On Tuesday, February 23, on a 41 to 27 vote, House Bill 255 (HB 255) passed the New Mexico House and was referred to the State Senate for hearings. On Wednesday, March 3, the Senate Judiciary Committee voted 5-4 to send the bill to the Senate floor for a final vote. HB 255 will create a new type of liquor license. The bill is strongly opposed by current liquor license holders.

As amended and approved by the Senate Judiciary Committee, the legislation has 3 major components :

It allows restaurants to deliver alcoholic drinks with food. Retailers could also apply for permits to deliver alcohol. An earlier version of the bill would have limited retail delivery to smaller stores, but the committee on Wednesday removed the size restriction, a move that would allow big-box stores to deliver, too.

It establishes a new license intended to make it easier for restaurants to sell liquor, not just beer and wine.

It Imposes a 2% tax on retailers selling alcoholic drinks to help raise revenue to offset other changes to the liquor tax structure. But the 2% tax would sunset in four years, a change added by the Senate Judiciary Committee on Wednesday.

A link to related news coverage is here:

https://www.abqjournal.com/2365488/liquor-law-changes-on-way-to-senate.html

RESTAURANT B LICENSE

HB 255 allows for the creation of a new “Restaurant B” license. It would allow restaurants to serve liquor by paying a yearly fee of $2,500 to $10,000, depending on restaurant capacity. The new licenses would be the first major change to New Mexico liquor licensing in 40 years.

It was in 1981 the New Mexico legislature created a system that allows for issuance of only 1,411 liquor licenses for the state where holders of the licenses can sell, transfer or lease the licenses. The legal effect of giving the authority to sell, transfer or lease the licenses results in granting a property right by the state.

The sale, transfer or leasing on the open market and the limited number of licenses available resulted in dispenser licenses, which allows the sale of all alcohol, to increase in value. Under current law restaurants wanting to serve hard liquor must own or lease a liquor license, which can cost hundreds of thousands of dollars Dispenser licenses known to sell upwards of $1 Million.

Interlocal Dispenser Licenses are the type license most commonly used by restaurants. There are 413 Interlocal Dispenser Licenses. According to the State Alcoholic Beverage Control the licenses can cost up to $400,000. The state does not keep track of how many of the licenses are held by restaurants, as opposed to full-service bars, entertainment venues or hotels. As a result, it is difficult to determine how many license holders will be affected with the issuance of the new type of license.

The proposed Restaurant B license would drastically change the Interlocal Dispenser Licenses system but there will be limiting conditions. Those who opt for the Restaurant B license would have to keep alcohol sales under 40% of their total revenue and end alcohol sales at 10 p.m. Current liquor licenses allow owners to sell alcohol until 2 a.m.

Bars and restaurants that choose to stay open later and use Interlocal Dispenser Licenses would not be eligible for the Restaurant B license. However, the bill also includes several tax deductions that aim to help current liquor license holders recoup their original costs.

In addition to the new Restaurant B licenses, HB 255 will allow home-delivery of alcohol in some circumstances and establish tax breaks intended to help the holders of certain liquor licenses. Under HB 255, local communities could choose to opt out. Also, HB 255 would expand tastings to craft distilleries and expand restaurant alcohol licenses that meet local ordinances to include not only beer and wine but also spirits with a 10 p.m. cutoff.

GOVERNOR’S SUPPORT AND SPONSOR REACTION

Governor Michelle Lujan Grisham supports the aim of HN 255 which is to help the struggling restaurant industry amid the coronavirus pandemic.

HB 255 is clearly a bi-partisan effort. Democratic Representative Javier Martínez and Dayan Hochman-Vigil, and Antonio Moe Maestas, all 3 of Albuquerque, and Republican Representatives Rod Montoya of Farmington and Joshua Hernandez of Rio Rancho are sponsors of the bill.

Representative Antonio “Moe” Maestas, D-Albuquerque had this to say during the floor debate before house passage:

“This is the first time in 40 years a liquor bill has gone this far that expands business opportunities for some New Mexicans. … Creation of a new license could prove to be beneficial to current license holders who now have the choice to sell their license or keep their license and retain the ability to serve until 2 a.m. … If you have a liquor license and you don’t stay open past 10 [p.m.], it is as if this bill is giving you the equivalent of a $350,000 license, because you can purchase the restaurant B license.”

OPPOSITION CONCERNS RAISED

The creation of the new type of license has generated strong opposition from the restaurant and liquor industry. Liquor license owners who oppose the proposed legislation say the creation of the new Restaurant B license grants other restaurants the same privileges as current liquor license owners for a fraction of the price they had to pay and it is felt unfair and devalues their original investment.

CEO of the New Mexico Restaurant Association Carol Wight said her association has members on both sides of the issue and that the association does not support of the HB 255 in its current form. Wight did say she is working with the bill’s sponsors with the hope changes can be granting more privileges to Interlocal Dispenser License holders and placing more restrictions on the new Restaurant B license.

Wight put it this way:

“It would be nice for restaurants to have [Restaurant B licenses]. On the other hand, I have members who own liquor licenses that they paid $300,000 for, and they’re not going to be very happy because now they’ve got a licensee that’s coming in at $10,000.”

Terry Keene, one of the owners of the Artichoke Café in Albuquerque had this to say:

“[The Restaurant B license] makes our liquor license worthless. … We use that as an investment … towards our retirement, and to give value to our restaurant if and when we ever choose to sell it.”

Mike and Alice Romero, owners of Michael’s Mini-Mart & Package Liquor Featuring Your Favorites By Alice in Velarde, urged House members to strike down the bill and had this to say to them:

“It is too drastic a bill, attempting to do too much without proper study. Large out-of-state chain establishments will be able to absorb the proposed license devaluations, and we will become a state full of the generic restaurants and stores that you find anywhere else in America. ”

The Romero’s did say some changes are needed in the liquor control laws and that alcohol home deliveries are a good step forward but that they fear other changes could harm New Mexicans.

Myra Ghattas, owner of Slate Street Cafe and Sixty-Six Acres, acknowledged it’s likely that existing license holders will pay a price for the reform and labled it as “unfortunate.” Notwithstanding, Ghattas supports the bill and said:

“The most important thing is our state needs liquor license reform to attract new business to be competitive with our neighboring states – to give local, small, independents a chance in the market. We don’t all have those deeper pockets like some of the big chain restaurants or big chain retail stores, so it’s long overdue.”

The links to a news source are here:

https://www.abqjournal.com/2362756/overhaul-of-liquor-licenses-advances.html

https://www.krqe.com/news/politics-government/legislature/new-mexico-house-endorses-liquor-reforms/

COMMENTARY AND ANALYSIS

In general terms, licensing by a government agency means the government gives permission to an individual, business or corporation to do something or do an activity that is highly regulated for the protection of the public health, safety and welfare. Licensing usually requires minimum qualifications mandated by state regulations such as education, training and certifications and even inspections at times.

Examples include licenses to drive, to do business, practice certain trades such as construction, plumbing, electrical, architecture, the practice of law, the practice medicine and even selling some goods and services. Health code inspections for restaurants and grocery stores are good examples of government licensing regulations of goods and services.

Under the current liquor control laws enacted some 40 plus years ago, a “dispenser’s license” allows for the sale of package liquor sales as well as the on-premise sale and consumption of alcohol. Although beer and wine licenses are available, full scale dispenser licenses are tied to population numbers in counties and limits the number of licenses that are available.

Once issued by the state for a one-time fee the liquor license becomes the property of the purchasers. As a result, liquor dispenser licenses carry with them property rights, are limited in numbers and can be sold on the open market. Over the years, dispenser licenses have increase in value and are now known to be sold for upwards of $1 Million dollars. Consequently, only the wealthy or major corporations can purchase dispenser licenses.

Current owners of liquor dispenser licenses have strongly resisted any efforts to allow the creation of different categories of licenses. The argument made by the owners of “dispenser’s licenses” is that creating new licenses or increasing the availability of more licenses will devalue their investment purchase. The argument made by owners of full scale “dispenser licenses” is that their investments would suffer a sever devaluing making them worthless. One argument made is that the state should be required to reimburse or purchase back the licenses for what the owners have paid for them on the open market.

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

The biggest problem with the existing state liquor control laws is that they create the problem of granting a “property right” to those who were originally issued state licenses by allowing them to be sold or leased on the open market. The state did so for the sole purpose of putting a cap on the number of liquor licenses in order to avoid the proliferation of liquor businesses in a county, city or neighborhood. It was a good idea at the time and was intended to have an impact on the state’s alcohol abuse problem and DWI rates.

The state originally issued the licenses over 40 years ago for a significantly reduced or nominal fee and buy back those licenses today by the states would be at the tremendously inflated market value.

IMPEDIMENT TO ECONOMIC DEVELOPEMNT

To be blunt, the state’s existing liquor licensing laws impairs economic development. The dispenser licensing law works against the small business owner or entrepreneur. As the market exists now, only out of state chain stores and restaurants, which are proliferating Albuquerque and squeezing out locally owned businesses, can afford whatever it takes to buy a liquor license.

Smaller, locally owned restaurants cannot compete nor afford to pay hundreds of thousands for a dispenser liquor license. Any average New Mexican who wants to open a new bar or restaurant with a full liquor license cannot do so because the cost of a liquor license is so prohibitive. Although there is a cap placed on the number of licenses that can be issued based on population numbers, there is no real evidence that fewer licenses reduce DWI rates and increase public safety in any meaningful way.

Regulation and Licensing spokeswoman Bernice Geiger had this to say:

“Currently one of the impediments to economic development in the state is the relatively high cost of a dispenser type liquor license. One of the goals of this bill is to give people who are priced out of the market the ability to get into the market, to decrease the cost of licenses across the board, but [to give] current licensees the flexibility to pivot to new business opportunities by allowing the buy-back of lost package privileges or the ability to sell the license in markets that currently are restricted.”

https://www.abqjournal.com/1538506/liquor-overhaul-bill-would-allow-home-delivery.html

RETURN TO TRUE MEANING OF STATE LICENSING TO PERMISSION

The sale of liquor in the state is one of the most highly regulated industries in virtually all states. Licenses usually have ongoing qualifying mandates for renewal and at times have terms as to how long the license is effective and must be renewed. There is also a liquor license revocation process in place, such as revoking a license if liquor is sold to minors. Normally, licenses issued by a state do not give vested property rights to those individuals who apply for and issued the license to be able to sell or transfer on the open market. Dispenser licenses are viewed as “speculative investments” that accrue in value, and that was never the intent of the legislature.

The unintended consequence of New Mexico’s current liquor control act is that it gives property rights to the license holder to sell, transfer or lease the license. This was done for the purpose of limiting the total number of licenses the state can be issued based on population levels. One thing is for certain, the state needs to abolish the population caps on the number of liquor licenses, abolish dispenser licenses and refrain from ever giving property rights to a license’s it issues for permission to do a state regulated activity in the future.

FINAL COMMENTARY

There is very little doubt that the pandemic, the public health orders and the business closures have had the biggest impact on the restaurant and hospitality business in New Mexico. Restaurant owners who don’t have a liquor license will be able to sell liquor with only a yearly fee is an attractive possibility and will result in much-needed business. It’s likely the demand for Interlocal Dispenser Licenses will continue even with more licenses are available once the economy rebounds. No doubt there will be more and more venues and restaurants who will want to sell liquor.

The approach being taken by HB 255 with the issuance of Restaurant B Licenses is a step the right direction, but more needs to be done. The legislature should make it clear that there are no property rights vested in the new licenses, they must be renewed yearly and if not renewed, they revert back to the state. A holder of a Restaurant B license should be strictly prohibited from selling or leasing the licenses, otherwise the State is creating another market as an unintended consequence.

In the wake of the May 25, 2020 killing of African American George Floyd by a Minneapolis police officer who knelt on Floyd’s neck to subdue him, a Black Lives Matter Movement is sweeping states across the country calling for police reform at all levels. New Mexico is no exception.

The 2020 New Mexico legislature is well beyond the half way point of its 60 day session. There are numerous police reform bills making their way through the legislature. One of the more contentious is the Civil Rights Bill. This blog article is a republication of a New Mexico In Depth story followed by this blogs additional commentary and analysis relating to the Civil Rights Act.

NEW MEXICO IN DEPTH

The below story was originally published by New Mexico In Depth on March 2 and was written by Ted Alcon. Ted Alcorn is a writer whose work has appeared in The New York Times, The Atlantic, and The Lancet. He lives in New York City and was raised in New Mexico. For New Mexico In Depth, he’s written about the Hepatitis C epidemic in New Mexico prisons; criminal justice and policing; public health and economic mobility.

The link to the story is at the end.

HEADLINE: Police reform bills sweep the virtual statehouse, but outcome uncertain

By: Ted Alcorn, New Mexico In Depth

“A year of tumult over race and policing is coming to a head in New Mexico’s busy legislative session.

Advocates remained optimistic. On her way to testify in support of Lopez’s bill, Maestas wrote in a text message: “It is not easy to keep speaking, but until things change, it is necessary.”

The link to the full “New Mexico In Depth” article with photos is here:

https://nmindepth.com/2021/03/02/police-reform-bills-sweep-the-virtual-statehouse-but-outcome-uncertain/

DINELLI COMMENTARY AND ANALYSIS

Many argue that a New Mexico Civil Rights Act is needed to stop the “culture of aggression” or systemic racism and stop the excessive use of force or deadly force by law enforcement. When it comes to the Albuquerque Police Department (APD), Albuquerque is struggling to get a handle on the problem.

For the past 6 years, APD has been under a federal court consent decree that mandates 271 reforms that APD and the city are still struggling to implement under the watchful eye of a federal judge and a federal court appointed monitor. Albuquerque has paid out upwards of $64 million dollars over the last 10 years for excessive use of force and deadly for cases and civil rights violations stemming from a “culture of aggression” found by the Department of Justice (DOJ).

COSTLY PAYOUTS NOT EXAGGEREATED

The financial impact on government agencies is in no way being exaggerated by the Municipal League nor the Association County Governments.

The City of Albuquerque, Bernalillo County and the State have paid out large judgments costing millions, especially for police use of deadly force. Just 4 cases have cost $21 Million in out of court settlements for law enforcement use of deadly force cases. Another case involving the death of a child and the State’s Children Youth and Families Department has cost the state at least $1million.

Those cases reflect the current system does in fact work, those who get injured do get their day in court and they get compensated. Following is the listing of 5 such cases:

1. On January 27, 2014, it was reported that a $10.5 million dollar judgment that was appealed by the City of Albuquerque was settled by the city for $7.5 million for the police shooting and killing of Kenneth Ellis, II. In 2010 US Army Veteran Kenneth Ellis, II, was shot and killed by an Albuquerque police officer. Ellis had a gun pressed against his temple when he was shot in the neck. Mr. Ellis had been stopped at a convenience store on a false suspicion of committing a crime. Ellis was a veteran of the Iraq War who was suffering from post-traumatic stress disorder (PTSD). The Court found the City clearly liable ruling Mr. Ellis was only a danger to himself. Notwithstanding, then Lieutenant Harold Medina, who is now the APD Interim Chief, authorized the use of deadly force. Medina was never disciplined for his failed leadership in the case.

https://www.koat.com/article/report-city-agrees-to-settlement-in-ellis-case/5053797

2. On July 15, 2015, the city has agreed to pay $5 million to the family of James Boyd, a homeless camper who was shot and killed by Albuquerque police in the Sandia Foothills on March 16, 2014. Boyd was armed with a knife in each hand, a 15-hour standoff occurred and 2 SWAT Officers shot him dead after flash bangs were detonated and the K-9 Unit was dispatched. The shooting made national headlines with police lapel camera footage capturing the incident. The two SWAT officers were charged criminally, with one officer retiring. A jury could not reach a verdict on the murder charges and the charges were dismissed.

https://www.abqjournal.com/610827/albuquerque-reaches-settlement-in-lawsuit-over-james-boyds-death.html

3. The January 18, 2017, a $5 Million settlement was made with the family of Mary Hawkes, a 19-year-old woman who was shot and killed by police during a foot chase in 2014. Hawkes was shot in the back as she fled. The settlement resolves the lawsuit filed by her family against both the city and then APD officer Jeremy Dear who at the time did not have his body camera on.

https://www.abqjournal.com/1120552/hawkes-family-settles-lawsuit-fatal-apd-shooting.html

4. On March 7, 2020, it was reported that the Bernalillo County Sheriff’s Office agreed to pay the family of Elisha Lucero, 28, $4 Million to settle the case. Lucero was shot in front of her family’s south valley home after a family member called 911 in July of 2019. Lucero’s family said she struggled with mental illness, the sheriff says Lucero charged at deputies with a knife. The BCSO officers were not wearing body cameras. Lucero was shot 27 times.

https://www.kob.com/albuquerque-news/family-of-elisha-lucero-settles-case-with-bcso-for-4m-/5667056/

5. In 2013, 9-year-old Omaree Varela was kicked to death by his mother. Litigation was filed which accused two social workers and the state “Children, Youth and Families Department of violating Omaree’s rights by placing him in a dangerous home. A federal judge dismissed the lawsuit in 2016 citing qualified immunity for the government employees which hinged on whether the social workers knew or should have known that their conduct would violate the child’s clearly established rights. Notwithstanding the federal court dismissal, the case continued in State Court and the case was settled in a confidential settlement with the terms of the settlement not disclosed. It’s likely the case was settled for at least $1 million under the New Mexico Tort claims act.

https://www.abqjournal.com/2357524/notorious-child-abuse-case-cited-in-civil-rights-debate.html

NO INDIVIDUAL ACCOUNTABLITY PROVISION IN NM CIVIL RIGHTS ACT

Absent from the Civil Rights Act passed by the House and now being considered by the Senate is any provision that would actually hold a government employee truly liable and accountable for damages they have caused another. All the act does is create a cause of action, prohibits qualified immunity and mandates government to pay. There is no personal liability nor other types of penalties to hold the individual employee accountable for wrongful conduct and violations of civil rights and constitutional rights.

Absent from the legislation is any preventative measures directed at the government employee or services such as training, expanded behavioral health services and decertification’s and terminations of the employee. All that the legislation provides for is to pay out claims with no provisions that would prevent violations from happening in the first place.

Then there is the matter as to what extent do you want to hold a government employee personally liable for violations of constitutional rights? Do you make that person individually, jointly or severally liable to pay damages awarded? Should government pensions be forfeited? There are options many would likely feel go too far and are just punishment and not restitution while others would say it is justified if a person is dead because of the negligent conduct of the government employee.

Other types of penalties could easily be included such as mandatory termination from government employment, suspension of professional licenses such as licenses to practice law, medical licenses, teacher licenses, law enforcement licenses and certifications and trade licenses all issued and regulated by the state under existing law.

As it stands now under the proposed civil rights act, government will still bear the responsibility to defend and pay the judgments and settlements, and in turn its the taxpayer who is paying at the expense of other essential services such as education and social services. If accountability is truly what the Civil Rights Act is intended for, and what plaintiff trial attorneys want, it sure does look like the real goal is to make recover a lot easier and the award of attorney’s fees from a deeper pocket without having to prove a case in court before a judge or jury.

From a practical standpoint, it makes little or no sense to enact a Civil Rights Act that creates a new cause of action for violations of state constitutional rights by government employees, abolishing qualified immunity only to have a Tort Claims Act that mandate a defense and payment of judgments for damages.

It appears with the enactment of a Civil Rights Act as proposed, damage to a plaintiff, the liability of a government employee and the taxpayer wind up in the exact same place as to who pays for the damages under the Tort Claims Act. The only benefit of such legislation is to make recovery in state court a lot easier than in federal court.

On Friday, February 5, the City of Albuquerque and the Department of Justice (DOJ) filed a “Joint Motion For Entry of Stipulated Order Establishing An External Force Investigation Team” (EFIT) in the 2014 case filed by the DOJ against the City and the Albuquerque Police Department (APD) for civil rights violations and excessive use of force and deadly force.

According to the Motion and Order, the EFIT team will train APD Internal Affairs investigators on how to properly investigate uses of force instances by APD police officers. According to the approved order, the City will ensure that APD maintains at least 25 force investigators assigned to the APD Internal Affairs unit unless and until APD can demonstrate by an internal staffing analysis that fewer investigators are necessary to timely investigate uses of force by APD Officers.

A link to the Motion and the Stipulated Order is here:

https://drive.google.com/file/d/1DO2UyAGKf5Srw50Y9DcYCmuX3WzESukC/view<

On Friday, February 26, U.S. District Judge James Browning held a hearing and approved the Stipulated Order between the city of Albuquerque and the DOJ. Both the City and the DOJ insisted that time was of the essence to allow the City to issue Request For Proposals (RFP) to hire EFIT members by contract. Judge Browning signed the Stipulated Order but said he intends to issue a written opinion on the matter in April giving his findings based upon what was brought out during the hearing. Under the approved order, the city will hire an administrator who will then hire a number of investigators for EFIT.

According to the approved order, the city will seek to hire an administrator by early May and then start hiring the team. According to the approved order, the city will attempt to return full responsibility to the internal investigators within 9 months but that time frame could be extended, if needed.

The order requires the outside investigators to accompany internal affairs detectives to all scenes where an APD officer uses force on a person that causes injury, hospitalization or death. The external investigator will be privy to all evidence, documents and investigative notes and will evaluate the quality of the internal investigator’s work and notify APD and attorneys if there are any deficiencies.

EVENTS LEADING UP TO EFIT

It was on Friday, October 6, 2020, that Court appointed Federal Monitor Ginger told Federal District Court James Browning:

“We are on the brink of a catastrophic failure at APD. … [The department] has failed miserably in its ability to police itself. … If this were simply a question of leadership, I would be less concerned. But it’s not. It’s a question of leadership. It’s a question of command. It’s a question of supervision. And it’s a question of performance on the street. So as a monitor with significant amount of experience – I’ve been doing this since the ’90s – I would have to be candid with the Court and say we’re in more trouble here right now today than I’ve ever seen.”

On Friday, December 4, 2020 during an all-day status conference hearing on the 12th Compliance Audit Report of the APD reforms mandated, it was revealed publicly for the first time that the City and the DOJ were negotiating a “stipulated order” for court approval that would create and External Force Investigations Team (EFIT).

During the hearing, Paul Killebrew, special counsel for the DOJ’s civil rights division, said that after the 12th Federal Monitor’s report was released on November 2, the DOJ and the City realized that something had to be done. If not agreed to by the city, the DOJ would have to take very aggressive action. Killebrew told Judge Browning:

“The city agreed the problems were serious and needed to be addressed … that’s significant. If we had gone to the city and the city disagreed with our picture of reality, and had they not been willing to address the problem we identified, I think we would be in a different posture … We might have needed to seek enforcement action over the city’s objections.”

During the December 4 status conference hearing, Special Counsel for the DOJ’s Civil Rights Division Paul Killebrew said:

“APD has proven over and over again its agility to avoid the requirements of the CASA.”

During the February 26 hearing to approve the stipulated order, Paul Killebrew told the court the motion was necessary because after 6 years the police department is still not holding officers accountable for using force that is out of policy. Killebrew told Judge Browning:

“…[W]hat we have is a city that has failed to comply with that court order over and over and over again. It not an option right now to do nothing. If we sit back and wait, using all the tools that we have already been using, I don’t know why we would expect things to change on their own. The sense of the United States when we received the monitor’s report was that additional interventions were required.

When we read [the Independent Monitor’s 12th report], we believed that there were likely grounds for contempt, and that we could probably make a good case for a receivership, at least as it regards serious force investigations. This is essentially something short of a receivership, but far more extensive than what is occurring now. What we’re talking about is having external folks assisting Albuquerque investigators in each investigation to ensure that those investigations identify out-of-policy force and to ensure that there is a strong factual record available so that policy violations can be identified and that officers can be held accountable. That is simply a nonnegotiable term of the consent decree. We must have officers held accountable for out-of-policy force, and after six years, we cannot wait for that to happen any longer.”

https://www.abqjournal.com/2363867/judge-signs-off-on-team-of-outside-investigators-to-help-apd.html

PARTIES REJECT CHANNEL 7 AND POLICE UNION FALSE CLAIMS

On February 4 and February 11, Channel 7 broadcast highly critical reports of the DOJ consent decree in its Target 7 reporting. Both reports singled out the Federal Monitor and the reform process under the Court Approved Settlement Agreement (CASA) as the reason for the city’s spike in violent crime rates.

In the February 11 Target 7 report Shaun Willoughby, President of the Albuquerque Police Officers’ Association said:

“The whole [reform effort] system is set up to fail and the taxpayers and the people that live in this community like me and my family are the ones that are taking the brunt of [violent crime]. … Really look at this process. … It is absolutely out of control. … The entire department and the processes within it are out of control. Your officers are running out the door. Really look at every single state or agency that’s been involved in this process. … What is happening? Did it bring harmony and trust with the community? I don’t think so.”

Willoughby was essentially blaming the DOJ reforms for the city’s high crime rates in Albuquerque which is a false narrative .

Links to related blog articles on the KOAT TV news stories are here:

https://www.petedinelli.com/2021/02/15/apd-police-union-spreads-false-claims-that-casa-reforms-increase-abqs-crime-rates-and-objects-to-outside-force-review-team-as-a-party-to-lawsuit-police-union-contacts-with-press-undermine/

https://www.petedinelli.com/2021/02/10/target-7-searches-for-scandal-on-federal-court-monitor-finds-nothing-reports-millions-spent-on-reforms-fails-to-report-apd-management-and-police-union-reason-for-costly-delay/

During the February 26 hearing to approve the Order authorizing the EFIT, Judge Browning took note of the KOAT TV news reports as well as Albuquerque Journal articles. The Judge also disclosed that the court had received correspondence from citizens making the same accusation. Judge Browning asked the attorneys representing the City, the DOJ and the Police Union point blank if they thought that the Court Approved Settlement and the reforms were the cause of the increase in City’s high crime rates.

According to a transcript of the February hearing, Judge Browning asked the following question of DOJ United States Attorney Paul Killebrew:

“I think this week we saw on the front page of the Albuquerque Journal that our violent crime rate is rising, and concerns about that. And there has been some suggestion by people in the news media and perhaps the police association and others, letters I’ve received, that this consent decree is the cause of crime in the community. I know you’re part of the Department of Justice, and they were just in here all morning fighting crime. So what’s your thoughts about the impact of this consent decree and perhaps additional costs as a result of this EFIT on the rising violent crime in Albuquerque?”

Mr. Kilebrew responded as follows:

“… [W]hether a city’s investment in a consent decree is causing crime, I am dubious about that prospect. The research that’s out there which has looked for correlations between crime trends and cities that have consent decrees does not show this kind of correlation. So I am doubtful that this correlation really exists. For decades and decades it was a department that did not invest in accountability of its officers. They weakened its [Internal Affairs] IA structure, they did not appropriately staff its IA department, and so now, when they’re under a court order that requires those structures to have integrity, it requires a very large up-front investment, larger than they have made in the past. And that is simply, again, not negotiable. It’s unfortunate that we’re in a situation where they now have to make this large investment, but it was unavoidable ultimately if they’re going to comply with the law.”

Judge Browning asked the Police Union Attorney Fred Mower if the consent decree was causing the the city’s high crime rates in the following manner:

“… All right. Let me ask you, Mr. Mowrer, you were very careful both in your issues and concerns and then your motion opposing the joint motion not to get into this area, but I have watched Mr. Willoughby’s comments publicly, and I think they’ve been most pronounced by Nancy Laflin on Channel 7, that the consent decree and then, in addition, this additional layer that we are laying on top with the EFIT is contributing or even a primary or major cause of the rise of crime in the community. Is that the position of the police association or your views, that that’s the reason that crime is rising is because of this consent decree or this EFIT?

Attorney Fred Mower answered the court as follows:

“Well, Your Honor, I think to simplistically state it like that, no. I don’t think the APOA can take the position that this consent decree that’s gone on, as Mr. Killebrew has indicated, going on seven years now, and the monies, the millions of dollars that have been spent, and now this new proposal with unidentified costs is a driver of what the crime rate is happening in this town. … I can’t say, and I don’t think it’s easy to prove that the money being spent here is what’s driving crime in Albuquerque. I think we’re like a lot of major cities. We’re facing dynamics because of just the city, closeness to cartel issues, closeness to issues concerning violent crime in a lot of major cities.

MR. MOWERY: Your Honor, as I’ve kind of indicated, I believe in fairness to all. There are multiple factors. I would say that the last one you just raised is an issue; that there is — the lack of bail bonds and quick release of individuals who are accused of violent crimes is contributing. I think the access and lack of control of arms, weapons, is a problem. I think that — and I hate to go this broad, but, Your Honor, I think there is a breakdown in our society in some ways of our morals, discipline, and control which is contributing. I think the proclivity of drugs present in the city of Albuquerque is contributing to this. There is a factor of mental illness in the city of Albuquerque. There are — I know you’ve seen, Your Honor, as you drive the city streets a lot of homeless people downtown. And all big cities have this problem. But I think there are multiple, multiple factors that are contributing to this, and that’s just a very short list. … ”

The Police Union attorney made it clear he was not speaking for the Union President but for his client the Police Union itself. The police union attorney’s response came as a surprise to many in that it was Police Union President Shaun Willoughby who last month made the serious accusation the CASA reforms are responsible for the city’s high crime rates. Sources have confirmed that the Union President or union supporters solicited Channel 7 to do both investigative reports providing the station with the false narrative.

Albuquerque City Attorney Estaban Aguilar had this to say about the accusation that the consent decree was causing an increase in crime:

“… I want to be sensitive to the comments that we hear publicly that consent decrees add or increase crime in a particular area and that monitors in general have their own financial incentive for changing the bar or prolonging the process. That isn’t happening right now. You know, I want to be very clear that we do not see that happening. What we see are issues with the review process. As I’ve indicated before, especially to members of the community, the monitor and his team are officers of the Court and we would expect that they will continue to interact with the parties and with the Court with a duty of candor as officers of the Court. If that were not to be the case and we were to find information that would reflect an ulterior motive or an improper motive, we would address that with our partners. That isn’t going on right now. … ”
…

The consent decree has been in place for six years, or a good portion of the beginning phases of that. The APD had not bought inand was not, in my view, taking steps to fully and faithfully execute its obligations under that agreement. The City reset that in 2017 [under the Keller Administration], and essentially started over. ”

RIGHT TO DISMISS CASE

During the hearing, Judge Browning asked Assistant United States Attorney Paul Killebrew if the court had authority to dismiss the case if he wanted to in the following manner:

[W]hat are the chances of this consent decree being tossed out by me or anybody else in this case?

Mr. Killebrew responded as follows:

Good question, Your Honor. I think on the first question, of whether you have the authority to terminate the consent decree sua sponte, I think you do, because you have an ongoing obligation to ensure that this consent decree is fair, reasonable, adequate, and not the product of collusion. And I think if evidence came to light that this consent decree failed to meet those criteria, it would be reasonable for the Court at least to request briefing from the parties on those issues that you could make a considered ruling on it.

Both the City and the DOJ requested that the court sign off on the order as presented without any further delay so the process can begin in hiring the EFIT team. The parties could not provide the court what the ultimate cost will be for the EFIT team, but said it would be likely cheaper forcing changes now than after the fact litigation.

COMMENTARY AND ANALYSIS

The court approving the order to create a External Force Investigation Team is disappointing. Where there is a will to obstruct the CASA reforms, APD and the Police Union always find a way and this was even admitted to by the DOJ. The City and the DOJ have failed to learn that lesson after 6 years and upwards of $35 million a year spent on the reform efforts.

By approving the agreed to Order to create the EFIT, Federal Judge Browning has essentially given the City and APD one more opportunity, hopefully their very last chance, to get their act together and get the job done on implementing the reforms. The very real risk is the parties will continue to flop around like fish out of water accomplishing very little, another year will pass, and the engrained APD culture of resistance to the reforms will continue unabated.

It as if APD and its management are once again attempting to run out the clock on another Mayor, this time the Keller Administration, knowing full well the municipal election is on November 2, 2021 and Keller could be out of office. The EFIT gives incumbent Mayor Tim Keller plausible deniability against the accusation that he is not taking action to implement all the DOJ reforms as he promised 4 years ago when he ran. Truth is Mayor Tim Keller for 3 years has allowed a sore to fester when it came to APD’s deliberate attempts to undermine the reform effort while at the same time trying to lay claim that he has done a great job with APD and all the reforms. Things have only gotten worse under Keller and his public relations is a sharp contrast to the truth of what is happening with APD.

The EFIT must be the very last chance for the city and APD to make the DOJ reforms to work. If APD management, the union and rank and file continue with their efforts of “noncompliance”, not overtly, but in a manner to avoid detection and once again using “agility to avoid the requirements of the CASA”, the Federal Court should say enough is enough and hold the city in contempt of court. If that happens, the Court should order the Federal Monitor to take over APD’s Internal Affairs Unit and the use of force investigations.

In the event that the EFIT fails, which is more likely than not, Federal Monitor James Ginger needs to be given full authority over Internal Affairs personnel to the extent of being given direct management and control to issue orders and commands as to how use of force investigations are to be conducted. Then and only then will full compliance with the reforms be achieved.

The 2021 Albuquerque Municipal election for Mayor and City Council has officially started. Election day is Tuesday, November 2, 2021. March 1 is the first day candidates can declare to seek public finance beginning an 8-month election process. The time lines for privately finance candidates are on a later time frame.

The city link listing all deadlines is here:

https://www.cabq.gov/vote/candidate-information/candidate-calendar-for-the-2021-regular-local-election

On the ballot this year will be the office for Mayor and the 5 odd numbered city council districts of the 9 city council seats. The council seats up for election are City Council seats 1, 3, 5, 7, and 9.

PANDEMIC WILL HAVE IMPACT ON ELECTION

Albuquerque’s 2021 Municipal election will be none like the City has ever experienced all because of the COVID-19 pandemic. Under normal circumstance, running for Mayor or City Council is a “contact sport”. Normally, running for Mayor and City Council is a rough and tumble process of dealing with voters and the press. Running for Mayor or City Council it requires very personal contact of going “door to door” to ask for voter’s support, asking for donations, attending house parties and events, attending forums and debate of all kinds.

What will hover over the entire municipal election process is to what extent will candidates for office be able to make personal contact with registered voters to collect qualifying donations for public finance and collect nominating petition signatures. Once thing for certain is the time allotted to collect qualifying donations and nominating petitions signatures is severely limited hinder because of the small percentage of citizens who have been vaccinated. Candidates and volunteers will be running a high risk to collect nominating signatures and qualifying donations. The fact is born out with the statistics for the state and county as to vaccination rates.

Following are the most current statistics on the state and county’s vaccination rates

BERNALILLO COUNTY

Percent of residents fully vaccinated: 11.7%

Percent partially vaccinated: 19.2% (106,069 residents)

(Based on a Bernalillo County Population of 551,688)

The link to Bernalillo County statistics is here:

cvvaccine.nmhealth.org

NEW MEXICO

As of February 24, the Center For Disease Control Reports as follows for the entire state of New Mexico:

19.8% of New Mexico’s population has received 1 or more doses for covid-19 (414,796 residents)

9.7% of New Mexico residents have received 2 doses (203,441)

New Mexico’s population in 2019 was 2,096,829 million

MID MAY OR LATE JUNE WHEN VACCINE ACCESS AVAILABLE TO ALL

On Tuesday, January 23, it was report that White House health advisor Dr. Anthony Fauci said that he expects most Americans will have access to a Covid-19 vaccine by mid- to late May or early June. That’s a slight delay from previous predictions of late March to early April. The delayed timeline comes after Johnson & Johnson, which has applied for emergency use in the U.S., cut its initial supply estimates.

https://www.cnbc.com/2021/02/16/dr-fauci-slightly-delays-timeline-for-widespread-vaccine-availability-in-the-us-to-may-.html

PUBLIC FINANCE CANDIDATES FOR MAYOR

From April 17 to June 19, 2021, candidates for Mayor must gather 3,000 signatures from registered voters within the City.

From April 17 to June 19, 2021, Candidates for Mayor can collect the $5.00 donations and must collect 3,779 donations. Candidates for Mayor are only given 8 weeks to collect the 3,779 qualifying donations of $5.00. In 2017, there were 8 candidates for Mayor with only 1 candidate qualifying.

PUBLIC FINANCE CANDIDATES FOR CITY COUNCIL

From May 31 to July 5, 2021, candidates for City Council must gather 500 qualifying signatures from registered voters within the district the candidate wishes to represent.

From May 31 to July 5, 2021, or approximately 4 weeks Candidates for City Council can collect the $5.00 donations only from May 31 to July 5, 2021, or approximately 4 weeks. There are varying number of $5.00 donations for each council district.

PRIVATELY FINANCED CANDIDATES FOR MAYOR AND CITY COUNCIL

From June 8 to August 10, 2021, Privately Finance Candidates for Mayor must gather more than 3,000 signatures from registered voters within the City.

From July 6 to August 10, 2021, Privately Financed Candidates for City Council must gather more than 500 signatures from registered voters within the district the candidate wishes to represent.

Privately financed candidates have no fundraising or spending limits. Privately financed candidates can raise and are free to accept campaign contributions from whatever legal source they want including contributions from individuals, businesses and corporations within the city, county, state or out of state and there is no city voter registration required.

There is no limit on what privately financed candidates can spend on their campaigns. However, there are limits on individual contributions privately financed candidates can accept from donors. Specifically, Article XIII, Section 4(e) limits the total contributions from any one person, with the only exception being the candidates themselves, and the private contribution cannot exceed 5% of the salary of the elected official at the time of filing the Declaration of Candidacy.

You can find these timeframes here:

http://www.cabq.gov/vote/candidate-information/privately-financed-candidates

DISCLAIMER: This blog article is not a complete outline of all the mandatory requirements for the 2021 municipal election. Any candidate for municipal office should rely on the candidate guide as the definitive requirements and deadlines, with links provided below.

CANDIDATES FOR MAYOR

Over 2 years ago, Progressive Democrat Mayor Tim Keller made it known in a November 5, 2018 election radio election news coverage that he intends to run for a second term. In mid 2019, Conservative Democrat Bernalillo County Sheriff Manny Gonzales made it known to new sources that he intends to run for Mayor also telling supporters he would run on the platform of bringing down crime, dismissal of the DOJ Federal Lawsuit demanding APD reforms and consolidation of APD and the Sheriff’s office.

FIVE CITY COUNCIL POSITIONS

Albuquerque City Councilors are paid $30,600 annually and the Council President earns $32,600 annually. They are also eligible to join the Public Employees Retirement Association and earn a pension after they have served 5 full years. Health Insurance is also made available to them.

The City Council incumbents are as follows:

District 1: City Councilor Lan Sena (Democrat) : She represents Albuquerque’s Central West Side. She was appointed to the City Council in March 2020, by Mayor Tim Keller. Sources are saying she is running for a full term.

District 3: City Councilor Klarissa Peña (Democrat): She represents the southwest part of Albuquerque. She was elected to the City Council in October, 2013. Sources are saying she is running for another 4-year term.

District 5: City Councilor Cynthia D. Borrego (Democrat): She represents the Northwest part of Albuquerque. She was elected to City Council in November 2017. Councilor Borrego is the current President of the City Council and sources are saying she is running for a second 4-year term.

District 7: City Councilor Diane Gibson (Democrat): She represents Albuquerque’s mid-heights including uptown and parts of the near northeast heights. She was elected to the City Council in October 2013. Councilor Gibson is the Vice President of the City Council and sources are saying she is NOT running for a second term but that could change if no one emerges to run against her.

District 9: On February 27, City Councilor Don Harris (Republican), first elected to the City Council in 2005, has announced he is not running for another term (as if anyone knows he has been on the council for 14 years). District 9 is the far Southeast Heights and Foothills.

https://www.abqjournal.com/2362329/harris-will-not-seek-fifth-city-council-term.html

2021 CANDIDATE GUIDE

The City of Albuquerque “2021 CANDIDATE GUIDE” provides a detailed candidate calendar of deadlines on pages 6 to 12 of the guide. The Candidate Guide provides the dates and requirements for the filing of campaign finance reports.

The link to the Candidate Guide is here:

http://www.cabq.gov/clerk/documents/candidate-guide-2-0.pdf

DISCLAIMER: This blog article should is not a complete outline of all the mandatory requirements for the 2021 municipal election. Any candidate for municipal office should rely on the candidate guide as the definitive requirements and deadlines

COMMENTARY AND ANALYSIS

The rational for nominating petition signatures and minimum qualifying donations is to determine the viability of candidates and set a minimum bar to qualify for the ballot and to “cull” the slate of candidates under the philosophy only “serious candidates” need run. City hall politicians and incumbents are essentially deciding who are “viable candidates” with the minimum requirements to get on the ballot which is wrong on so many levels. Unless a candidate has a significant volunteer base of supporters, it is not likely many candidates will be able to get the minimum number of $5 qualifying donations or petition nominating signatures.

In the 2017 race for Mayor, there were 8 candidates for Mayor, 5 candidates attempted to collect the $5.00 qualifying donations with only one candidate qualifying for the public finance. In 2013, there was only 1 candidate for Mayor who qualified for public finance, with 2 others attempting to qualify and the incumbent chose to private finance.

There is no question that the COVID-19 Pandemic will have a dramatic effect on any
candidate running for Mayor or City Council. It is more than likely than not many qualified candidates will not run for Mayor or City Council until they get fully vaccinated or simply not run all. The risk of exposure to COVID-19 is still very high. Responsible candidates will likely not be willing to expose their volunteers to gather signatures or donations for that matter.

Only 11.7% of Bernalillo county residents are fully vaccinated against COVID 19 while only 19.2% are partially vaccinated. Most Americans will have access to a Covid-19 vaccine by mid- to late May or early June.

The time frame of mid- to late May or early June for vaccinations availability is very problematic when the time frame to commence collecting donations and petition signatures. Public finance candidates for Mayor can begin on April 17 to collect donations and petition signatures. Public finance candidates for City Council can begin on May 31 to collect qualifying donations and nominating petition signatures.

July 6 is when privately financed candidates can start to collect nominating signatures to get on the ballot and they are allowed to fundraise anytime.

NEWS UPDATE: On March 2, it was reported that City Clerk Ethan Watson “announced [due to COVID-19] new procedures that allow the candidates to collect those signatures online, while also permitting them to still gather them in person. The office is creating a new website, in collaboration with New Mexico Secretary of State Maggie Toulouse Oliver, that will use the Secretary of State’s voter registration database for verification purposes before allowing a signature. The clerk’s office also is updating a second website that allows voters to make $5 contributions for candidates seeking public financing.”

https://www.abqjournal.com/2364765/campaign-season-starts-for-city-races-ex-mayors-seat-and-five-councilor-positions-up-for-grabs.html

LAST THING CITY NEEDS ARE CORONATIONS

The City Council has the authority to expand the time frame in which candidates can collect both petition nominating signatures and the $5.00 qualifying donations and they should. Otherwise, you can anticipate fewer candidates making the ballot or securing the necessary qualifying donations.

The city is facing any number of problems that are bringing it to its knees. Those problems include the corona virus pandemic, business closures, high unemployment rates, exceptionally high violent crime and murders rates, continuing mismanagement of the Albuquerque Police Department, failed implementation of the Department of Justice reforms after a full 6 years and millions spent, declining revenues and gross receipts tax, high unemployment rates, persistent and increasing homeless numbers, a lack of mental health and counseling programs and very little economic development, just to mention a few.

The city can go no longer afford to elect a Mayor and City Council based upon promises and nothing but eternal hope for better times and for a better future. What is needed are elected officials that actually know what they are doing and will make the hard decisions without their eye on the next election or to placate their base.

It is hoped that there will be more than just one candidate opposing all incumbents. What is needed is a healthy debate on solutions and new ideas to solve our mutual problems. Such a debate can only happen with contested elections. It is for these reasons the city council should extend the time to collect nominating petitions and qualifying donations.

The very last thing the city needs is the coronation of an unopposed incumbent Mayor and 5 unopposed city councilors.

Related links are here:

https://www.cabq.gov/vote/candidate-information/publicly-financed-candidates

The link to the 2021 Candidate Guide is here:

https://www.cabq.gov/clerk/documents/office-of-the-city-clerk-2021-candidate-guide-12-30-20-3.pdf

The link to Public Finance General Information is here:

https://www.cabq.gov/vote/candidate-information/publicly-financed-candidates/publicly-financed-candidates-general-information

The link to Election Matching Funds information is here:

https://www.cabq.gov/vote/candidate-information/publicly-financed-candidates/election-matching-funds