointed the Task Force. The Chair of the Task Force is her Deputy Chief of Staff who should have known better than to release the recommendations without more thought, more detailed analysis with findings and justifications on each one of the recommendations. What is very troubling is the Task Force itself was top heavy with public safety stake holders and union officials who have absolutely no background or experience in economics, finance and pension plans.

Joe Monhan’s suggested fixes need to be taken seriously. Revenues from the oil and gas boom could in all likely reduce the $6.1 unfunded liability within a 5 to 10-year span. Such infusions of funding would no doubt benefit no less than 90,000 PERA workers not to mention their family’s over many more years. While the State is experiencing a windfall in increased revenues, the New Mexico Legislature should use a portion, not all, of the surplus revenues to increase funding to the PERA funds that are currently underfunded, currently the municipal fire and general worker funds to the tune of $4.1 Billion.

Another option that should be seriously considered is restructuring pensions along the lines of increasing the age of retirement and increasing the number of mandatory years of work before retirement. The PERA pensions plan and age of retirement could be designed to coincide with the Federal Social Security program and take into account a person age befor being able to retire and a 35-year government service history of a person’s pay. Pensions can be based on the full employment history average as opposed to paying a pension on a person’s high 3 years of pay.

The New Mexico Legislature needs to consider pension reform during a special session where a solution can be hammered out without the distractions of a general session. The New Mexico legislature should consider pension reform in the form of including “defined contribution plans” in one form or another to be offered to future government employees, increasing employer and employee contribution plans under the defined benefit plans and modifying the multipliers and increasing years of service or age before retirement.

The first thing that should be done is for the legislature to set aside the recommendations of the PERA Pension Fund Task Force. What are needed are outside experts in finance and pension funds to make recommendations to the legislature on what can and should be done to save PERA, presuming it really does need saving. The Governor should form a working group of actual experts and go from there to find real solutions.

For related www.petedinelli.com blog articles on PERA see:

Dan Klein: Governor’s PERA Task Force Chairman Promotes Public Safety Unions Agenda And Own Agenda; Also: Task Force Recommendations And Underfunded Plans Identified

Governor’s PERA Solvency Task Force “Pokes The Bear”; Dissolve Task Force And Form Working Group

PERA Pension Plan Investments Continue To Falter; Gov.’s PERA Solvency Task Force Top Heavy With Public Safety Reps