On March 11, 2021, Mayor Tim Keller announced the appointment of Lan Sena to the unexpired term of former City Councilor Ken Sanchez for Albuquerque City Council District 1 seat, Albuquerque’s Central Westside. Ken Sanchez passed away on January 1, 2021 and the council term expires December 31, 2021. The District 1 City council seat was on the November 2 ballot for the election to a 4-year term that begins on January 1, 2021.

On November 2, in the race for Albuquerque City Council District 1, Democrat City Councilor Lan Sena, 31, lost to Democrat and former APD police officer Louie Sandchez,(56).

On November 15, a $110 million bond proposal resolution was formally introduced to the City Council. The Gross Receipts Tax (GRT) General Obligation bonds resolution seeks to borrow $110 million to build a upwards of 16 major infrastructure projects around the city. The project list includes more than $45 million for improving parks, open spaces, recreational facilities, a new multi-generation center across from Cibola High School. Another $40 million will be dedicated to public safety projects, including updating the Albuquerque Police Department downtown headquarters north of city hall, the APD academy building, and other public safety facilities.

City Councilor Lan Sena is a co-sponsor of the $110 million bond bill and it requires union involvement in major city construction projects through the use of project labor agreements.

WANTING TO BE SWORN IN BEFORE TERM BEGINS

City Councilor Elect Louie Sanchez is now saying he should not have to wait until January 1, 2021 to join the city council, that he should be sworn immediately replacing Lan Sena so that he can participate in the December 6 city council meeting on the $110 bond package . Like City Councilor elect Dan Lewis, Council Elect Louie Sanchez is saying the 4 incoming councilors should be involved in such significant actions and said:

“This is a great deal of money. … It’s a big decision, and it’s a decision that shouldn’t be rushed.”

Sanchez is arguing that his November 2 election over appointed City Councilor Lan Sena means he is now the district’s rightful representative. He is correct only to the extent that he was elected to the term that begins on January 1, 2022 and nothing more than that. He was not elected to fill the last two months of former city councilor Ken Sanchez term.

Councilor Elect Louie Sanchez is asking City Clerk Ethan Watson to swear him in immediately replacing Lan Sena so that he can participate in the city council’s December 6 meeting where scheduled votes include the $140 major infrastructure spending package. City Clerk Ethan Watson contends that the recent city election legally was intended to fill a four-year council term that starts January 1, 2022 saying there is no vacancy and that Lan Sena is the City Councilor until December 31, 2020.

City Councilor elect Sanchez proclaims:

“According to the rule of law, I should be in office.”

City Councilor Lan Sena for her part said she has no plans to step aside before year’s end and said:

“When I signed up for this job, it was to fulfill the vacancy and the term of our late Councilor Ken Sanchez, and his term would have ended on the 31st of December.”

CITY CHARTER PROVSIONS

City Council Elect Louie Sanchez and City Clerk Ethan Watson are each relying on two separate sections of Article IV of the City of Albuquerque Charter governing the City Council. The two sections are Section 4 dealing with TERMS OF OFFICE and Section 9 dealing with VACANCIES IN OFFICE.

The City Charter Section City Councilor Elect Louis Sanchez relies on is:

“Section 9. VACANCIES IN OFFICE.

(a) A vacancy in the office of Councilor occurs upon the Councilor’s death, disability, recall, resignation, removal or termination of residency in the district represented.

(b) If a vacancy occurs in the office of Councilor, the Mayor shall appoint a registered qualified elector of the district to fill the vacancy. Anyone appointed to fill a vacancy shall serve until the next regular election, at which time a person shall be elected to fill the remaining unexpired term, if any.”

The link to review the city charter provisions is here:

https://codelibrary.amlegal.com/codes/albuquerque/latest/albuqcharter/0-0-0-207#JD_CharterArticleIV

Sanchez argues that the City Charter provision mandates that he take office now since Sena is serving in an appointed capacity. Sanchez contends that the normal timeline for him to take office on January 1, 2022 does not apply to him and that he should be sworn in now and serve the last month of Ken Sanchez’s term.

The City Charter Section City Clerk Eathan Watson relies on is Section 4 entitled TERMS OF OFFICE and it provides as follows:

“The terms of the office of a Councilor, unless sooner recalled or removed, shall begin on January 1 following the candidate’s election and be four years or until a successor is duly elected and qualified. The Councilors may succeed themselves in office. The terms of office of Councilors shall be staggered with four or five districted Councilors elected every two years.”

City Clerk Watson argues that Louie Sanchez was elected to serve a specific term that begins on January 1, 2022 and he was not elected in a special election to serve any portion of an unexpired term the result of a vacancy.

BOTH BERNALILLLO COUNTY CLERK AND SECRETARY OF STATE MUST CERTIFY

Unlike all past municipal elections, the November 2 municipal election was administered by the Bernalillo County clerk and not the City Clerk. It was in 2019 that the New Mexico Local Election Act was passed by the State Legislature. The act mandates that all regular local election shall be held on the first Tuesday after the first Monday in November of each odd-numbered year, including municipal nonpartisan races such as Albuquerque Mayor and City Council. The act mandates that all local elections be consolidated on one ballot included municipal elections for mayor, city council, elected boards of educations, elected conservancy districts and flood control districts such as AMAFCA and bond elections.

https://codes.findlaw.com/nm/chapter-1-elections/nm-st-sect-1-22-3.html

It is well settled law that an elected official cannot be sworn into office unless and until the election is certified by the appropriate county and state officials. The Bernalillo County Clerk’s Office has certified the November 2 election results and the Bernalillo County Commission has voted to accept those results. The Bernalillo County Commission has forwarded those results to the Secretary of State. The Secretary of State has yet to certify the state wide election results, including the November 2 municipal election. No one in the state can be sworn into office until the Secretary of State completes the canvassing of all election held in the state

City Councilor Elect Louis Sanchez says:

“According to the rule of law, I should be in office” and proclaims he is considering filing a court action if needed to be sworn in. Sanchez said if he succeeds in taking office prior to Monday’s meeting, he would support delaying a vote on the bonds, adding that the incoming councilors should be involved in such significant actions.

In response to the threat of litigation by Sanchez, City Clerk Watson said:

“The City Clerk has made clear in correspondence with Councilor-elect Sanchez that [his] term begins on January 1, pursuant to state law. … [the County Clerk’s Election proclamation] made clear that that term was four years, not more than four years”. [I] cannot swear in any new councilors because the secretary of state has not yet issued a “certificate of election” to any Albuquerque candidates who won on November 2.

https://www.abqjournal.com/2450979/council-race-winner-pushing-to-expedite-swearing-in.html

COMMENTARY AND ANALYSIS

When city councilor elect Louie Sanchez says “According to the rule of law, I should be in office” he is seriously mistaken when it comes to his own election and to the City Charter provisions. The “rule of law” dictates that his term begins on January 1, 2022 and not any time sooner. The “rule of law” also dictates he can only be sworn in when his election is certified by both the Bernalillo County clerk and the Secretary of State and then and only then can he assume office.

City Councilor elect Sanchez was not elected in a special election to fill a vacancy on the city council. The language of Section 9 (a0 and (b), “VACANCIES IN OFFICE, deals with “special elections” to fill a vacancy and state as follows: .

(a) A vacancy in the office of Councilor occurs upon the Councilor’s death, disability, recall, resignation, removal or termination of residency in the district represented.

(b) If a vacancy occurs in the office of Councilor, the Mayor shall appoint a registered qualified elector of the district to fill the vacancy. Anyone appointed to fill a vacancy shall serve until the next regular election, at which time a person shall be elected to fill the remaining unexpired term, if any.” which is exactly what City Councilor Lan Sena was legally appointed by Mayor Tim Keller to fill the unexpired term of Ken Sanchez. Councilor Lan Sena has every right to carryout her duties and even vote on matters. Councilor Elect Sanchez cannot replace her unless she decides to step down and only then if he is appointed to replace her by Mayor Tim Keller.

If you follow the defective legal analysis that Councilor elect Sanchez should immediately replace Lan Sena to a logical conclusion, the identical argument could be made that City Councilor elect Dan Lewis should be sworn immediately to replace Incumbent Cynthia Borrego who Lewis defeated on November 2 and that is just not going to happen.

ONE MUST LEARN TO PICK AND CHOOSE BATTLES CARFULLY

City Councilor Elect Louie Sanchez has a number of options available short of trying to force himself on the city council and trying to replace Lan Sena.

When City Councilor elect Louie Sanchez says he is considering litigation, ostensibly he is relying on very poor legal advice or someone who simply does not have an understanding of the city charter, how it operates and the civil litigation process. Simply put, with less than one month before taking office, and 3 days before the December 6 city council vote, there is not enough time to file any sort of meaningful litigation, get the case assigned to a judge and have an evidentiary hearing. It is more likely than not that most, if not all, Second Judicial District Judges would disqualify themselves from hearing the case as they did with the appeal of Sheriff Manny Gonzales on the denial of public financing by the City Clerk. In other words, litigation would be a waste of time and money and the issue will be rendered moot with the passage of time.

https://www.abqjournal.com/2450979/council-race-winner-pushing-to-expedite-swearing-in.html

The bond proposal resolution is scheduled to be voted on by the full city council on December 6. To pass, because it involves a bond debt that normally is voted on by the public, the resolution must have a super majority of 7 out of 9 votes on the City Council. Its passage is dubious at best given the fact that Republican City Councilors Trudy Jones and Don Harris will likely vote against it wanting to wait and find out if Republicans have a majority on the council after the December 6 run offs in Districts 7 and 9. Further Democrat City Councilors Isaac Benton and Pat Davis have argued the bill’s proponents are rushing a vote before a major council transition. Councilor Benton went to far as to say the initiative does not pass the smell test.

Councilor Elect Sanchez could appear before the city council on December 6 and voice his concerns. He also has the option of lobbying his future colleagues on the council to vote it down as well as ask Mayor Keller as a sign of good faith to withdraw his support of the measure and even veto it if it passes.

Even if the City Council were to pass the bond package on December 6 and Keller signs off on the resolution, there is always the option for the new city council that takes office on January 1, 2022 to vote to reconsider the bond package or for that matter just to repeal it and start all over.

The point is, City Councilor Elect Louie Sanchez needs to learn to pick and choose his battles carefully to accomplish anything, otherwise he is going to have 4 miserable years on the city council especially if when he sets the tone of assuming office by having another city counselor removed for his own benefit.

NEWS UPDATE

On December 4, it was reported that City Councilor elect Louie Sanchez has received his formal “certification of election” from the Secretary of State. For that reason he proclaims he should be sworn into office immediately saying:

“The law is the law, and appointee City Clerk Ethan Watson must abide by it to rightfully and legally swear me into office today as the elected District 1 City Councilor replacing the Keller appointee currently filling the seat.”

In response, Albuquerque City Clerk Ethan Watson said the Secretary of State certification does not change anything and he had this to say:

“The City Clerk has made clear that Councilor-elect Sanchez’ term begins on January 1, pursuant to state and local law. The County Clerk’s Election Proclamation also made clear that that term Councilor-elect Sanchez ran for was 4 years, not more than four years, or to fill an un-expired term.”

COMMENTARY AND ANALYSIS

City Councilor elect Louis Sanchez continues to try and practice law without a license. Yes, “the law is the law” and in his quest to be sworn in before his term begins, the “law is the law” that he cannot be sworn in until January 1, 2021 when his elected term begins. City Councilor Elect Sanchez ostensibly believes he is above the law by demanding City Clerk Ethan Watson violate the law and swear him in before his term begins on January 1, 2022.

The link to quoted source material is here:

https://www.abqjournal.com/2451463/city-councilor-elect-gets-formal-certification.html