On January 8, during a press conference held in the city of Las Cruces, New Mexico Governor Michelle Lujan Grisham called upon state lawmakers to pass a “red flag law” during the 2020 legislative session that begins on January 21. The “red flag” legislation is being co-sponsored by State Representatives Daymon Ely, D-Corrales, Joy Garratt, D-Albuquerque and State Senator Joseph Cervantes, D-Las Cruces.

During the January 8 press conference held in Las Cruces at the Doña Ana County Sheriff’s office, the Governor was flanked by Doña Ana County Sheriff Kim Steward, Representative Daymon Ely and Senator Joseph Cervantes, D-Las Cruces. Both Ely and Cervantes have supported gun control legislation in past.

During the press conference Gov. Lujan Grisham said a young cousin of hers suffering from mental illness committed suicide with a gun in 2012, and she had this to say:

“That is a horrific tragedy that plays out in so many families across America. And we cannot afford to lose one more nephew, one more first cousin, one more son, one more daughter, one more mother, one father, one more brother, one more sister [to suicide] … This is a temporary removal of a firearm from an individual who poses an extreme risk or threat to themselves or others.”

Senator Cervantes said the mass shooting at a Walmart in nearby El Paso in August showed the clear need for a red flag law and commented:

“The tragedy of the Walmart shooting is even more deplorable because the shooter, the killer, the murderer published a manifesto before the shooting online, announced his intentions, specifically to target Mexicans, said he wanted to assure Hispanics did not have the voting voice in this county. … Yet with that warning, with that manifesto published and known, no action was taken.”

State Representative Ely noted that in New Mexico, suicides make up 70% of all firearm deaths and the state’s suicide rate is at least 50% higher than the national rate. During the press conference, Ely had this to say:

“I’m confident that we are going to get this bill out of the house and out of the senate and to the governor’s office. We can no longer turn a blind eye to what’s happening with guns in our community”.

PROPOSED LEGISLATION

The legislation was pre -filed on January 8 ahead of the 2020 Legislative session. Under the proposed law a law enforcement officer or family member requesting an extreme-risk protection order would provide a sworn affidavit explaining in detail the facts and circumstance as to why the order is needed against a person. A judge could then issue a 15-day emergency order to seize the weapons and ammunition from that person and would schedule a hearing to determine if there was a need for a one-year order. When the court order expires, the guns and ammunition would then be returned to the individual.

According Representative Ely:

“This bill is a good balance between people’s rights to bear arms and public safety … It protects the public. It protects people who might be an imminent threat of suicide, and it protects law enforcement. That’s what this bill does.”

According to Governor Lujan Grisham the bill assures due process for gun owners by saying:

“You have to have a sworn affidavit, you’re under oath so there are real repercussions for someone who might use this in a negative way because that’s not the intent here at all.”

Zac Fort, the President of the New Mexico Shooting Sports Association said his organization opposed the red-flag law saying previous versions of the bill failed to protect the rights of gun owners. You can also anticipate the the National Rifle Association (NRA) will oppose the legislation in some manner.

https://www.abqjournal.com/1407846/governor-asking-lawmakers-to-approve-red-flag-law.html

Sheriffs across New Mexico announced they are opposed to the “red flag” law. Sierra County Sheriff Glenn Hamilton says the New Mexico Sheriffs’ Association wants to ensure gun owners keep their due process protections.

https://www.kob.com/new-mexico-news/sheriffs-oppose-red-flag-gun-legislation-in-new-mexico/5603938/?cat=500

RED FLAG LAWS EXPLAINED

A “red flag law” is a gun control law that permits police, family members or third parties to petition a state court to order the temporary removal of firearms from a gun owner or a person in possession of a gun who may present a danger to themselves or others. The action is civil in nature and it is not a criminal action nor a civil commitment proceeding to determine mental competency. Red flag law court orders are also referred to as Extreme Risk Protection Orders (ERPOs). Red Flag laws as well as Universal Background Checks and closing the “gun show loophole” have become popular gun policy proposals raised in the aftermath of mass shootings like those in Sandy Hook, Parkland, El Paso and Dayton.

Usually under “red flag laws”, if a judge after an evidentiary hearing finds that person is dangerous to himself or others, that person must surrender all firearms within their possession or control to the police for a specified period of time. During that period of time, the person is also not allowed to buy or sell guns. Further, it is a temporary order, very much like a temporary restraining order, it does not permanently keep guns away from individuals who might cause significant risk. Such court orders are only as good as the enforcement behind it by law enforcement.

The biggest criticisms against “red flag” laws are that they violate a person’s US Constitution Second amendment rights to bear arms. Another major criticism is that a person’s constitutional right of due process of law is violated when a court can issue a temporary “ex parte” order to seize guns from people without an evidentiary hearing and without any notice. (NOTE: An “ex parte” order is a court order granted against a person not present at the hearing and at the request of and for the benefit of another party.)

If lawmakers pass the law, New Mexico would join 17 other states and the District of Columbia with “extreme risk protection orders.” Those states that have enacted “red flag” laws are: California, Colorado, Connecticut, Delaware, Hawaii, Florida, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Washington.

https://gunsandamerica.org/story/19/08/05/what-is-a-red-flag-law/

NEW MEXICO’S TWO OTHER GUN CONTROL MEASURES

Enactment of a “Red Flag” law would be a natural extension or a continuation of the work of the 2019 New Mexico legislature. Two major gun control measures were enacted by the 2019 New Mexico Legislature, one requiring back ground checks on private sales of guns and the other requiring domestic violence abusers to surrender firearms.

On March 8, 2019, Governor Michelle Lujan Grisham signed into law Senate Bill 8 (SB-8) enacted by the 2019 Legislature which requires background checks for guns sold privately and at gun shows. Debate on the legislation was hot and heavy, but SB 8 passed the Senate on a 22-20 vote and passed the House 42-27 vote. The Governor signed the legislation and it became law effective July 1, 2019.

The 2019 New Mexico Legislature passed Senate Bill 328 which prohibits gun possession by someone who’s subject to an order of protection under the Family Violence Protection Act. The bill was jointly sponsored by Democratic Senators Joseph Cervantes of Las Cruces and Antoinette Sedillo Lopez of Albuquerque and Democratic Representative Deborah Armstrong of Albuquerque. Under the enacted legislation domestic abusers must surrender their firearms to law enforcement. The gun possession prohibition also applies to people convicted of other crimes such as battery on a household member.

UNITED STATES HISTORY OF MASS SHOOTINGS

Since 1995, the United States has had 95 mass shootings, including seven of the 11 deadliest. Three of the 11 biggest mass shootings in American history have now taken place in the United States during the last two years.

There is no doubt we have a deadly mass shooting epidemic on our hands.

The mass shooting with guns in the last 10 years include: Orlando, Florida (49 killed, 50 injured), Blacksburg, Va. (32 killed), San Ysidro, Cal (21 killed), San Bernardino, (14 killed), Edmond Oklahoma (14 killed), Fort Hood (13 killed), Binghamton, NY (13 killed) Washington, DC (12 killed), Aurora, Colorado (12 killed), Sandy Hook Elementary School, Newtown, Conn (21 children and 6 adult staff members killed) and the largest mass shooting in this country’s history that occurred in Las Vegas, Nevada with at least 59 dead and at least 515 wounded and the Parkland/Stoneridge High School shooting that resulted in 17 children’s deaths. Since 1995, the United States has had 98 mass shootings, including seven of the 11 deadliest. Three of the 11 biggest mass shootings in American history have now taken place in the United States in the last two years. . There is no doubt we have a deadly mass shooting epidemic on our hands.

NM AND ABQ VIOLENT CRIME STATISTICS REFLECT EPIDEMIC

It has been reported that 400 New Mexicans get killed every year to gun violence. On Monday, September 24, 2018 the FBI released its “Crime in the United States” report providing the statistics on all the crimes reportedly committed in New Mexico and Albuquerque and in 2017.

https://www.abqjournal.com/1224917/fbi-abq-crime-rate-up-in-2017.html

Since 2010, violent felony crime rates and property crime rates have steadily increased in Albuquerque and in New Mexico statewide. According to the FBI report, the increase in crime in both New Mexico and Albuquerque continued in 2017. Statewide, New Mexico violent crime rates rose by 12 percent and property crime rates were up by 0.5 percent in 2017. The FBI reported that New Mexico had 16,359 violent crimes reported and 82,306 property crimes reported in 2017.

All the statistics for New Mexico and Albuquerque are in sharp contrast with national trends that crime is going down in the United States as a whole. According to the FBI report summary, in 2015 and 2016, violent crime had been increasing across the United States but in 2017, violent crime decreased 0.2% with the overall rate falling 0.9% percent.
In the United States as a whole, the property crime rates dropped for the 15th straight year, decreasing by 3% across the country. Nationally, the crime rate is 383 violent offenses per 100,000 residents and 2,362 property crimes per 100,000 residents.

Albuquerque’s violent crime and property crime rates are more than triple the national crime rates. On January 10, 2019, it was reported New Mexico is number one 1 In fatal police shootings. According to the Fatal Force database created by The Washington Post:

“For the fourth year in a row, New Mexico placed either first or second in the nation for its rate of deadly shootings by law enforcement officers”
In 2018, New Mexico ranked first in the nation, finishing the year with 20 fatal shootings by police officers around the state, a rate of 9.59 per 1 million people. Alaska had 7 total fatal police shootings was a close second, with a rate of 9.5 fatal police shootings per 1 million people. Connecticut had the smallest number of fatal police shootings with 0 reported.
In 2017, the state came in as No. 2, behind Alaska, but it was first in the nation in 2016. In 2015 New Mexico was in second place, behind Wyoming.”

https://www.abqjournal.com/1266910/nm-ranks-no-1-for-fatal-police-shootings.html

On December 18, 2019, US Attorney General William Barr announced that the Department of Justice (DOJ) is initiating a major crackdown aimed at driving down violent crime in 7 of the nation’s most violent cities in the country. Not at all surprising is that Albuquerque is one of those cities. The other 6 cities are Detroit, Baltimore, Cleveland, Kansas City, Memphis and Milwaukee. All 7 cities have violent crime rates significantly higher and above the national average.

According to Attorney General William Bar, Albuquerque has a violent crime rate that is 3.7 times the national average per capita , and the cities aggravated assaults are 4 times the national average per capita. Albuquerque’s FBI Uniform Crime statistics for the years 2008 to 2018 reveal just how bad violent crime has increased in Albuquerque over the last 10 years. Violent crimes include murder, rape, robbery and aggravated assaults and have all increased. The hard numbers for the last 10 years reflect that crime has not declined much and that like a waive on a beach, it had “ebbed and flowed” over the years but have risen none the less to all-time highs.

https://www.petedinelli.com/2019/12/19/doj-operation-relentless-pursuit-includes-albuquerque-city-needs-to-ask-ag-barr-and-doj-to-dismiss-casa/

On December 31,2019 the Albuquerque Police Department (APD) officially recorded the 82 homicide for the city, an all-time record. On January 1, 2020, APD reported the first homicide of the year. It was on December 9, 2019, the city recorded its 74th homicide breaking the previous record of 72 murders set in 2017. Before 2017, the last time the City had the highest number of homicides in one year was in 1996 with 70 murders that year. In addition to the 82 homicides in 2019, APD Homicide detectives are also working on a back log of active cases from previous years.

DOMESTIC TERRORISM SUMMIT

On August 6, 2019 Democratic Governor Michelle Lujan Grisham announced a “Domestic Terrorism Summit”. She invited top state law enforcement officials and legislative leaders from both political parties. The call for the summit was in reaction to the August 3 mass shooting in El Paso, Texas that killed 22. The goal of the summit was to come up with precautions against domestic terrorism. By all news report accounts, the summit was a success.

After the summit, major proposals were announced including:

1. Increase hate crime penalties. The criminal penalty for those convicted of hate crimes would be increased. Currently, if a criminal defendant is proved to be motivated by the victim’s race, religion, age, gender or sexual orientation, the jail sentence can be enhanced by one year.

2. Expand the State’s mental health system. This has been a major priority of the Governor given her longstanding positions on mental health over the years.

3. Create a new anti-terrorism law enforcement unit. This no doubt will be the responsibility of the Department of Homeland security to implement and coordinate state wide law enforcement efforts.

4. Improve data-sharing about potential threats. The state Homeland Security and Emergency Management Department will start enrolling all 33 county sheriffs in a data-sharing program so that individuals deemed a potential risk can be flagged and monitored.

5. Extending background checks on private gun sales to sellers of firearms.

ANALYSIS AND COMMENTARY

It should come as no surprise to anyone that Governor Michelle Lujan is call upon the 2020 New Mexico Legislator which starts on January 21, 2020 to enact a “red flag” law. Throughout all her years as a congresswoman for the First Congressional District, Michelle Lujan Grisham was a strong advocate for gun control measures on the federal level and she continues to do so as Governor on the state level. Governor Michelle Lujan Grisham knows full well New Mexico needs to enact reasonable and responsible gun control measures and that a “red flag law” is just one step in the right direction.

STEEP CLIMB FOR RED FLAG LAW

During the 2019 session, a red flag bill sponsored by Democratic Representative Damon Ely past the house but failed in the Senate. The bill was one of the more controversial bills causing New Mexico Sheriffs around the state to lobby heavily against it. After the 2019 session, the Governor signaled that she would place another “red flag” law on the 2020 call. You can now expect the same opposition from law enforcement during the upcoming session unless she acts to get their support.

Elected County Sheriffs repeatedly spoke out against the gun legislation during legislative committee hearings. Some elected sheriffs testified that they simply would not enforce the legislation if it became law. Twenty-eight of New Mexico’s counties as well as a few municipalities in the state have passed “Second Amendment Sanctuary” ordinances in defiance to the enacted legislative gun control measures. Things got so bad that Attorney General Hector Balderas sent a strongly worded letter to all the elected Sheriff’s reminding them of their legal obligation to enforce the laws regardless of whether they agree with the legislation. The Attorney General wrote the sheriffs saying:

“As law enforcement officials we do not have the freedom to pick and choose which state laws we enforce. … In short, the taxpayers of your city or county assume the financial risk of your decision to impose your personal views over the law. … [Discretion] cannot subvert the rule of law. All New Mexicans, including public [law enforcement] officials, are equally subject to the law.”

https://www.petedinelli.com/2019/04/08/i-will-not-enforce-the-law-admission-of-negligence-by-law-enforcement/

Lujan Grisham has said a “red flag” law will make communities safer and for that reason she has attempted to work with the Sheriff’s to reach a compromise, but has been unable to win support for a “red flag” law thus far from the Sheriffs. The New Mexico Sheriffs Association opposes “red flag” laws believing they are ineffective and that they infringe on Second Amendment constitutional rights to bear arms.

Sheriffs are elected officials just like the Governor, and as such the Governor has little control over how they should approach law enforcement. For that reason alone, the Governor needs to do whatever she can to convince all New Mexico Sheriff’s to support the law. Also, Attorney General Hector Balderas should lend his weight and prestige of his office to get the law enacted.

Included in the discussions with the elected Sheriff’s should be an offer of state funding to support the enforcement of the law. The Governor needs to ensure that there are sufficient votes in both the House and Senate to enact the legislation even before the session begins, otherwise it may be a lesson in futility.

COMPREHENSIVE DOMESTIC TERRORISM AND GUN VIOLENCE ACT

The New Mexico Legislature needs to enact a Comprehensive Domestic Terrorism and Gun Violence Act. Such legislation needs to include:

1. A Ban in New Mexico the manufacture, sale and distribution to the general public of semi-automatic firearms, AR-15 style rifles, assault weapons, semi-automatic pistols, semi-automatic shotguns and weapons to the general public in New Mexico.

2. Prohibit in New Mexico the sale of “ghost guns” parts. Ghost guns are guns that are manufactured and sold in parts without any serial numbers to be assembled by the purchaser and that can be sold to anyone.

3. Require in New Mexico the mandatory purchase of “liability insurance” with each gun sold as is required for all operable vehicles bought and driven in New Mexico.

4. Expand restrictions on firearm possession by or transfer to a person subject to a domestic violence protection order or a person convicted of a domestic violence misdemeanor.

9. Allocate funding to the school systems and higher education institutions to “harden” their facilities with more security doors, security windows, and security measures and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers.

10 . Introduce a Constitutional Amendment repealing the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote. There is no doubt such action would generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby, but it’s a discussion that should be made.

CONCLUSION

The two major gun control measures enacted by the 2019 New Mexico Legislature, one requiring back ground checks on private sales of guns and the other requiring domestic violence abusers to surrender firearms, were a good start to addressing New Mexico’s gun culture. The enactment of a “red flag” law will be another small step in the right direction. Far more needs to be done by the New Mexico legislature to combat gun violence and to keep the public safe.

Unless congress acts, we can expect more mass shootings at soft targets such as schools, movie theaters, malls, department stores and major public events like concerts and at state fairs. The mass shootings will again be followed by the predictable cycle of news coverage, more outrage, more nighttime candle vigils, more funerals, more condolences, more rhetoric demanding action. It could easily happen in New Mexico

New Mexico Governor Michelle Lujan Grisham and the New Mexico State Legislature are wise to do all they can and enact as many state laws to prevent gun violence in the State as they can.

For a related blog articles see:

Gun Sale Background Checks And Requiring Domestic Abusers To Surrender Firearms Responsible Gun Control

Governor’s Domestic Terrorism Summit Called “Road Map” For 2020 Legislative Session; More Proposals; It Could Happen Here

On January 21, 2020, the 30 day New Mexico legislative session begins. The 30-day session is referred to as the “short session” which are held in even number years while 60-day sessions occur in odd number years. State lawmakers have already pre-filed nearly 90 bills ahead of the upcoming legislative session, but what actually gets put on the agenda is totally up to Governor Michelle Lujan Grisham. The governor has made it known that she wants marijuana legalized at this year’s session, which begins January 21.

On January 1, 2020, the State of Illinois became the latest state to legalize recreational cannabis. The recreational use of cannabis is now legalized in 11 states: Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington, the District of Columbia. During the 2020 legislative session that begins on January 21, 2020, the New Mexico Legislature will likely attempt to make New Mexico the latest state to legalize recreational marijuana.

On January 1, 2020, New Mexico State Representative Javier Martinez, (D)-Albuquerque, made it known he is pre-filing a new bill to legalize cannabis. Representative Martinez served on the task force created by Gov. Michele Lujan Grisham the worked-on recommendation to legalize marijuana here in New Mexico. The group was made up of law enforcement, medical professionals and politicians and met several times throughout the state to discuss ideas and come up with recommendations to the governor.

According to Representative Martinez:

“I can’t wait for New Mexico to be next in line and be a leader in the country. … The country is following that lead, and New Mexico certainly wants to be among the first to legalization. … Not only to legalize but do it in the right way. One of the things I learned from the process is the openness and willingness of people across the state to look at recreational cannabis with an open mind. … There is going to be a very tight regulatory framework around the industry to ensure not only public safety, but quality for customers”.

Taking recommendations from the Governor’s Task force group into consideration, Martinez is pre-filing a new bill in the coming days to legalize cannabis. He said under the new legislation, recreational cannabis would be a private industry, regulated similar to the way the state does liquor stores. Martinez said his legislation will divert funding from cannabis sales to law enforcement programs statewide to help fight the war on drugs.

Martinez added that in order to protect the existing medical cannabis program, the gross receipts sales tax would be eliminated on any medical cannabis product to cut costs. He also suggested subsidies would be created for low-income patients.

A bill was passed in the House last year, but it never made through the Representative Martinez expressed high hopes that during the 2020 legislative session his colleagues in the House and Senate will be more accepting of the idea.

https://www.krqe.com/news/new-mexico/state-lawmakers-discuss-new-bill-to-legalize-marijuana/

2019 LEGISLATIVE EFFORTS THAT FAILED

On March 7, 2019 the state House passed House Bill 356 (HB 356) with a two-vote majority of 36 to 34 that would have legalized the recreational use of marijuana. HB 356 bill included a provision for state run and regulated stores. 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. Every Republican Representative in the House voted against HB 356 joining 10 Democrats in opposition to it. The bipartisan proposal to allow cannabis sales at state-run shops narrowly cleared the state House but failed to make it through the Senate. After the Legislature adjourned on March 21, 2019, Governor Michelle Lujan Grisham announced she would add the issue of legalizing recreational marijuana use to the 2020 legislative agenda.

TASK FORCE RECOMMENDATIONS

On June 28, 2019, Governor Michelle Lujan Grisham announced the creation of a “Cannabis Legalization Working Group.” The task force consisted of 19 members including the Democratic and Republican legislators who sponsored the unsuccessful legislation and included representatives of a labor unions, sheriff’s department, health care business, Native American tribes, medical cannabis businesses, a county government association, and commercial bank and hospital company.
On August 15, 2019, the Governor’s Cannabis Legalization Working Group was told by a consultant 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. It was 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. It was 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.

https://www.petedinelli.com/2019/08/20/legalizing-recreational-pot-will-be-economic-boost-to-new-mexico/

On September 10, 2019, the Governor’s task force endorsed and recommended a traditional licensing system for private companies that would grow and sell marijuana. The state would not operate retail stores. The licensing system is the same system as used for the State’s medical cannabis program. The proposal is a complete shift from the legislation that advanced through the state House last session where Democratic lawmakers embraced the idea of state-run cannabis stores as a part of a compromise with Republicans.

https://www.abqjournal.com/1364425/pot-task-force-recommends-licensing-system.html?fbclid=IwAR1Fc82VYfGAAw014_cRb2aqpeMbuXtmagRB5-bzszosfooTTUpWvSy00y8

According to Governor Lujan Grisham, a recent poll showed 76% of New Mexicans are in favor of recreational marijuana. However, the poll does not mean lawmakers will be able to agree on a plan that best benefits New Mexico. In interviews, the Governor has acknowledged that winning approval of the marijuana legalization plan will be difficult. She believes the Senate will be the biggest hurdle and she had this to say:

“I think cannabis [recreational legalization] is going to be really hard [and] it should be. That is not something to run into without being really clear. … If I have it on the call, I’m serious about getting it passed”

https://www.abqjournal.com/1402676/governor-finishing-legislative-agenda.html

https://www.koat.com/article/will-recreational-pot-be-legal-in-new-mexico-in-2020/30301730

COMMENTARY AND ANALYSIS

New Mexico has some of the highest DWI rates in the country and ranks #1 in heroin overdose deaths with the state having a serious opioid crisis. Legalizing recreational marijuana has the danger of contributing to the State’s high alcohol and drug addiction rates, a legacy no Governor wants to be remembered for after they leave office. Notwithstanding, a recent poll shows 76% of New Mexicans are in favor of legalizing recreational marijuana. Further, any recreational cannabis needs to ensure that the states highly successful medical marijuana program is not placed in jeopardy.

When it comes to the legalization of the recreational use of cannabis, Representative Javier Martinez and the legislature would be wise to avoid a traditional licensing system like it created for full-service alcohol licenses. With present alcohol full-service licenses, the number of licenses is capped and based on population numbers. Liquor licenses are now being sold for upwards of $1.5 million. The result is that only the wealthy or major restaurant chains and corporations can only afford the licenses.

The result and unintended consequence will be identical with recreational cannabis licenses purchased for a few thousand dollars from the state and held onto as an investment and for a windfall profit. The exact same thing will happen with recreational marijuana licenses unless the licenses are not tied to population.

There should be no limit on the number of recreational pot licenses that will create a market of licenses that increase value and are considered an investment by the private sector as opposed to regulation by the state to protect the public health safety and welfare. Let free market of supply and demand dictate the number of licenses needed. Those with good business models will prevail.

https://www.petedinelli.com/2019/10/01/do-not-place-population-cap-on-the-number-of-recreational-marijuana-licenses/

On January 21, 2020, the 30-day New Mexico legislative session begins. The 30-day session is referred to as the “short session” which are held in even number years while 60-day sessions occur in odd number years. Thirty-day sessions are limited to budgetary matters and issues approved for consideration and placed on what is referred to as the Governor’s call. Revenue bills, such as taxation, may also be considered during 30-day sessions.

$7.68 Billion DOLLAR BUDGET PROPOSED

On January 6, 2020, Governor Michelle Lujan Grisham released her proposed executive budget to be considered during the 2020 New Mexico Legislative session. The proposed budget is a $7.68 billion dollar budget reflecting a 8.4% increase with a 25% General Fund reserve set aside in case projected revenue levels do not materialize. Under the proposed budget, spending will again rise for the second consecutive year. If adopted by the legislature state spending will increase by $596.3 million, the 8.4% increase over the current fiscal year that ends June 30, 2020. Under the Governor’s budget, money is also being set aside in cash reserves in case projected revenue levels do not materialize.

https://www.kob.com/new-mexico-news/gov-lujan-grisham-releases-latest-budget-proposal/5599544/?cat=500

https://www.abqjournal.com/1407078/gov-lujan-grisham-unveils-7-7-billion-spending-plan.html

The Governor’s increase in spending comes after several cash-lean years resulting in downsizing of government, at least a 15% reduction in state personnel and the slashing of state budgets to allow the previous Republican Administration to avoid any and all tax increases even if it affected essential services. The increase in budget is being fueled in large part by record-breaking oil production in the state’s southeast corner and the premium basin. Oil production has driven state revenue levels to an all-time high. Oil production royalty revenues has generated an estimated $797 million in “new” money for the coming fiscal budget year that begins July 1, 2020.

In a statement announcing her Executive Budget, Governor Lujan Grisham had this to say:

“This budget consists of both bold investments and prudent decisions that continue to fix what was left broken, addressing urgent needs and strategically investing in sustainable improvements over the long term – all at once. … We are investing for tomorrow and delivering today. … We are making bold investments and prudent decisions about sustainability all at once. … We are ensuring the growth we undertake is shielded from the outside economic forces that could, in the future, threaten our bottom line. … We recognize great opportunity necessitates both aggressive strategic action and fiscal responsibility.”

EDUCATION FUNDING MAJOR PRIORITY, AGAIN

New Mexico’s children continue to be the number 1 priority for the Governor in her Executive Budget for the 2020 session. Nearly half of the state spending increase proposed by the first-term Democratic governor for the budget year that starts July 1 would go toward education programs, from early childhood through higher education. The proposed budget contains an expansion of what has been labeled the “education moonshot” to cover education from cradle to career, with more than 47% of all new recurring spending going toward education, from early childhood to higher education priorities.

During last year’s 2019 legislative session, the legislature approved a whopping $3.2 Billion public education budget, a 16% increase over the previous year’s budget, out of the total state budget of $7 Billion. Included in the budget was a $500 million of additional funding for K-12 education. The 2020 Executive Budget expands the Public Schools budget by $200.3 million for a total General Fund recurring budget of approximately $3.4 billion in addition to a total of $42 million in one-time General Fund investments.

The proposed budget is close to $7.7 billion and includes a proposed 4% salary increase for New Mexico teachers and more money for school districts with a large number of “at risk” students. The state education system is still dealing with the Santa Fe District Court ruling that the state of New Mexico is violating the constitutional rights of at-risk students by failing to provide them with a sufficient education. The Judge found that it was clear that many New Mexico students are not receiving the basic education in reading, writing and math they should be receiving in our public-school system.

The proposed budget contains $200.3 million increase in the public school budgets. This includes the most significant back-to-back raises for educators in over a decade and increases in whole-child education, bilingual and multicultural frameworks, community schools, and STEAM education program.

The Governor’s budget maintains funding in the amount of $182 million for the K-5 Plus program and the Extended Learning Time program. These programs allow schools to extend their school year by 10 and 25 days. A $53 million increase to the at-risk index from 0.25 to 0.3 in the State Equalization Guarantee funding formula is being proposed. This increase builds on the $113.2 million in FY20 when the Lujan Grisham Administration almost doubled the at-risk index in the funding formula from 0.13 to 0.25.

The Governor is proposing a onetime $320 million new early childhood endowment trust fund that would help pay for early childhood education services. The endowment would increase state spending on prekindergarten, home visiting programs for new parents and other early childhood services. Lujan Grisham has previously described the endowment proposal for early childhood programs as a “prudent way” to expand spending on prekindergarten and reach “universal pre-K” that prepares every child to start school.

The Executive Budget Recommendation funds an additional $12 million to support educator and administrator development in the areas outlined in the Bilingual Multicultural Education Act and the Hispanic Education Act. The $12 million funding is considered critical to support low-income, Native American and Hispanic students, English language learners and students with disabilities which was singled out in the court ruling that the state of New Mexico is violating the constitutional rights of at-risk students by failing to provide them with a sufficient education.

CHILDREN, YOUTH AND FAMILIES DEPARTMENT

The Executive Budget includes a total increase of $22 million and a General Fund increase of $19.4 million for the Children, Youth and Families Department (CYFD). This includes funding for 62 new positions throughout the agency, including the protective services division and within the behavioral health services program. This addition builds on last year’s funding for new positions and brings the protective services division up to 863 funded positions.

The proposed Executive Budget includes funding of $8.1 million for rate increases for guardians, at-risk child care, the child advocacy center, safe and stable family contracts and kinship services. Kinship care providers are considered the backbone of our child welfare and foster family care. CYFD emphasizes prevention supports for at-risk children and youth and the proposed budget allots $8.5 million for behavioral health services.

EARLY CHILDHOOD EDUCATION AND CARE

The Executive Budget is proposing a funding increase of $74 million in General Fund to expand and improve on early childhood care services. Major components of the expansion include:

1. $26 million to expanding child care assistance by changing eligibility from 150% to 200% of the federal poverty level upon entrance and from 200% to 250% upon exit to serve an additional 4,163 children.

2. $15.6 million to provide wage supplements for over 3,000 child care providers statewide.

3. $8.4 million to expand private pre-k slots for three-year old children and three and four-year old children in mixed classrooms.

4. $11.5 million to expand public pre-k slots for four-year olds and conversion of part-day child care to full day child care and 637 new slots and 1,751 children to go from part time to full day care.

5. $3 million to expand home visiting services for over 1,000 families.

6. $3.5 million to expand the FIT program services to approximately 800 children.

7. $2.4 million to continue implementing provider rate increases based on the 2017 rate study.

$74 million is earmarked to increase early childhood services to establish a fully functioning Early Childhood Education and Care Department, including expanding child care assistance, raises for child care providers, more slots for pre-kinder garden, and expanded home visiting services

$320 million is earmarked to create the new “Early Childhood Trust Fund”, providing a dedicated and self-sustaining revenue stream to fund early childhood programs into the future.

HIGHER EDUCATION

The 2020 Executive Budget includes $839.9 million for Higher Education Institutions. The increase includes $5.6 million in formula funding for Instruction and General and $5.8 million for additional research and public service projects, which will total $141.1 million, and a $1.2 million increase for the Instruction and General line item for special schools.

Research and Public Service Projects include the following:

$1 million for the four flagship Centers of Excellence: Bioscience, Sustainable Agriculture, Cybersecurity, and Renewable Energy.

$2 million increase for the University of New Mexico Cancer Center to assist with their National Cancer Institute re-accreditation which is in addition to nonrecurring amounts for this purpose

$1.4 million increase for nursing programs within various institutions

$700,000 increase for early childhood and teacher education programs within various institutions

$100,000 increase for the New Mexico State University Dona Ana Branch Dental Hygiene Program; and a $375,000 increase for mental health programs.

The proposed Executive Budget creates a “New Mexico Opportunity Scholarship” that would benefit an estimated 55,000 college students and expand funding for child-care assistance and pre-Kindergarten programs statewide. The “Opportunity Scholarship” will cover the cost of tuition for students enrolled at New Mexico colleges and universities are expected to cost $25 million to $35 million. The scholarships offered will be aimed at covering the remaining gap for students after other awards and scholarships, including New Mexico’s lottery program scholarships or other sources. This funding will restore the initial promise of the Lottery Scholarship and re-establishing essential career pathways for New Mexicans across the state.

DEPARTMENT OF HUMAN SERVICES, MEDICAID EXPANSION, DEPARTMENT OF HEALTH

The Executive Budget proposal brings the Human Services Department’s (HSD) total General Fund budget to $1.22 billion. The Medicaid budget is increased by $55.8 million for a total Medicaid General Fund budget of $1.1 billion. The new funding will support Medicaid enrollment growth projections in Centennial Care stemming from targeted outreach and enrollment for New Mexicans who are Medicaid-eligible but not yet enrolled. The Department projects total enrollment of 850,000. Ensuring Medicaid is properly managed allows the Administration and State the flexibility to address the private health care market and responsibly oversee state investments in health care, which benefits New Mexicans while infusing billions of dollars into the state’s economy. Since the 2014 Medicaid expansion, more than 10,000 jobs have been created in New Mexico’s health care industry.

Major investments in caring for New Mexicans’ health and well being, including funding to serve additional New Mexicans on the Developmentally Disabled waiver waiting list and develop a new supports waiver service are being funded, as well as a $58 million increase to the Medicaid budget.

A $28.7 million increase to build a new behavioral health network, including community-based health services, is being proposed to effectively addressing substance use disorders, and addressing the behavioral needs of individuals in the justice system.

Funding is being provided to create a new Office of Wholesale Drug Importation within NMDOH to develop, plan, apply for & negotiate w/ the federal government for approval of a Canadian wholesale drug importation plan, working directly to reduce the costs of prescription drugs for New Mexicans.

$25 million is being proposed to create the “Kiki Saavedra Senior Dignity Fund”, addressing high-priority areas for seniors across New Mexico including transportation, food insecurity, physical and behavioral health services, case management, and caregiver services.

BEHAVIORAL HEALTH INITIATIVE

The single cruelest thing that former Republican Governor “She Who Shall Not Be Named” did was when she ordered an “audit” of mental health services by nonprofits in New Mexico based on questionable information. The audit eventually devastated New Mexico’s behavioral health care system.

In June 2013, under the direction of the former Republican Governor, the Human Services Department (HSD) cut off Medicaid funding to 15 behavioral health nonprofits operating in New Mexico. In 2014, more than 160,000 New Mexicans received behavioral health services, with most of those services funded by Medicaid, according to the Human Services Department. After the audits were completed, the former Republican Administration said that the outside audit showed more than $36 million in over billing, as well as mismanagement and possible fraud. Under the orders of the Republican Governor, Human Services Department agency brought in 5 Arizona providers to take over from New Mexico providers.

In early 2016, following exhaustive investigations, the Attorney General cleared all 15 of the healthcare providers of any wrongdoing and exonerated all of them of fraud. Even though the NM Attorney General found no fraud and cleared the nonprofits of fraud, the damage had been done to the nonprofits. With the Medicaid funding freeze, many of the 15 nonprofits could not continue and just went out of business leaving many patients without a behavioral health service provider. Lawsuits against the state were initiated by the mental health care providers.

Three of the five Arizona providers brought in by the previous Republican Administration in 2013 to replace the New Mexico nonprofits pulled out of the state. New Mexico’s mental health system is still struggling to recover.

https://www.abqjournal.com/749923/third-arizona-behavioral-health-provider-to-pull-out-of-state.html

Fifteen the behavioral health care providers forced out of business by the previous Republican Administration sued the State for damages. Since January 1, 2019 when Governor Michelle Lujan Grisham took office, 10 behavioral health nonprofits have settled their claims against the state with State Risk Management paying upwards of $15 million in damage to settle the cases. Governor Lujan Grisham has said repeatedly that the forced closure of the 15 behavioral health program caused severe disruption to New Mexico’s behavioral health system and had ripple effects on many families and businesses and also caused private health care costs to increase.

https://www.petedinelli.com/2019/12/10/governor-lujan-grisham-announces-more-behavioral-health-provider-settlements/

Governor Michelle Lujan Grisham’s 2020 Executive Budget Recommendation funds the multiagency Behavioral Health Initiative (BHI) for $28.7 million. The BHI has four primary goals:

1. Building a new behavioral health provider network;
2. Developing community-based mental health services for kids and families;
3. Effectively addressing substance-use disorder;
4. Effectively addressing the behavioral health needs of justice-involved individuals.

In order to address the behavioral health provider shortages and provide appropriate incentives to behavioral health providers so they can expand coverage across the state, the Executive Budget Recommendation includes funding to implement Medicaid behavioral health provider rate increases, supportive housing programs, and physician training assistance, as well as financial aid.

ECONOMIC DEVELOPMENT AND TOURISM

In November, it was announced that New Mexico has the 3rd highest GDP growth in the country. New Mexico now ranks in the top 10 for private-sector job growth nationally and has had the best year for job growth in the state since 2006. The state’s economy is finally turning around after so many years being affected by the great recession.

The 2019 budget made critical investments in projects qualifying under the Local Economic Development Act (LEDA), Jobs Training Incentive Program (JTIP) and Main Street programs that have contributed to the growth of the state’s economy. Increased funding was also provided to the tourism industry. A continuation of critical investments in economic development and successes in diversifying & expanding the economy, including $40 million for LEDA, $9 million for job training, and funds to grow outdoor recreation, film, & tourism activities is contained in the 2020 proposed budget.

The 2020 proposed Executive Budget contains funding to continue the successful investments made using the LEDA program of $40 million. $10 million will be used for rural infrastructure projects. The LEDA program has successfully encouraged businesses to come to New Mexico to stimulate economic growth in the state and leveraged $2.3 billion in private investments over the last six years. The FY20 goal is to create 2,500 jobs, and the addition of the rural fund will allow greater flexibility and opportunity for projects located in non-metro communities.

Last year, funding for tourism marketing was increased by $3 million. The 2020 Executive Budget Recommendation includes another $3 million increase, which will enable the Tourism Department to saturate our current markets being concentrated upon by the Department. The 2020 Executive Budget proposal funds an increase of $1.4 million for the Cooperative Marketing Program, which has a 1:1 matching fund component with local governments and nonprofits. $600 thousand has been earmarked to grow and enhance the brand extension program Certified New Mexico True by allowing for technical assistance and production support to state agencies and other partners. Nearly 300 products are now New Mexico True certified.

INFRASTRUCTURE, ROADS AND BRIDES

Governor Lujan Grisham is recommending $200 million in General Fund for roads, bridges and rail projects throughout the state. Last year, the Legislature and the Governor appropriated over $450 million in General Fund for state and local road projects. This year’s Executive Budget Recommendation, in addition to what was appropriated last year, will make significant headway in improving the roads in our state.

The State’s infrastructure needs continue to outweigh what is available for capital projects. Notwithstanding, according to the executive budget summary, the Lujan Grisham Administration is committed to putting tax dollars to work and ensuring projects begin faster and are completed faster without diminishing the integrity of the projects. Capital needs and deferred maintenance on public buildings across the state total $2.7 billion for FY21. This includes requests for local governments totaling $1.6 billion, state agencies totaling $752 million, higher education institutions, special and tribal schools totaling $339 million, and senior citizen facilities totaling $39 million. Funding for capital this year includes Severance Tax Bonds (STB) and General Obligation Bonds (GOB). Capacity for STBs is $362.3 million and the GOB capacity total is $198.9 million.

PUBLIC SAFETY

When it comes to public safety, the Governor’s Executive Budget provides funding to hire 60 additional State Police officers. There are more than 660 State Police officers across New Mexico. Right now, only about 60 of them are stationed in the Albuquerque area district, which covers 6 counties.

Then Executive Budget includes funding for the Department of Public Safety budget at $163.9 million, which will provide for a total of 60 new State Police officers, including equipment and training. Additional funding is included for ten new staff for forensic labs, including six new forensic scientists and a new data-sharing system that will address gaps in inter-agency communication, as well as $6.3 million for state police recruitment and retention initiatives.

It was on October 30, 2019 that Governor Michelle Lujan Grisham ordered the creation of the “Fugitive Apprehension Unit” to apprehend hundreds of criminal defendants across New Mexico who have not shown up for court hearings or wanted on bench warrants. The Fugitive Apprehension Unit consists of State Police officers and state Corrections Department staffers. The unit works with local law enforcement officials around New Mexico to track down and arrest people charged with committing violent crimes.

The increase of 60 additional State Police will give the governor the option to do more with the “Fugitive Apprehension Unit” as well as to conduct law enforcement surges as was done in Albuquerque last summer.

https://www.abqjournal.com/1407078/gov-lujan-grisham-unveils-7-7-billion-spending-plan.html

PERA SOLVENCY MEASURES

For the 2020 legislative session, Governor Michelle Lujan Grisham has endorsed a complex proposal to overhaul New Mexico’s chronically underfunded Public Employees Retirement Associatiob (PERA) proposed by Democratic legislative leaders. The proposal builds on the work of a PERA task force established by the governor with some major changes. The most controversial recommendations by her task force involved the 2% cost of living (COLA) currently guaranteed to all retirees.

According to media reports, the legislation will establish a “profit-sharing” model for the annual cost-of-living adjustments that most retirees now receive. Rather than an automatic 2% increase in their pensions each year, the actual amount would fluctuate, anywhere from 0.5% to 3%, depending on investment returns.

Under the proposed legislation, government employers and employees will pay more into the system with a schedule that phases in higher contributions. Other changes will help retirees who are older than 75, disabled or receiving pensions of less than $25,000 a year, despite 25 years of service.

In her 2020 proposed budget, the Governor is proposing a $76 million allocation for PERA but is not proposing any funding for Educational Retirement Board (ERB), the educators retirement plan.

SALARY INCREASES

Increasing teacher salaries to attract and retain teachers continues to be a major priority. For a second consecutive year of pay increases, the Governor is proposing a 4% increase for all teachers and education personnel costing $92.7 million. The Executive Budget Recommendation also includes funding for educator professional development of $17 million to support professional development and mentoring for teachers early on in their careers; educational leadership development and support; and educator recruitment, retention and evaluation.

The Governor’s budget includes a salary increase of 3% for all state employees totaling $27.6 million and 2% for all higher education employees, including much of the non-General Fund portion totaling $18 million.

https://www.governor.state.nm.us/2020-executive-budget/

See the full budget here: http://bit.ly/37FNFbt

LEGISLATORS REACT

Democratic State Senator John Arthur Smith, D-Deming, chairman of the powerfull Senate Finance Committee and fiscal conservative said the total spending amount proposed by the Governor is higher than under the legislative plan. Senator Smith also said the elevated reserve levels would give the state a cushion if oil prices fall or if an economic recession were to hit.

Republican State Senator Steven Neville, R-Aztec, said the governor’s spending plan bears some similarities to a competing plan that is still being crafted by the influential Legislative Finance Committee that will be released later this week and said:

“We’re kind of in the same ballpark when it comes to getting teachers better compensation and those kinds of things”

https://www.abqjournal.com/1407078/gov-lujan-grisham-unveils-7-7-billion-spending-plan.html

STATE REVENUE SURGE

According to news reports state revenue collections are roughly $273 million above projected levels, and will in all likely be even higher, due primarily to skyrocketing oil production in southeastern New Mexico that has led to a regional economic upswing. Royalties, taxes and other direct revenue from oil and natural gas production now make up more than 35% of all revenue collected by New Mexico.

The higher-than-expected revenue surge has the state on track to collect an unprecedented $7.97 billion in the budget year that ended June 30. Such revenues could allow for additional spending increases on public schools, roads, shoring up the PERA pension funds and other state programs in the upcoming 2020 legislative session.

https://www.lcsun-news.com/story/news/local/new-mexico/2019/08/19/new-mexico-pace-record-7-8-billion-revenue-thanks-oil-production/2053628001/

New Mexico was already expecting a $1.3 billion budget surplus for the fiscal year. However, a Legislative Finance Committee revenue tracking report suggests that the final surplus figure will likely end up being larger. Most of the revenue windfall is due to an oil boom in the Permian Basin that has been driven by improvement in drilling techniques and production methods and has made New Mexico the nation’s third-highest oil producing state.

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

NEW MEXICO LEGISLATURE OFFERS OWN 2020 BUDGET PROPOSAL

On January 7, 2020, one day after Governor Michelle Lujan Grisham released her proposed executive budget, the New Mexico Legislative Finance Committee released its own 2020 proposed budget. The Committee’s proposed budget calls for about $7.5 billion in ongoing spending which is an increase of 6.5% over current levels. The Governor’s proposed budget calls for an 8.4% increase.

The difference amounts to $132 million in annual spending out of a $7.5 billion dollar budget. Both budgets will be considered and debated by both the House and Senate with the goal to reach a consensus during the 30 day session that begins on January 31.

AREAS OF AGREEMENT

According to the released legislative budget, the bipartisan Legislative Finance Committee (LFC) is supporting Governor Michelle Lujan Grisham’s plan to establish her proposed a new endowment fund to help pay for early childhood programs. Both the Governor’s proposed budget and the LFC recommendations include hundreds of millions of dollars to establish an early childhood education trust fund. Governor Lujan Grisham proposed $320 million and lawmakers are proposing $325 million. The trust fund would essentially be an “endowment fund” to be used in future years that would disperse funding for early childhood programs.

Another area of agreement is that the LFC budget revealed also calls for pay hikes for teachers and increased spending on public education very similar in scope to the Governor’s proposed budget recommendations.

Both the Governor’s proposed budget and the LFC budget suggest similar increases of $53 million to $57 million in a funding formula that provides extra money to schools and districts with a large number of “at risk” students.

https://www.abqjournal.com/1407428/lawmakers-issue-competing-budget-proposal.html

AREAS OF DISAGREEMENT

The Legislative Finance Committee (LFC) is opposing the Governor’s new college scholarship program allocating $35 million in funding for a new scholarship program aimed at making college tuition-free for state residents. The legislative budget proposal doesn’t include funding for the program but instead targets $35 million in increases for financial aid programs, with a focus on low-income students.

Lujan Grisham is seeking $26 million to expand eligibility for a childcare assistance program for lower-income families. Lawmakers are proposing a mere $1 million extra for childcare assistance subsidies because federal funding might increase.

Under her proposed budget, the Governor is proposing a 4% salary increase for teachers, and state workers would receive 3% pay raises. The LFC is proposing a 3% pay increase across the board for teachers, school personnel and state employees, with targeted increases in a few cases, such as for bilingual and special education teachers and State Police officers.

The Legislative Finance Committee is recommending $150 million to help the state’s two main pension systems, THE PERA system and Educational Retirement Board (ERB) for educators. The Governor is proposing $76 million for PERA and no funding for ERB, the educators retirement system.

LEGISLATORS REACTION

Democratic LFC Chairman State Senator John Arthur Smith, Democrat from Deming, said an oil boom in the southeast part of the state is helping provide the revenue to increase spending and maintain healthy reserves of 25%.

State Representative Patricia Lundstrom, a Gallup Democrat and vice chairwoman of the Legislative Finance Committee had this to say:

“Our difference with the executive is not that far apart,” “I feel like this is a very responsible budget.”

The Governor’s Spokeswoman Nora Meyers Sackett said the administration is optimistic about the coming budget talks and said:

“It seems unprecedented to have so much agreement at this point in the process and we’re very excited to be starting from a place where there is so much overlap.”

ANALYSIS AND COMMENTARY

In addition to her proposed Executive Budget, the Governor has made it known that she intends to add to the call bills calling for the legalization of recreational cannabis, Public Education Retirement Association (PERA) solvency measures, parole reform and red flag gun control laws allowing seizure of guns with a court order from those who pose an immediate threat to themselves and others.

One thing is for certain, the governor’s proposed budget is ambitious but the job of promoting her programs during the 2020 legislative session will be made much easier because of the oil boom that has propelled New Mexico’s government revenue to record highs. The fact that the Governor’s proposed budget and the LFC budget are so similar in scope should allow the legislature to consider other items placed on the call by the Governor.

The record surplus should allow the Governor to virtually fund all the education programs she wants, invest in capital projects and infrastructure as well as shore up the PERA pension funds, but only if the legislature allows her. Another major source of revenue for the state would be the legalization of the recreational use of marijuana, if done properly, with responsible regulation and taxation.

The 30 day New Mexico legislative session begins on January 21. Once the session begins, both budgets will be subject to legislative hearings in both the House and Senate. A final budget will emerge. The legislature has until February 20 to send the Governor the approved budget. Governor Lujan Grisham will have until March 11 to veto all or parts of the budget.

On November 5, 2018, New Mexico voters, with a 75% majority, voted for a constitutional amendment to establish an independent statewide ethics commission with subpoena power. New Mexico was one of only 6 states without an independent ethics commission.

Passage of the constitutional amendment was the result of a 40-year push to establish an independent agency with jurisdiction over allegations against legislators, candidates, lobbyists and others. It was left up to the New Mexico Legislature to determine the details of how the seven-member commission would operate.

On March 15, 2019, with only hours left to go in the 60-day legislative session, state lawmakers reached a compromise on creating a new, independent ethics commission. During the 60-day session, the legislation underwent multiple rewrites and changes.

The final House vote was an impressive 66-0 vote in favor of passage. The State Senate voted to accept the final version and the bill was signed by Governor Michelle Lujan Grisham in March.

AGENCY UP AND RUNNING

On January 4, 2020, a little more than 10 months since the NM Legislature enacted the creation of the Ethics Commission, it was reported that the Ethics
Commission is fully operational and accepting complaints to investigate.

State law authorized the commission to begin accepting ethics complaints on January 1, 2020. The Commission plans to meet every other month, although it can meet as often as it wants depending on the volume of complaints and related work, including issuing rules and regulations.

The Commission has established a website and according to news reports, it may issue its first advisory opinion next month. The commission has office and meeting space in Albuquerque, although it has held meetings in other parts of the state.

The New Mexico Legislature funded the ethics commission with $500,000 in the state budget for the fiscal year that began on July 1, 2019. The commission is seeking a supplemental appropriation of $385,000 to $400,000. For the 2020-2021 fiscal year, the agency is requesting a little over $1.1 million.

https://www.abqjournal.com/1406564/new-state-watchdog-ready-to-investigate-ethics-complaints.html

COMMISSION MEMBERS IDENTIFIED

The New Mexico Ethics Commission consists of 7 members, all political appointments. The 7 commissioners are as follows:

Hon. William F. Lang, Chair, appointed by Governor Michelle Lujan Grisham,
Initial term expires: June 30, 2022

Jeff Baker, Member Legislatively-Appointed Commissioner,
Initial term expires: August 14, 2020

Stuart M. Bluestone, Member, appointed by Speaker of the House, Brian Egolf, Initial term expires: June 30, 2023

Hon. Garrey Carruthers, former New Mexico Governor, Member, appointed by Minority Floor Leader of the Senate, Stuart Ingle. Initial term expires: June 30, 2023

Ronald Solimon, Member, appointed by Legislature. Initial term expires: August 14, 2020

Dr. Judy Villanueva, Member, appointed by Minority Floor Leader of the House, James Townsend. Initial term expires: June 30, 2021

Frances F. Williams, Member, appointed by President Pro Tempore of the Senate, Mary Kay Papen. Initial term expires: June 30, 2021.

COMMISSION STAFF MEMBERS APPOINTED

In September, 2019, Jeremy Farris, the former chief legal counsel at the state Department of Finance and Administration was appointed Executive Director. On January 5, 2020, the Albuquerque Journal published a guest column written by Jeremy Farris entitled “States Ethics Commission Starts Work In New Year“. You can read the full column in the postscript below to this article followed by the link to the article.

The Commission has hired Walker Boyd, who previously worked at an Albuquerque law firm, as its first general counsel.

The commission has appointed and entered employment contracts with retired New Mexico State Supreme Court Justice Edward L. Chávez and retired U.S. Magistrate Judge Alan C. Torgerson as hearing officers.

DEVIL IN THE DETAILS OF THE ETHICS COMMISSION

The enacted legislation creates an ethics commission that is empowered to oversee state public officials, including state lawmakers, state employees and constitutionally elected officials, including the governor. A seven-member commission was created and is empowered to fine public officials if they are found by the commission to have violated civil provisions of state laws. There is no authority to suspend or remove from office elected officials.

Anyone who files a complaint must secure a notary public and attest to the truth of the allegations in the complaint under penalty of perjury. Although the Ethics Commission accepts only signed complaints, it can also initiate its own complaints with approval from 5 of the 7 commissioners. It can also accept referrals from other agencies.

The attorney appointed as “general counsel” by the seven-member commission serves as an investigator and prosecutor. The commission’s general counsel determines whether a complaint warrants investigation and if so, the general counsel will investigate the allegations made.

The Ethics Commission “hearing officers” are appointed to adjudicate the cases where evidence suggests there is an ethical violation. The hearing officers are required to use the legal standard of “preponderance of evidence” to make the determination if there was an ethical violation and must make specific findings.

The legal term “preponderance of the evidence” means the greater weight of the evidence required for the trier of fact, the hearing officer, to decide in favor of one side or the other. “Preponderance of the evidence” is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.

The Ethics Commission through its general counsel is empowered to petition a state judge to issue subpoenas for documents and other materials as part of its work and with a judge designated to issue and grant the subpoenas on behalf of the commission itself. A public official who disputes a hearing judge’s finding are given the right to appeal the ruling to the seven-member ethics commission.

Ethics complaints are be made public 30 days after probable cause is found to proceed with an investigation. The ethics commission is prohibited from revealing ethics complaints that have been deemed frivolous or unsubstantiated, but the accuser or accused can publicly disclose the complaints.

The ethics commission is not empowered to investigate violations of legislative policies by legislators, such as sexual harassment policies, unless the Legislature works out an agreement for the ethics commission to investigate such complaints. Even then, if the ethics commission determines that a legislator has violated legislative policy, the ethics commission is required to turn over its findings to the Legislature, which would then in turn determine the legislator’s punishment.

A very significant provision included in the commission powers is authority over include statewide public officials such as the governor, the lieutenant governor, attorney general, secretary of state, public land commissioner and state auditor, or candidates for those offices, to those prohibited from soliciting campaign contributions from January 1 through the end of each year’s legislative session. However, the ethics commission has no authority over school board members and local officials such elected Mayors or City Councilors.

The enforcement of the state’s Open Meetings Act and Inspection of Public Records Act is left to the New Mexico Attorney General, and such enforcement is not made part of the duties of the Ethics Commission. State legislators are already prohibited from soliciting campaign contributions from January 1 through the end of each year’s legislative session.

POWERS AND DUTIES OF THE COMMISSION

Under the New Mexico Ethics Commission Act, the commission:

“may initiate, receive, investigate and adjudicate complaints alleging violations of, and issue advisory opinions concerning, standards of ethical conduct and other standards of conduct and reporting requirements, as may be provided by law, for state officers and employees of the executive and legislative branches of government, candidates or other participants in elections, lobbyists or government contractors or seekers of government contracts and have such other jurisdiction as provided by law.”

Additionally, the Ethics Commission:

“may require the attendance of witnesses or the production of records and other evidence relevant to an investigation by subpoena as provided by law and shall have such other powers and duties and administer or enforce such other acts as further provided by law.”

Powers and duties of the commission also include the power to develop, adopt and promulgate the rules necessary to implement and administer the provisions of the State Ethics Commission Act.

Absent from the enabling legislation creating the ethics commission is any authority to suspend or remove elected or appointed officials for nefarious or unethical conduct.

https://www.ncsl.org/research/ethics/50-state-chart-state-ethics-commissions-powers-a.aspx

JURISDICTION OF COMMISSION

According to its website, the Commission has “jurisdiction to enforce the civil compliance provisions of eight statutes and one constitutional provision for public officials, public employees, candidates, persons subject to the Campaign Reporting Act, government contractors, lobbyists and lobbyists’ employers”.

The statutes are:

Campaign Reporting Act (1-19-25 to 1-19-36, NMSA, 1978)
Financial Disclosure Act (10-16A-1 to 10-16A-7, NMSA 1978)
Gift Act (10-16B-1 to 10-16B-4 NMSA 1978)
Lobbyist Regulation Act (2-11-1 to 2-11-9 NMSA 1978)
Voter Action Act https://www.nmlegis.gov/sessions/03%20Regular/FinalVersions/HB0420.pdf
Governmental Conduct Act (10-16-1 to 10-16-18 NMSA 1978)
Procurement Code (13-1-28 to 13-1-117 and 13-1-118 to 13-1-199)
State Ethics Commission Act https://nmlegis.gov/Sessions/19%20Regular/bills/senate/SB0668EDS.pdf
Article 9, Section 14 of the Constitution of New Mexico.”

https://www.sec.state.nm.us/faqs/#Section02

Allegations of criminal conduct are referred to law enforcement agencies. The 8 statutes the Ethics Commission is authorized to enforce are strictly civil in nature and provides for civil penalties and fines. The one power or penalty the Ethics Commission is not granted is the power to suspend or remove an elected or public official.

OFFICIALS NOT SUBJECT TO THE COMMISSION’S JURISDICTION

According to its website, the Ethics Commission has limited jurisdiction and only over certain individual as follows:

“LOCAL OFFICIALS AND EMPLOYEES

Third, the Commission lacks jurisdiction over conduct occurring on or before July 1, 2019.”

https://www.sec.state.nm.us/faqs/#Section02

ONLY 3 WAYS A COMPLAINT CAN BE BEGIN

An Ethics Case before the Commission can begin only one of three ways:

1. A complainant may file a complaint with the Commission.

2. Another agency may refer a complaint filed originally with that agency to the Commission.

3. The Commission may initiate a complaint with the approval of at least five Commissioners.

WHAT HAPPENS AFTER A COMPLAINT IS FILED

The Ethics Commission website gives the following succinct explanation on what happens after a complaint and a response to the complaint are filed:

REVIEW FOR JURISDICTION

At all times, from the filing of the complaint to the Commission’s final decision on appeal, both the Complainant and the Respondent may be represented by a licensed attorney. Alternatively, both the Complainant and Respondent may represent themselves. If the Respondent is a state employee or a state official, the Risk Management Division of the General Services Department will likely provide the Respondent with an attorney.

WEBSITE LINK WITH INSTRUCTIONS

The link to the website can be found here:

https://www.sec.state.nm.us/

The website contains a section where the public can sign up for updates from the commission including pending cases and advisory opinions. The website also gives a detail explanation on how a complaint can be filed, gives instructions on how to file an ethics complaint, provides forms and outlines what the complaint needs to allege, including laws believed to have been violated, witnesses and evidence relied upon. The website also provides a guide to respondents and what they must do to respond.

COMMENTARY AND ANALYSIS

New Mexico has had more than its fair share of public corruption scandals over the years. A rogue’s gallery of unethical conduct, fraud, theft and abuse of power and influence in New Mexico politics includes Former Democrat State Senator Manny Aragon, two former Democrat State Treasurers, Michael Montoya and Robert Vigil, former Republican Secretary of State Dianna Duran, former Democrat State Senator Phil Griego, former Republican State Senator Monica Youngblood, former Republican New Mexico Taxation, and Revenue Secretary Demesia Padilla.

Unproven allegations of “pay to play” plagued the 8-year tenure of Democrat Governor Bill Richardson with a federal grand jury investigation resulting in no indictments and no finding of “pay to play”. Former Republican United States Attorney for the District of New Mexico Gregg Forate, with an obvious strong Republican partisan bias, released a scathing letter of condemnation that accused the Richardson administration of “corrupting” the government contract award process.

During the 8-year tenure of former Republican Governor “She-Who-Must-Not-Be-Named”, allegations of unethical conduct and undue influence with the award of the billion-dollar, 20-year Downs Race Track Lease, dubbed the “Dirty Downs Deal”, occurred. What also occurred was a federal grand jury investigation of the Republican Governor’s number one political consultant and campaign manager relating to misuse of her inauguration funding.

One area that merits serious consideration by the New Mexico Legislature is to empower the Ethics Commission with the authority to suspend or remove a public official or give the Commission the authority to seek from a District Court or Supreme Court the suspension or removal from office elected officials who have been found to have engaged in nefarious or unethical conduct. Further, the Ethics Commission should be given authority over local elected officials such as Mayors and City Councilors.

The statewide Ethics Commission should help rebuild trust in a state government that has experienced way too much corruption through the years. However, it will be able to do so only if it is empowered with real authority to suspend or remove someone for nefarious or unethical conduct. Otherwise, the Commission will be an exercise in futility to hold nefarious and unethical officials actually accountable for their actions short of criminal prosecution, forced resignations or awaiting that they be voted out of office.

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POSTSCRIPT

On January 5, 2020, the Albuquerque Journal published the following guest column written by Jeremy Farris, the Executive Director of the States Ethics Commission:
HEAD LINE: STATE’S EHTICS COMMISSION STARTS WORK IN NEW YEAR

“In a November 2018 referendum, New Mexicans voted by a more than 75% margin to approve an amendment to the state Constitution creating an independent ethics commission. With the advent of the new year, the State Ethics Commission begins its work.

The link to the Albuquerque Journal guest column is here:

https://www.abqjournal.com/1406715/state-ethics-commission-starts-work-with-new-year-ex-from-enforcement-to-advisory-opinions-the-panel-will-work-to-restore-public-trust.html

For a related blog article see:

State Ethics Commission Created; Major Kudos To Reps. Daymon Ely, Greg Nibert And Sen. Daniel Ivey-Soto

Dan Klein is a retired Albuquerque Police Sergeant after 20 years of public service. He has been a small business owner in the private sector now for 15 years. Mr. Klein has been a reporter for both on line news outlets the ALB Free Press and ABQ Reports.

On December 16, 2019 the following article written by Dan Klein, with introductory bullet talking points was published by ABQ Report:

“- Will we see Keller holding anyone accountable for the charade that APD and crime fighting in Albuquerque has become? No.

Until there is accountability for the fools running APD into the dirt, get ready to laugh at more ridiculous PR stunts, and get ready to see more crime. This is what a ship of fools looks like.”

The link to the unedited ABQ Report is here:

https://www.abqreport.com/single-post/2019/12/16/APDs-ship-of-fools

COMMENTARY AND ANALYSIS

Mayor Tim Keller and APD Chief Michael Geier need to recognize the fiasco the APD homicide unit as well as what APD continues to be, despite all the implemented DOJ reforms, unless something more is done to improve things with the management of APD and its personnel. Mayor Tim Keller for the last two years has been given essentially everything he has asked for from city council for public safety, and then some. He now needs to start managing and producing results to make this city feel safer.

Given the sure number of homicides and the pathetic homicide clearance rate, the Homicide Investigation Unit needs to be increased from 11 detectives to at least 24 detectives with two separate units, one for the most current homicides and the second for older back logged cases. Further, given the units low clearance rate and past performance, more needs to be done with respect to recruiting and training. APD continues to be in a crisis mode when it comes to our violent crime rates and it needs to concentrate on recruiting seasoned homicide detectives from other departments if necessary.

Within a few months of first taking office, Mayor Tim Keller and APD Chief Michael Geier completely reorganized APD and put their own management team in place. After more than two years in office, another reorganization of APD is in order because what APD is doing now is not cutting it, nor getting the job done when it comes to the City’s crime rates. It is obvious that the APD command staff Keller handpicked is not getting the job done. Major personnel changes are in order, including asking for more than a few resignations, starting with the APD command staff Keller picked. The reorganization would include increasing the number of officers sworn to patrol the streets and increasing the various units, such as the homicide and investigations units.

A reorganization needs to include abolishing the APD Internal Affairs Unit, with its functions absorbed by other civilian departments. Currently, there are 61 sworn police assigned to the compliance bureaus, which includes APD Internal Affairs. There are 40 detectives involved with the Department of Justice reform enforcement. Those 40 officers would be better utilized in the field services patrolling the streets.

Until then, APD Chief Michael Geier and Mayor Tim Keller will continue to be the Captain and First Skipper Gilligan on the Ship of Fools known as APD.

On January 1, 2020 it was announced by his family that long time Albuquerque City Councilor Ken Sanchez passed away. He was 63. He suffered a major medical episode 5 weeks ago and has been hospitalized since then. He was first elected to the city council in 2005 and elected to 4 terms as a city councilor, serving for 14 years District 1, the central west side district of Albuquerque. He had said he would run for another term in 2021. Mayor Tim Keller will appoint a replacement to serve out the remaining two years of his term.

A LEGACY OF PUBLIC SERVICE

During his time on the City Council, he served as City Council President in 2010, 2014, and 2018 and served as Committee of the Whole Chairman in 2006, 2008, 2009, and 2011 and working towards balanced and responsible budgets. Councilor Sanchez was also appointed Chair of the Finance and Government Committee in 2012. In 2012 Councilor Sanchez was unanimously elected Chair of the Albuquerque/Bernalillo Water Utility Authority. Councilor Sanchez also served the community for two terms on the Bernalillo County Commissioner from 1995-2002.

Councilor Sanchez was born and raised in Albuquerque and lived on Albuquerque’s West Side for more than 40 years. He was the primary principal of the Gilbert Sanchez Tax Accounting Firm on West Central Avenue and an enrolled agent to practice before the Internal Revenue Service. Councilor Sanchez was also the president of Ken Sanchez & Associates Realty.

Throughout his years on the city council, Councilor Ken Sanchez was committed to improving the lives of Albuquerque’s Westside residents and the city as a whole. He is credited with securing $2 million in funding for youth programming and moving the the Netflix deal through the City Council. Recently, he helped with the efforts to secure funding for the gateway facility for people experiencing homelessness.

He worked with the residents of the city, the Albuquerque Police Department and the Albuquerque Fire and Rescue Department to address the needs of Public Safety in general. Among his many efforts, he worked with the community, the City Council, all Mayors and other elected officials, and local businesses to bring much needed economic retail development to the Westside. He worked to bring more jobs and places for people to shop near their homes on the Westside.

A number of projects Councilor Sanchez worked on over the years include: the new fire station 7 that improves service to the growing community, the full service Patrick J. Baca library, the UNMH Clinic, Transit Center, and the proposed mixed-use site that will include housing, retail, and offices at the NW corner of Central and Unser. He has also worked with Westside residents, Legislators, and the Library Board for a number of improvements at the Taylor Ranch Library. Councilor Sanchez worked with the community and other elected officials to open the new Joan Jones Community Center at Pat Hurley Park, the renovated West Mesa Community Center, and worked to open the new Westgate Community Center.

Councilor Sanchez worked for beautification and driver and pedestrian safety on the Westside, including median landscaping and traffic calming measures on Unser, Ladera, and a number of residential streets in District 1. He recognized the need for improved infrastructure, working with the residents of the SW and NW, our State Legislators and other elected officials for the expansion of Unser Blvd south to Senator Dennis Chavez and north to Paradise Blvd, as well as having obtained funding to extend 98th Street south to Senator Dennis Chavez Blvd., which now better serves the students that attend Atrisco Heritage Academy and the residents of the far SW communities. Councilor Sanchez also worked to improve Unser, north of I-40 to add lanes to handle the increased traffic of the Westside. Sanchez worked with Westside Legislators to fund additional lanes on I-40 westbound to the exits of Unser Blvd and 98th/Arroyo Vista Blvd to help the Westside commuters’ ease off the freeway.

https://www.cabq.gov/council/find-your-councilor/district-1/about-the-councilor-district-1

VAYA CON DIOS

Many of his West side constituents referred to Ken Sanchez as the West side’s Mayor or “the champion for the westside.” He was a hard-working public servant without question and always worked for what was in the best interest of his constituents. The one word that is always used when talking about Ken Sanchez is “gentleman”. He had the common touch and always went out of his way to be gracious and courteous to all those he came in contact with. He has left a legacy that will be remembered long after he is gone.

Vaya Con Dios Caballero Ken Sanchez.