The blog article is an in-depth report on the millions of overtimes paid to a select few police and fire responders over the past 4-years all under the watch of Mayor Tim Keller and the City Council. The blog article is longer than most blog articles in order to get a clear and concise picture of what has been going on within the Albuquerque Police Department and the Albuquerque Fire and Rescue Department and abuse of overtime pay.

BACKGROUND ON CITY PERSONNEL

The City of Albuquerque employs upwards of 5,947 City Hall employees that are divided into “classified employees” and “unclassified employees”. The city has 26 separate departments that provide essential services.

Classified employees are covered by the city’s personnel rules and regulations and have vested rights including retirement benefits, sick leave and annual leave benefits and can only be terminated for cause. Disciplinary actions such as suspensions, demotions and terminations can be appealed by classified employees to the City Personnel Board.

The City of Albuquerque pays an average of $17.61 an hour to City Hall employees or $36,628.80 a year depending on the positions held and required education level and training levels. (40-hour work week X 52 weeks in a year = 2,080 hours worked in a year X $17.61 paid hourly = $36,628.80)

https://www.payscale.com/research/US/Employer=City_of_Albuquerque/Hourly_Rate

https://www.cabq.gov/humanresources/city-employment-opportunities

UNCLASSIFIED VERSUS CLASSIFIED

There are 589 full time “unclassified” positions at City Hall, who are “at-will” employees who can be terminated “without cause”.  They work at the pleasure of the Mayor, the City Council or Department Directors. “Unclassified employees” or exempt employees do not have the same vested rights classified employees have. They have no appeal rights to the City Personnel Board for disciplinary action so when they are fired, they are in fact terminated with little or no recourse.

All City Hall Department Directors are “unclassified employees” and serve at the pleasure of the Mayor and can be terminated without cause. City Department Directors as “at will employees” are paid yearly salaries but their salaries are broken down in hourly rates only for payroll purposes.  The average pay for Department Directors under Keller averaged $116,000 but after 5 years, it  is now $160,000  a year depending on experience and background. The 27 Department Directors are not paid time and a half when they work more than a 40-hour work week.

TOP CITY HALL WAGE EARNERS

At the end of each calendar year, City Hall releases the top 250 wage earners based on hourly wages paid. The list of 250 top city hall wages earners is what is paid for the full calendar year of January 1, to December 31 of any given year.  The City of Albuquerque has 26 separate departments.  It is the Albuquerque Police Department (APD) and the Albuquerque Fire and Rescue Department (AFRD) that have the overwhelming majority of assigned hourly wage employees in the top 250 city hall wage earners.  The lopsided number of APD sworn police officers listed in the top 250 paid city hall employees is directly attributed to the excessive amount of overtime paid on top of base pay to sworn police officers and firefighters. Police and Fire first responders are paid longevity pay and police are paid bonus pay, but such pay are not included in the base hourly pay for purposes of calculating the top 250 wage earners.

2022 BREAKDOWN OF 250 TOP PAID CITY HALL EMPLOYEES

Hourly pay for an APD Police Officer is between $29 an hour right out of the APD Academy, or $60,320 yearly. According to the police union contract, the hourly pay rate for a police officer is $31.50 an hour or $65,520 yearly, depending on the accumulated years of service. The hourly pay rate for APD Sergeants is $35 an hour, or $72,800 a year. The hourly pay rate for APD Lieutenants is $40.00 an hour or $83,200 a year.

In 2022, the breakdown of the 250 top paid city hall employees reveals they were paid between $124,540.80  to $235,992.53.  APD has 143 of the top paid 250 wage earners employed that include Patrol Officers First Class, Senior Police Officers, Master Police Officers, Sergeants and Lui tenants. Lieutenants, although management, are allowed to be members of the Police Union and are entitled to be paid time and a half for overtime.  The Albuquerque Fire and Rescue Department has 51 of the top 250  spots.  No other city department has more than 7 people in the top paid 250 list. 

The amounts paid to the overwhelming majority APD and AFRD personnel in the top 250 city hall employees are double and at times triple the hourly yearly wage of those employees.  The excess in wages earned is directly attributed to overtime paid to those employees who are in classified positions.

Albuquerque Fire Rescue Battalion Chief Clinton Anderson is the top wage earner in 2022 having been paid  $235,993 last year.   The amount paid to Anderson is more than twice his base salary.  Six fire department employees ranked among the city’s 10 biggest earners in 2022. The list includes 4  AFRD paramedic lieutenants. Each earned at least $191,000 despite a base salary of $79,000.

The Albuquerque Police Department has only 6 employees among the city’s 20 highest-paid workers.  APD Lt. Justin Hunt with  a base pay of  $83,200 a year was paid $217,646 because of overtime.

TOP 50 PAID CITY HALL EMPLOYEES IDENTIFIED

The 50 top paid City Hall employees, their assigned department, their titles, number of hours worked per week where specified and pay in the list 250 are as follows:

• Anderson, Clinton L,  FD  Fire  Battalion Chief, 40 HR work week listed:  $235,992.53
• Hunt,Justin  APD Police Lieutenant:  $217,646.45
• Ruelas,James L,  FD Fire Paramedic Lieutenant – 56 HR work week listed  $216,214.60
• Rael,Lawrence D, Chief Administrative Officer, $212,143.20J
• Johnson,Brian,  APD-Police Sergeant,   $211,910.59
• Medina,Harold,  APD Chief Of Police,  $204,023.40
• Herrera,Robert,  Fire Paramedic Lieutenant – 40 HR work week listed  $196,302.72
• Do,Si  Fire Paramedic  Driver – 40 HR work week listed,  $193,550.10
• Tapia,Jacob  Fire Paramedic  Lieutenant – 40 HR work week listed $191,713.61
• Ruiz,Thomas  Fire  Paramedic Lieutenant – 40 HR  work week listed $191,486.71
• Deal,Craig  Fire  Captain – 40 HR  $189,928.60
• Longdon,Jonathan -Fire Paramedic  Lieutenant – 40 HR work week listed $187,974.67
• Montero,Alex  Fire Battalion Chief – 56 HR work week listed  $186,215.18
• Martinez,Dominic  –  APD Police Sergeant  $184,381.03
• Hernandez,Michael – APD Police Lieutenant  $184,257.71
• Webb,Zachary  Fire  Paramedic  Lieutenant – 40 HR work week listed $184,195.20
• Ortiz,Christopher  Fire Paramedic  Battalion Chief – 40 HR work week listed $182,148.07
• Price,Bryan – Police Lieutenant $176,946.42
• Pholphiboun,Phetamphone B, APD  Police Sergeant  $176,610.22
• Dalton-Theodore, Maia, Fire AFR Behavioral Health Director  $175,347.20
• Bhakta,SanjayFA-Finance Admin Svc Chief Financial Officer  $175,233.60
• Garcia,Eric  APD  2nd Deputy Chief  $174,729.82
• Rosenbaum,NilsPD-  APD Dir of Behavioral Sciences  $174,454.40
• Laprise,Robert TFD-Fire Paramedic Captain – 42 HR work week listed $173,519.63
• Meisner,Nathaniel AFD-Fire  Deputy Fire Chief – 40 HR work week listed $172,979.53
• Molina,Sonny  APD Police Sergeant  $172,208.49
• Gallegos,Gene, Fire  Chief – 40 HR work week listed $171,493.24
• Griego,Jon   APD Police Deputy Chief  $171,079.75
• Hernandez,Francisco  APD  Police  Sergeant  $169,286.04
• Hernandez,Armando F., APD   Police Sergeant  $168,600.21
• Valentino,Gregory Allen,  APD Police Officer 1C  $168,499.16
• Osterloh,Brian ATI-Technology and Innovation Director  $168,168.15
• Smathers,Michael Jay,  APD 1st Deputy Police Chief  $165,823.72
• Melendrez,Christopher, City Council Services Director  $165,796.80
• Del  Greco,Raymond,  Police Lieutenant $165,646.46
• Walsh,Stephen  APD Police Master Police Officer 1C  $165,330.99
• Chavez,Jose  Fire Paramedic  Driver – 40 HR work week listed $164,350.38
• Pearson, Nicholas, Police Master Police Officer 1C  $163,193.49
• Solis,Brenda, Police Master Police Officer 1C  $163,112.69
• Chavez,Matthew, Police Lieutenant  $162,831.78
• Brown,Joshua  APD  Deputy Chief $162,060.72
• Lopez,Daniel  APD Police Sergeant  $161,900.18
• Rico,Michael  APD Police Sergeant  $161,039.09
• Castillo,David  Fire Battalion Chief – 56 HR work week listed $160,892.65
• Richards,Joshua R.,  APD Police Sergeant  $160,848.95
• Barker,Cecily APD Police Deputy Chief  $160,715.20
• Romero,Kristopher -Fire Deputy Fire Chief – 40 HR  $160,628.48
• Lowe, Cori, APD Police Deputy Chief  $159,775.00
• Sedler,Amy  APD Police Lieutenant  $158,945.28
• Patterson,Christopher APD-Police Lieutenant $158,616.36
• Garcia,Santos  Deputy Fire Chief – 40 HR work week listed $158,084.11

Note that Chief Administrative Officer Lawrence Rael is paid $212,143.20, Chief Financial Officer Sanjay Bhakta is paid $175,233.60 ,  Technology and Innovation Director Brian Osterloh is paid $168,168.15, and City  Council Services Director  Christopher Melendrez  is paid $165,796.80.  They are the only 4 none APD and AFRD employees in the top 50 paid employees. All 4 are paid negotiated salaries and are serving in “at will” unclassified appointed positions.  The number of hours they are required to work for their pay is not listed and they work whatever number of hours it takes to do their jobs without further compensation.

CATEGORY OF PAY BREAK DOWN WITH EMPLOYEE NUMBERS AND AMOUNTS PAID IN 2022

There are 5 full time hourly paid employees in the top 250 paid city hall employees who are paid between $204,023 and $235,992 a year with 3 employed by APD  and 2 employed by the Fire Department.  APD Chief Harold Medina is a salaried paid Department Director who is at will and who is listed as number 6 earning $204,023.

There are 4 full time 40 hourly  paid employees in the top 250 paid city hall employees who were paid between $191,486 and $196,302  a year with all employed by the Fire Department (AFRD).

There are 7 full time hourly paid employees in the top 250 paid city hall employees who were paid between $182,148 and $189,928 a year with 5 employed by the Fire Department and 2 employed by APD.

There are 11 full time employees in the top 250 paid city hall employees who were paid between $171,079 and $176,946  a year with 4 employed by APD and 3 employed by the fire department.  In the list of 11 are 5 at will employees, Chief Financial Officer Sanjay Bhakta paid $175,233, APD 2^nd Deputy Chief Eric Garcia paid $174,729, Deputy Fire Chief Nathaniel Meisner paid $172,979, Fire Chief Gene Gallegos (now retired), paid $171,493 and APD Deputy Chief Jon J Griego paid $171,079.

There are 19 full time employees in the top 250 paid city hall employees who were paid between $160,628 and $169,286  a year with 14 employed by APD and 3 employed by the fire department.  In the list of 19 are 5 at will employees,  APD 1^st Deputy Chief Michael Smathers paid $165,823, City Council Services Director Christopher Melendres paid $165,796, APD Deputy Chief Joshua Brown paid $162,060, Deputy Chief Cecily Barker paid $160,715 and Deputy Fire Chief Kristopher  Romero paid $160,628.

There are 35 full time employees in the top 250 paid city hall employees who were paid between $150,084 and $159,775  a year with  15  employed by APD and  7  employed by the fire department.  Included in the list of 235 full time employees of  the top 250 paid city hall employees who were paid between $150,084 and $159,775 and who  are at will employees are APD Deputy Chief Cori Lowe paid $159,775, Deputy Fire Chief Santos Garcia paid $158,084. Also included in the list of 35 of the  250 top  paid city hall employees who were paid between $150,084 and $159,775 are  Chief Operations Officer Kevin Sourisseau who was paid $157,778 and 12 “at will”  Department Directors appointed by Mayor Keller and paid between $150,084 and $156,658.

There are 36 full time employees in the top 250 paid city hall employees who were paid between $140,128 and $148,885 a year with 23  employed by APD and 7 employed by the Fire Department for a total of 30.  The remaining 6 work for other city departments.

There are 75 full time employees in the top 250 paid city hall employees who were paid between $130,230 and $139,896  a year with  51  employed by APD and 11   employed by the Fire Department for a total of 62.  The remaining 13 work for other city departments and include City Attorney Lauren Keefe who was paid $138,229, City Budget Officer Lawrence Davis who was paid $138,229, Director  of Finance and Administration Services paid $136,166 and Mayor Tim Keller who was paid $132,228.

There are 57 full time employees in the top 250 paid city hall employees who were paid between $124, 540 and $129,969  a year with 29  employed by APD and 9  employed by the Fire Department for a total of 38 out of 57. The remaining 19 work for other city departments and include deputy directors and project managers.

The lowest-paid person on the top 250 list, General Services Deputy Director Marina Salazar, made $124,541 in 2022.

The link to review the entire list of 250 top city hall paid employees for 2022 is here:

https://publicreports.cabq.gov/ibmcognos/bi/?perspective=classicviewer&pathRef=.public_folders%2FTransparency%2FTop%20Earners%20of%20the%20City%20of%20Albuquerque%20List&id=i5AAD1EA752BA417099BA819E482F6642&objRef=i5AAD1EA752BA417099BA819E482F6642&action=run&format=HTML&cmPropStr=%7B%22id%22%3A%22i5AAD1EA752BA417099BA819E482F6642%22%2C%22type%22%3A%22report%22%2C%22defaultName%22%3A%22Top%20Earners%20of%20the%20City%20of%20Albuquerque%20List%22%2C%22permissions%22%3A%5B%22execute%22%2C%22traverse%22%5D%7D

APD HOURLY BASE PAY

The Albuquerque Police Department (APD) is the largest city budget out of the 27 departments with a 2023 approved General Fund budget of $255.4 million. The Department for each of  the last 4 years has been given funding for 1,100 full time sworn police officers.  Notwithstanding, today APD is  understaff as to sworn police with between 865 to 960 sworn officers.  According to APD Chief Harold Medina, as of March 20  APD   has  960  sworn full time police officers.  (https://www.kob.com/new-mexico/albuquerque-police-seeks-new-recruits-offers-pay-raise/)  An Albuquerque Journal Editorial in February had APD at 865 sworn police. (https://www.abqjournal.com/2571927/city-ot-just-doesnt-pass-smell-test.html)

On February 4, 2022 it was reported that the Keller’s administration had negotiated a new police union contract making APD the best paid law enforcement agency in the region by increasing hourly wages and longevity pay and creating a whole new category of “incentive pay”. The 48-page APOA police “Collective Bargaining Agreement” (CBA) is for 1 year and 6 months period. It is effective January 1, 2022 through June 30, 2023. The new CBA can be down loaded as a PDF file at this link:

https://www.cabq.gov/humanresources/documents/apoa-jul-9-2016.pdf/view

On March 21, 2022, Chief Harold Medina announced  that APD  cadets will be paid $60,000 a year, which breaks down to about $28 an hour while Patrolmen second class will make $63,000 a year.

https://www.kob.com/new-mexico/albuquerque-police-seeks-new-recruits-offers-pay-raise/

Under the signed union contract, APD’s starting wage is well above cities and law enforcement agencies of comparable size including Tucson, Arizona, $54,517, and El Paso, Texas, $47,011. The negotiated hourly pay increases are as follows:

2 to 4 year service pay is $68,411 yearly, or $32.89 hourly.
5 to 14 year service pay is $70,761 yearly, $34.02 hourly
15 or more years of service pay is $74, 297 a year or $35.72 hourly.

The average yearly pay for all APD Officers in all 3 categories of 2 to 15 years’ experience is $71,156 ($68,411  + $70,761 + $74, 297 = $213469  ÷  3 categories = $71,156)  This is the average yearly salary that would be paid to Police Officers First Class, Senior Police Officers 1^st Class, Master Police Officers First Class,

Sergeant pay is $82,533 a year, or $39.69 hourly.
Lieutenant pay is $94,348 yearly or $45.36 hourly

Under the contract terms, longevity pay increased by 5% starting at $2,730 per year with those who have 5 years of service and with incremental service years up to 17 years or more who will be paid $16,380.

Under the union contract, sworn police are entitled to overtime compensation at the rate of time-and-one-half of their regular straight-time rate when they perform work in excess of forty (40) hours in any one workweek. Time worked over 40 hours per week is compensated at time and a half of the officer’s regular rate of pay, or in the form of “compensatory time.” There is no contract provision placing a cap on the amount of overtime any officer can be paid.

The union contract allows the management positions of sergeants and lieutenants to be union members and therefore they can be paid overtime at time and a half.

APD PAY EXCEEDING BASE PAY BECAUSE OF OVERTIME TIME

APD Lieutenants are paid a base pay $94,348 yearly or $45.36 hourly. There are 31 APD Lieutenants listed in the top 250 paid city hall employees who were paid  between $125, 945  (APD Lt David H.  Weidner)  to $217,646  (Lt. Justin Hunt) because of overtime.

APD Sergeant are paid a base pay $82,533 a year, or $39.69 hourly. There are 35 APD Sergeants who were paid between $124,902.87 (Sergeant Morgan Franklin) to $211,910  (Sergeant Brian A Johnson) because of overtime.

The  average yearly base pay  paid to Police Officers First Class, Senior Police Officers 1^st Class, Master Police Officers First Class,  depending on their total number of years of experience is $71,156.  There are 6 police officer 1^st class,  19 Senior Police Officers 1^st class and  2 Master Police Officers 1^st class in the top 250 paid city hall employees that were paid between $124,902 (Senior Police Officer 1^st Class Honorio Alba,  Jr. ) and $165,330 ( Master Police Officer 1^st Class Stephen T Walsh) because of overtime. 

LONGEVITY PAY ADDED TO APD BASE PAY

In addition to the base pay rates, APD police officers are also paid longevity bonus pay added to their pay at the end of the year.  The Fiscal year 2023 Longevity Pay Scale is as follows:

For 5 years of experience: $105 is paid bi-weekly, or $2,730 yearly
For 6 years of experience: $131 is  paid bi-weekly, or $3,406 yearly
For 7 to 9 years of experience: $236 is  paid bi-weekly, or $6,136 yearly
For 10 to 12 years of experience: $315 is paid bi-weekly, or $8,190 yearly
For 13 to 15 years of experience: $368 is paid bi-weekly, or $9,568 yearly
For 16 to 17 years or more experience: $473 is paid bi-weekly, or $12,298 yearly
For 18 or more years of experience: $630 is  are paid bi-weekly, $16,380 yearly

$34,380 LONGEVITY PAY AND BONUS PAY TO 19 YEAR POLICE VETERANS

On October 7, 2022  APD Chief Harold Medina  announced at a news conference new incentive pay  bonuses for  police officers who have been on the force 19 years or more  and who are eligible for retirement. They  will  be paid as  much as $18,000 more per year, or $1,500 more a month.   In addition, the department will pick up 100% of the officers’ medical benefits.

The additional $18,000 more a year in incentive pay for 19  year  veterans will be paid in addition to the $16,380 annual longevity pay already being paid to police officers with 18 years or more of police service. According to APD Chief Medina  the incentive pay is  necessary to stop the number of officers resigning or retiring which cannot be offset by the number of new recruits entering the department.

The APD announced $18,000 bonus  to be paid to 19-year veterans on the force comes as the state pours millions of dollars into a law enforcement recruitment fund, of which some of that funding is going to APD.  In early September 2022, New Mexico announced it would award $8.75 million to the Albuquerque Police Department for recruitment efforts. According to the Governor’s Office, the money was expected to fund upwards 67 new officers at APD.  Money for the program comes from a bill passed by New Mexico lawmakers during the 2022 regular session. Earlier the Governor’s Office said roughly $8.5 million remains available in the state fund. Law enforcement agencies who want the money needed to apply.

APD Chief Harold Medina diverting legislative funding APD applied for and which was specifically allocated by the New Mexico legislature for “recruitment and hiring”of 67  APD Cops and then turning around and using it to pay APD 19 years of service veterans and additional $18,000 in incentive pay is so very wrong on so many levels.  It does not pass the smell test and it is akin to a “bait and switch” scam tactic by APD.  Medina did not disclose if he will benefit himself financially from the bonus pay.

In all likely, Chief Medina has abused his authority or discretion by violating the spirit and intent of the state funding allocation.  APD had to apply for the funding and in doing so likely made the representation it would be used for “recruitment and hiring” with no mention that it would be used to pay incentive bonuses.  Incentive bonuses of $18,000 paid to 19-year APD veterans are not “recruitment and hiring”.

APD CHIEF AND DEPUTY CHIEF SALARIES

The Albuquerque Police Chief Command staff consisting of the Chief and the 4  Deputy Chiefs.  All 5 are “at will employees” and serve at the pleasure of the Mayor with their salaries a matter of negotiation. They are not paid overtime. They are listed in the top 250 paid city hall employees for 2022.  In 2022, the APD Chief Command Staff were paid as follows

• Medina, Harold,  PD-Police Chief Of Police,  $204,023.40
• Garcia, Eric JPD-Police 2nd Deputy Chief $174,729.82
• Griego, Jon J  Police Deputy Chief  $171,079.75
• Smathers, Michael JayPD-PolicePD11st Deputy Chief $165,823.72
• Barker, Cecily APD-Police Deputy Chief $160,715.20

APD’S CHRONIC OVETIME PAY ABUSE

Review of the 2019, 2020 and 2021 city hall 250 highest paid wage earnings reveal the extent of the staggering amount of overtime paid to APD Sergeants and Lieutenants. The lopsided number of APD sworn police officers listed in the top 250 paid city hall employees is directly attributed to the excessive amount of overtime paid to those  sworn police officers.

Police officers first class, senior police officers 1st class, master police officers 1st class, sergeants and lieutenants comprise the collective bargaining unit for the APD police union contract. All are classified employees and can only be terminated for cause.

For 2019, 2020 and 2021, over half of the top 250 wages earners at Albuquerque City Hall were APD sworn police officers in the ranks of police officer first class, senior police officer 1st class, master police officer 1st class, sergeant and lieutenant. All earned between $113,126.08 to $199,414.69 a year. All were 40-hour a week wage earners and were paid time and a half for overtime pay.

For both the years of 2019 and 2020, 160 of 250 top paid city hall employees were police who were paid between $107,885.47 to $199,666.40.

In 2019, there were 70 APD patrol officers first class, master, senior in the list of 250 top paid employees in 2019 earning pay ranging from $108,167 to $188,844. Hourly pay rate for Patrol Officers was $29.00 an hour to $31.50 an hour depending upon years of experience.

In 2019, there were 32 APD Sergeants in the list of 250 top paid employees earning pay ranging from $109,292 to $193,666. Hourly pay rate for APD Sergeants was at the time $35 an hour, or $72,800 a year. In 2019, there were 32 APD Lieutenants in the list of 250 top paid employees earning pay ranging from $108,031 to $164,722. Hourly pay rate for APD Lieutenants was at the time $40.00 an hour or $83,200 yearly.

In 2020, there were 69 patrol officers paid between $110,680 to $176,709. In 2020, there were 28 APD Lieutenants and 32 APD Sergeants who were paid between $110,698 to $199,001 in the list of the 250 top paid city hall employees paid between.

For the calendar year of 2021, 126 of the top 250 city hall wage earners were sworn police officers ranging from the rank of patrol officer 1st class through to the rank of Lieutenant. The 2021 listing of APD sworn personnel reveals that between the ranks of Senior Police Officer and Lieutenant were paid between $130,000 to over $199,000 in 2021 because of overtime.

In 2021, there were a total 52 sworn police officers in the ranks of Police Officer First Class, Senior Police Officer and Master Police Officer in the listing of the top 250 top city wage earners. For 2021, there were 27 Sergeants and 30 Lieutenants listed in the top 250 city wage earners working for APD.

FAILED EFFORTS TO PLACE CAPS ON OVERTIME

It was in 2018 that APD spent $11.5 million in overtime. As a result, on January 14, 2019, APD announced it was going to place a limit on how much overtime officers could work in a week. There were nearly a dozen different types of overtime programs within the department, including holiday tac-plans, checkpoints and training, and “chief’s overtime” where private businesses pay to have an officer on site. Officers were only allowed to work 25 hours of overtime per week or 100 hours per month.  It  did not work and other caps were attempted and failed miserably largely because APD mid management and upper management failed to fully implement the overtime cap policies or they went along and  simply approved overtime pay requests contrary to APD policy.

https://www.krqe.com/news/apd-places-limit-on-hours-of-overtime-officers-can-work-each-week/

APD REAPEATEDLY BUSTS OVERTIME PAY BUDGETS

During the last 11 years, the Albuquerque Police Department has consistently gone over its overtime budgets by millions. In fiscal year 2016, APD was funded for $9 million for over time but APD actually spent $13 million. A March, 2017 city internal audit of APD’s overtime spending found police officers “gaming the system” that allowed them to accumulate excessive overtime at the expense of other city departments.

A city internal audit report released in March, 2017 revealed that the Albuquerque Police Department spent over $3.9 million over its $9 million “overtime” budget.

In 2018 APD spent $11.5 million paying officers to work overtime that resulted in a failed attempt to cap overtime to 20 hours a week.

In 2019 APD paid $17.9 million in overtime and in 2020 paid $18.3 million in related overtime costs.

Under the union contract, sworn police are entitled to overtime compensation at the rate of time-and-one-half of their regular straight-time rate when they perform work more than forty (40) hours in any one workweek. Time worked over 40 hours per week is compensated at time and a half of the officer’s regular rate of pay, or in the form of “compensatory time.”

There is no police union contract provision placing a cap on the amount of overtime any officer can be paid. Compensatory time is the award of hours as already worked to be paid and is calculated at the rate of 1-1/2 times the hours actually worked. The maximum accrual of comp time for any officer is 150 hours.

Since 2014, there have been 7 audits investigating APD’s overtime pay abuses. The audits resulted in 17 findings and recommendation made to stop the overtime pay abuse, but they were never fully implemented by APD management nor former Republican Mayor Richard Berry and Democrat Mayor Tim Keller.

THREE APD OVERTIME PAY SCANDALS

Since 2018, there have been at least 3 major overtime pay scandals involving APD and each provide a case study reflecting that Mayor Keller and the City  Council have been totally hapless and incompetent to dealing with overtime pay abuse.

APD SPOKESEMAN SEREANT SIMON DOLBICK

In 2018, the Citizens Police Oversight  Agency investigated and  found that in 2018  APD Spokesman Sergeant Simon Dolbik was paid $192,973 making him Albuquerque’s highest-paid employee in 2018. The investigation also found that his supervisor was one of the city’s top 11 paid wage earners. The investigation found that throughout 2018 Drobik violated overtime and pay policies more than 50 times by getting paid simultaneously for being on call as a spokesman for APD and working “chief’s overtime” and paid time and a half stationed at local businesses.

For successive years, as APD Spokesman, Drobik was routinely among the highest earners in the city. Drobik ranked No. 1 among all city employees in 2018 by being paid $192,973. In 2019, Drobik was ranked as the 7th highest wage earner in 2019. When Drobik retired in July 2020, he had already collected $106,607 for the year when his base pay rate was listed as $31.50 per hour, or $65,520 a year according city records ($31.50 per hour X 2,080 hours a year= $65,520).

https://www.abqreport.com/single-post/2019/05/02/BREAKING-State-Auditor-Investigating-Human-Robot-Simon-Drobiks-Overtime-Claims

The city has never demanded nor sued Drobik to reimburse the city for any questionable overtime paid found by the investigations.

LIEUTENANT JIM EDISON

In the spring of 2020, right after the pandemic began, APD Chief Harold Median placed Lt. Jim Edison in charge of the COVID-19 unit in APD’s Special Operations Bureau. Edison was responsible for coordinating the department’s COVID response, including contact tracing, testing of officers, and directing them when to quarantine. Over the course of one year, APD Lieutenant Jim Edison was paid $242,758 which consisted of a base pay and overtime pay. To put this staggering amount into perspective, hourly based pay for APD Lieutenants in 2020 and 2021 was $40 an hour or $83,200 a year. In other words, Edison was paid $159,558 in overtime in addition to his $83,200 base pay resulting in $242,758 paid in 2021.

Review of APD pay stubs showed Edison made $186,944 in 2020 and $173,672 in 2021. In 2020, more than $95,000 appeared to be from overtime according to pay stubs. From April 2020 to April 2021 Edison was paid upwards of $224,000, according to records APD provided to the news media.  Edison was paid upwards of 3 times his base pay all because of overtime paid at the rate of time and a half. The police union contract requires payment in full for 2 hours for any overtime worked outside scheduled work time, no matter if the actual work was for mere minutes or seconds.

APD Internal Affairs and the Police Oversight Agency investigation into the time Edison claimed found Edison was routinely forwarding voicemails or emails outside of work hours and claiming 2 hours of overtime in each time he forwarded the voicemails or emails which likely took seconds to forward. The police union collective bargaining contract contains a clause that when an officer is “called in to work outside their regular working hours”, they are guaranteed pay for a minimum of 2 hours and the rate of time and a half.  The investigation report on Edison found he was voluntarily taking on tasks or duties outside of his regularly scheduled hours not ordered or approved by his supervisors, including early morning hours when he was at home.

2020 AUDIT FINDS $400,000 PAID IN OVERTIME TO 4 POLICE OFFICERS

On October 26, 2020 the Internal Audit Department released a performance audit that found over $400,000 paid in overtime to 4 police officers. The release audit found that 4 APD Officers claimed over 2,000 hours of paid overtime, paid at the rate of time and a half, during the fiscal year of July 1, 2019 and ending June 30, 2020. The names of the 4 police officers were never released by APD. The overtime paid average was 38 hours of overtime each 40-hour work week or 78 hours a week claimed in hours worked. During the 2018-2019 fiscal year, 2 other police officers also exceeded 2,000 hours of paid overtime. The amount paid in overtime to each of the 4 was over $100,000 for more than a total $400,000 paid.

The audit found several instances of employees being paid based on their scheduled hours and not those hours they actually worked.  The Internal Audit report recommended officers be asked to pay back their wages if they were overpaid. It was also recommended regular spot checks to see if officers were really working the hours they were reporting. APD concurred with the recommendation of repayment if necessary. However, an APD spokeswoman said she was not aware of anyone being asked to repay anything.

Salaries account for upwards of 78% of APD’s annual budget of $211 million. According to the audit report:

“Overtime related costs constituted a large portion of total APD salaries paid for … the fiscal year 2019 … APD paid $17.9 million and in [2020] $18.3 million related overtime costs.”

2021 NEW MEXICO STATE AUDITOR’S SPECIAL AUDIT

It was on Friday, August 6, 2021, the New Mexico State Auditor’s long-awaited special audit report on overtime abuse by the Albuquerque Police Department (APD) was released. The 64-page audit was performed by the Albuquerque accounting firm Porch & Associates LLC. The audit covers the time period of January 1, 2018 to June 30, 2020. The link to the entire 64-page audit report is here:

https://drive.google.com/file/d/1sIsbWAGpIC2mDFs8bsbQ1BhYDOSXH8Ig/view

The State Audit released found that problems identified in previous 6 investigations and audits persisted and the city did not track its progress in addressing recommendations. The 2021 special audit found there was an absolute failure by APD command staff to carry out and implement the changes needed to solve the overtime problem.

The released audit identified that certain APD police union contract terms and conditions are in violation of the Federal Labor Standards Act and that the police union contract has contributed significantly to the overtime pay abuse by rank-and-file sworn police officers.

The links to quoted news source material are here:

https://www.krqe.com/news/politics-government/audit-makes-recommendations-for-apd-overtime-policies-practices/

https://www.koat.com/article/albuquerque-police-department-audited-for-overtime-pay-for-7th-time/37248257

https://www.kob.com/albuquerque-news/audit-apd-continues-to-abuse-overtime/6199260/?cat=500

ALBUQUERQUE FIRE AND RESCUE DEPARTMENT

The Fire and Rescue Department (AFRD) is the second-largest city department with funding at $107.6 million. In fiscal year the 2023, AFR is budgeted for 812 full time positions and AFR it is fully staffed.

A  CADET/FIREFIGHTER  3c during a 20 week training academy is paid $17.02 an hour for a 40 hour work week or $13,616 (40 hrs x 20 weeks = 800 x $17.02 = $13,616) OR   $35,401 a year  (40 hour work week X 52 weeks = 2080 hours X $17.02 hourly wage = $35,401.

CADET/PARAMEDIC FIREFIGHTER 3C during A 20 week training academy is paid $20.80 an hour  for a 40 hour work week or $16,640 (40 X 20 = 800 x $20.80 = $16,640)  OR $43, 264  a year (40 hour work week X 52 weeks = 2080 hours X $20.80 = $43, 264.

PROBATIONARY FIREFIGHTER 2C (1 year) are paid $39,545.22  a year.

PROBATIONARY PARAMEDIC FIREFIGHTER 2C (1 YEAR) are paid  $45,617.00 a year

FIREFIGHTER 1^st Class   are paid  $62,196.42  a year.

PARAMEDIC FIREFIGHTER 1^st Class are paid  $64,933.44 a year. 

51 of the 250 top paid city hall employees were AFRD personnel.

The following Fire Department employees are listed as 40 hour work week employees and were paid as follows because of overtime paid:

• Fire Paramedic Lieutenant Robert Herrera:  $196,302
• Fire Paramedic Lieutenant Si N Do:  $193,550
• Fire Paramedic Lieutenant Jacob Tapia:  $191,713
• Fire Paramedic Lieutenant Thomas Ruiz: $191,486
• Fire Captain Craig J Deal: $189,928
• Fire Battalion Chief Alex Montero (56 Hour Work week listed) $186,215
• Fire Paramedic Lieutenant Johnathan D. Longdon: $184,195
• Fire Paramedic Lieutenant Zachary Webb: $184,195
• Fire Paramedic Battalion Chief Christopher Ortiz:  $182,148 
• Deputy Fire Chief Kristopher Romero: $160,628
• Paramedic Driver Jose Chaves:  $164,350
• Deputy Fire Chief Santos Garcia: $158,084
• Fire Battalion Chief Michael Rogers:  $156,824
• Deputy Fire Chief Kevin Ferando: $151,865
• Deputy Fire Chief James Malek: $151,247

AFRD LONGEVITY PAY

All members who serve at least 5 consecutive years with AFR will receive longevity pay. This supplement is paid monthly and is applied towards your highest 5 year earnings.

• 5 -7 years = $2,340 annually
• 8 – 11 years = $3,250 annually
• 12 – 14 years = $4,160 annually
• 15 – 17 years = $6,240 annually
• 18 – 21 years = $13,130 annually
• 22 – 24 years = $14,430 annully
• 25 years and above = $16,770 annually

https://www.cabq.gov/fire/become-a-firefighter/pay-incentives-and-benefits

ALBUQUERQUE FIRE AND RESCUE CHIEF AND DEPUTY CHIEF SALARIES

Albuquerque Fire and Rescue command staff consisting of the Fire Chief, Deputy Chiefs, Captains,  Lieutenants, Battalion Chiefs are paid in accordance with years of experience and what is approved or negotiated.  The Fire Chief and the Deputy Chiefs are at will employees, are listed as 40 hour work week employees and they are not paid overtime  and are in the top 250 paid city hall employees.  In 2022, AFRD Chief Command Staff were paid as follows:

• Gallegos, Gene, Fire Chief – 40 HR  $171,493.24
• Meisner, Nathaniel, AFRD Fire  Deputy Fire Chief – 40 HR  $172,979.53
• Garcia, Santos, AFRD Deputy Fire Chief – 40 HR $158,084.11
• Romero, Kristopher S, Deputy Fire Chief – 40 HR $160,682
• Ferando, Kevin J., Deputy Fire Chief -40 HR $151,885
• Melek, James A., Deputy Fire Chief- 40 HR $151,865
• Jarammillo, Emily V., 1^st Deputy Fire Chief – 40 HR  $151,247.43

MAYOR AND DEPARTMENT DIRECTORS’ SALARIES

Mayor Tim Keller and a number of his Department Directors, who are at will employees, are on the list of 250 top paid city halls.  When Mayor Keller first took office 5 years ago, the average salary he paid Department Directors was $116,000 and the average pay today  is over $152,000. Following are the salaries paid to the Mayor and his Department Directors who are not eligble for overtime hourly pay:

• Mayor Tim Keller – $132,228
• Animal Welfare Director Carolyn Ortega – $152,776
• Family Community Services Director Carol Pierce – $152,756
• Municipal Development Director Charles Montoya – $152,756
• City Clerk Ethan Watson – $152,555
• Community Safety Department Director Mariela Ruiz – $152,555
• Cultural Services Director Mary Van Etten de Sanchez – $152,555
• Senior Affairs Director Anna Sanchez – $152,555
• Solid Waste Director Mathew Whelan – $152,555
• Aviation Director Richard McCurly – $150,084

COMMENTARY AND ANALYSIS

Police and fire personnel account for the overwhelming majority of the top 250 paid city hall employees primarily because overtime paid. Many are more than doubling their base pay because of overtime which is astonishing.  APD had 3 of the city’s top 10 paid employees last year, while AFRD had 6. It is painfully obvious that the Albuquerque Fire Department has now been infected with APDs’ overtime pay abuse greed virus.

ALBQUERQUE FIRE AND RESCUE DEPARTMENT

The Albuquerque Fire and Rescue Department is fully staffed. Ostensibly, there is no legitimate reason why is there so much overtime being paid to AFRD personnel.  It is AFRD command staff that set the work schedules and its more likely than not  they are giving preferential treatment to  a select few.

A confidential source within the Fire Department has  disclosed many paramedics assigned to support services claim they are unable to perform their field duties as paramedics and do so  in order to get into overtime pay positions. Once they are in their new support potions they recover from their physical infirmity and say they able to work overtime. It’s a scheme that is unfair because these support positions provide the opportunity for all who work there to get evenings, weekends and holidays off, while the field personnel work all these times regardless and its part of their job. 

The  confidential source within the Fire Department also said that what is happening is that trained paramedics are being taken out of  field services and assigned to AFRD support divisions. When trained paramedics work overtime in a support division, they are paid upwards of 40% higher the hourly rate than paramedics who are assigned to the field. That’s because the support divisions make a higher hourly rate because they work 40-hour work weeks as opposed to the 56 hours that are worked by field personnel. Both these hourly rates will work out to the same weekly pay. For a 40-hour person to make equal to a field worker, their hourly rate is higher. This part of it is reasonable but it’s how it’s been manipulated to increase overtime that is not.

 ALBUQUERQUE POLICE DEPARTMENT

APD has been severely understaffed for years.  It now has 960 sworn officers  if Chief Median is to believed when it is budgeted for 1,100 sworn police.  In early February a news report said APD had 865 full time sworn. While that makes APD’s overtime pay more understandable, abuse has plagued the police department and prompted audits for several years.

Instead of enforcing limitations on overtime and preventing the overtime abuse, many sergeants and lieutenants simply participate in excessive overtime pay practices themselves and likely approve all overtime submitted by their subordinates to keep them happy and to maintain a working relationship with them and to garner favor with them.

THE DANGERS OF EXCESSIVE OVERTIME

From a personnel management standpoint, when you have a select few that are taking home the lion’s share of overtime, it causes moral problems with all the rest. Consecutive shifts or excessive overtime for any police officer or firefighters can lead to extreme fatigue, emotional burnout and reduce a first responders alertness and response times and reflexes that can endanger lives and public safety.

Excessive overtime paid is a red flag for abuse of the system, mismanagement of police resources or the lack of personnel. APD has added hired officers but is failing to keep up with retirements and it has become a vicious circle. In the years Mayor Keller has been in office, APD has never reached Keller’s promised goal of 1,200 sworn police when he first ran in 2017.

CONCLUSION

It is once again time for the City Council, the City Auditor, the City Office of the Inspector General and the state Auditor to take a look at APD again as well as and AFRD’s overtime. Both departments’ upper command must be held accountable for the overtime abuse.

The problem is that it will not matter because Mayor Tim Keller has proven to be absolutely inept in managing both departments.  He has allowed overtime pay abuse to continue during his 5-year watch without doing anything to hold his management team responsible. The City attorney’s office has never initiated any civil collection action to demand repayment of fraudulent overtime pay.

The solutions to end overtime pay abuse are:

1.  Criminal prosecutions for overtime time card fraud.
2.  Civil lawsuits for reimbursement of fraudulent overtime pay.
3. Negotiate new terms to the APD union contract removing APD Sergeants and Lieutenants who are management from the union bargaining unit and making them at will and paid a salary.
4. Abolishing all forms of overtime pay.
5. Creating a strict salary structure.

On April 1, 2023, Mayor Tim Keller will be releasing his proposed 2023-2024 budget for review and approval by the City Council. When that happens, the City Council and the public will get an even clearer picture of the extent of overtime paid to both APD and AFRD.

A link to a related blog article is here:

Chief Harold Medina’s “Bait And Switch” Game Of Diverting State Funding For “Recruitment And Hiring” Of Cops To Pay 19 Year APD Veterans $18,000 More In Incentive Pay;   Their Incentive Pay Will Total $34,380; Increase New Cadet Hiring Bonuses To $25,000 To Attract New Generation Of Cop

On November 30, 2023, it was reported that mid heights District 7 Albuquerque City Councilor Tammy Fiebelkorn introduced and was  sponsoring two  city ordinances that targeted  the city’s apartment industry. One ordinance was  entitled the “Residential Tenant Protection Ordinance” and targeted what  Fiebelkorn deemed “deceptive” practices and “unreasonable” fees charged by residential rental  proper owners and landlords.  The second was  the “Residential Rental Permit  Ordinance” that would mandate  a permitting system to operate residential rental properties.

At the time of introduction, Fiebelkorn said she had numerous  renters who contacted her and complained that  they ended up paying a lot more for the apartments they rented than they expected because of “hidden fees”. The bill would require landlords to post a list of application fees, minimum income and credit score requirements, plus background check results that could disqualify applicants. Fiebelkorn said this at the time:

“Most of the landlords in our city are fair, transparent, very clear with what folks are going to get. It’s the few that are making it really hard. … What we’re trying to do is make it real clear and transparent for people who are like looking for a rental unit.”

While Fiebelkorn said  she  believes most landlords are not overcharging tenants, she said her proposals will keep some bad actors at bay and she said this:

“I think that there is always a role for regulation so that we can protect those that are most vulnerable in our community.”

https://www.kob.com/new-mexico/albuquerque-city-councilor-pushes-for-more-renter-protection/

On March 6, the  Albuquerque City Council voted  4  Yes and 5  No  to kill Fiebelkorn’s “Residential Protection  Ordinance” as it had been amended since introduction in November of 2022. Voting YES with Fiebelkorn in favor of the bill were Democrats City Councilor Pat Davis, Isaac Benton and Klarissa Peña. The 5 who  voted  NO to kill the bill were Republicans Dan Lewis, Trudy Jones,  Renee Grout and Brook Bassan joined by Democrat Louis Sanchez.

WHAT THE BILL MANDATED

Fiebelkorn’s amended bill centered on the rental application process itself. The bill  would have required the following:

Rental property owners and landlords would be required to make upfront disclosures to potential applicants.

Rental property owners and landlords would  have to list  any parking, amenity, pet or other fees, as well as any financial penalties tenants might face for late payments or other lease violations.

Rental property owners and landlords  would also have to outline certain terms of their tenant-screening process so that would-be applicants knew ahead of time if they must have a specific credit score or income to qualify.

All application fees would be limited to $150 and require landlords refund it in cases where they rented the unit to someone else before processing others’ applications or when they denied an applicant without providing a reason.

Rental property owners and landlords   would have been prohibited from mandating that tenants have insurance for their personal property, though they could have still required that renters have insurance to cover damage to the rental unit.

PROS AND CONS VOICED

Before the vote, city councilors heard from multiple community members in favor of the legislation and local property owners who opposed it.  Many argued against the legislation with one claiming it conflicts with the State’s  Uniform Owner Resident Relations Act and would only confuse owners and residents.

Supporters described the bill as “common sense” protections for tenants. They argued the regulations would ease the burden on lower-income renters who currently struggle to pay multiple application fees and who need to know and plan for about  all the fees they will have to pay while in a rental agreement.

Rental industry representatives who spoke during the city council meeting called the bill “meddlesome” and “cumbersome”  and “unnecessary”.   They argued passage would likely result in them having to raise rents to account for the new regulations.

Before the final vote, Democrat City Councilor Louie Sanchez and Republican Trudy Jones urged the council  to postpone a decision to allow further work and changes to make the bill more acceptable but Fiebelcorn  rejected that idea. Fiebelkorn said she worked on the bill for months and  invited  all constituencies to participate and that she made significant changes to her original proposal to address various concerns. She said she was not sure what else could have done.

Sanchez and Jones  ultimately joined Republicans Brook Bassan, Renee Grout and Dan Lewis in voting down the proposal.

Democrat Councilor Louie Sanchez had this to say:

“Any time we force any entity to do something, whether it’s a public or private endeavor … the next thing that happens is the person in control raises the fees, raises the rent.”

Councillor Bassan had this to say:

“I don’t think that we should infringe upon property owners’ rights as property owners to do what they will with their property”.

After the vote Fiebelkorn  defiantly said this:

“It’s a shame we can’t protect the citizens of Albuquerque”.

MAYOR TIM KELLER VOICES DISAPPOINTMENT

Mayor Tim Keller, in a statement,  voiced his disappointment over the ordinance’s failure:

“Our city is in a housing crisis that is putting pressure our most vulnerable. Now is the time for additional resources to protect tenants and increase transparency in the rental process, and we are disappointed this ordinance did not pass. The proposed changes were conservative safeguards, needed especially now as so many people are struggling to find affordable places to live.”

Links to quoted news sources are here:

https://www.kob.com/new-mexico/albuquerque-city-council-votes-against-tenant-protection-ordinance/

https://www.abqjournal.com/2579151/albuquerque-city-council-rejects-tenant-protection-regulations.html

MAYOR KELLER’S “HOUSING FORWARD ABQ” PLAN

It was on November 10, 2022 that Mayor Tim Keller announced his “Housing Forward ABQ” plan to add 5,000 housing units to the existing housing supply by 2025.  Keller called his plan “transformative” and it includes updates to Albuquerque’s Integrated Development Ordinance (IDO). The updates to the IDO Keller is pushing is to allow construction of “casitas” or “two family” attached additions on all existing homes on  68%  of all the residential lots in the city,   allow 2  Safe Out Door spaces for homeless tent encampments in each city council district and allow  “motel conversions”  where the city is buying existing motels and converting them into low income housing rentals.

Mayor Keller has advocated and has fully supported the amendment to the IDO that allows for the land use known as “Safe Outdoor Spaces” to deal with the homeless crisis. “Safe Outdoor Spaces” are city sanctioned homeless encampments located in open space areas that will allow upwards of 50 homeless people to camp, require hand washing stations, toilets and showers, require a management plan, 6-foot fencing and provide for social services.  Under an adopted amendment to the IDO, two Safe Outdoor Spaces are now  allowed in all 9 city council districts and includes non-residential and mixed-use zones

Mayor Keller wants to amend the Integrated Development Ordinance to allow “casitas” or “two family” attached additions on all existing homes on  68%  of all the residential lots in the city.  The proposed legislation will dramatically increase options in  “R-1” residential zones.  “R-1”zoning  is  single family home lot zoning.   Upwards of 68% of all residential property zoned in the city is zoned R-1.  The proposed legislation will allow detached “casitas” or “two family” residence or duplexes up to 750 feet  on all existing residential lots in the city. City officials have reported that there are 120,000 existing single residential lots in the city and that allowing casitas and two family residences could double to 240,000 residential construction increasing housing density and rental units.  If casitas and two family residences are in fact allowed and used as rentals, Fiebelkorn’s ordinance would have applied.

COMMENTARY AND ANALYSIS

Mayor Keller’s disappointment that Residential Tenant Protection Ordinance was not enacted should not come as any surprise to anyone, especially home owners given the fact that Keller wants Safe Outdoor Spaces for the homeless in all  City Council Districts, and  wants to allow the construction of Casita’s and second dwellings in all areas of the city by amending the Integrated Deployment Ordinance, with all 3 having adverse and very negative impacts on residential areas.

The rejection of Fiebelkorn’s “Residential Tenant Protection Ordinance” was a good thing and an acknowledgement and respect for property rights and ownership as well as existing laws that protect both tenant and property owner rights to contract.  The title of the ordinance “Residential Tenant Protection Ordinance” was nothing more than pure politcal posturing and spin by City Councilor Tammy Fiebelkorn. In a real sense,  Fiebelkorn’s  ordinance amounted to nothing more than “class warfare” pitting landowners against their tenants.

Fiebelkorn proclaimed her new ordinances were   a “logical progression” of the discussion on rent control.  The only logical progression is the fact that Fiebelkorn is a self-proclaimed activist and who is considered the extremist on the city council who became upset with the City Council rejecting her politcal agenda to ask the New Mexico Legislature to repeal the state law that prevents cities throughout the state from implementing rent control. The 2023 legislature in fact rejected rent control legislation.

The ordinance  reflects  Fiebelkorn’s resentment or downright hostility towards property owners and the apartment industry that resisted  rent control.  Fiebelkorn herself said this:

“Most of the landlords in our city are fair, transparent, very clear with what folks are going to get. It’s the few that are making it really hard.”

With these comments Fiebelkorn  was  saying she wanted to make the entire apartment rental  industry miserable with city fees and bureaucratic mandates because “It’s the few that are making it really hard.”  She originally proclaimed  her Residential Tenant Protection Ordinance is a relatively painless way to help Albuquerque residents living on the margins to deal with soaring rental housing costs.  The truth is, there is absolutely nothing “painless” about the ordinance when it comes to real property owners and how it interferes with their property rights and their right to contract.

CITY COUNCIL USUPRING STATE STATUTES

The way the ordinance is written as amended, it is a blatant attempt to usurp and contravene provisions of the state  Owner – Resident Relations Act. The Act mandates written ‘‘rental agreements’’ or leases and provides that all agreements between an owner and resident and all  rules and regulations required  under the act must be embodied in  the terms and conditions of the written lease concerning the use and occupancy of a dwelling unit or premises.   (47-8-3, P,  Definitions.) 

The written lease agreement must delineate all the terms and conditions and parties performance requirements under the contract. Consequently, under the act, property owners are already required to make full disclosure of fees charged to be enforceable. Mandatory fees for nonrefundable or refundable applications fees, covered parking fees, fees for common area use such as pools and laundry room use, pest control and grounds maintenance are all terms and fees that must be included in residential rent agreements to comply with the Owner-Resident Relations Act.

The state law mandates written lease agreements that are enforceable contracts in a court of law. The act allows the parties to negotiate contract terms of any rental lease, including payment of fees of any kind. Tenants have the right to object to the fees as being unreasonable and landlords and owners who retaliate by failing to rent because of refusal to pay fees expose themselves to the Unfair Trade Practice violations and accusations that can result in triple damages under the Unfair Trade Practices Act and payment of attorney’s fees and costs.

Under the state law, no rental agreement may provide that the resident or owner agrees to waive or to forego rights or remedies under the state law.  (47-8-16 Waiver of rights prohibited.)  If an owner deliberately uses a rental agreement containing provisions known to be prohibited by law, the resident may recover damages sustained resulting from application of the illegal provision and reasonable attorney’s fees.  (47-8-17 Unlawful agreement provision.)

The remedies provided in the Uniform Owner-Resident Relations Act  are administered by the courts  to allow and  aggrieved party to  recover damages as provided in the Act.  It is the district, magistrate courts or metro courts that have  jurisdiction to enforce the lease over any person or with respect to any conduct or claim prohibited under the Act.  (47-8-10 Judicial jurisdiction.)

 METRO COURT LANDLORD-TENANT SETTLEMENT PROGRAM

The Bernalillo County Metro Court has a Landlord-Tenant Settlement Program that deals exclusively with landlord tenant disputes. If the court, as a matter of law, finds that any provision of a rental agreement was inequitable when made, the court may limit the application of such inequitable provisions to avoid an inequitable result.  (47-8-12 Inequitable agreement provision).

The mediation program is specifically for people involved in landlord-tenant disputes. The Landlord-Tenant Settlement Program  gives  landlords and tenants the opportunity to work out business agreements beneficial to both sides.  The service is free, and parties in a case  work with a volunteer settlement facilitator specially trained in housing matters.  Many of the facilitators are retired judges and experienced attorneys who will provide services pro bono.

The Metro  Court’s general Mediation program has been serving the community for 34 years and has evolved into the largest, ongoing court mediation program in the State of New Mexico.  Mediation Staff, along with professionally trained mediators, help people resolve more than 600 cases per year.  The program recruits and maintains a pool of approximately 75 professionally trained mediators who provide well over 1,000 hours of volunteer time to the court each year.

https://metro.nmcourts.gov/2020/05/06/landlord-tenant-settlement-program-to-launch-mid-may/

https://metro.nmcourts.gov/bernalillo-county-metropolitan-court/divisions/civil-unit/

ATTORNEY GENERAL

It is the New Mexico Attorney General that has the primary responsibility and authority to enforce the New Mexico Unfair Trade Practices Act,  57-12-1 to 57-12-24,  which makes unfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce unlawful. The Unfair Trade Practices Act is New Mexico consumer protection act and it provides for private remedies.

https://law.justia.com/codes/new-mexico/2006/nmrc/jd_ch57art12-10897.html)

The Attorney General would also have the authority to ensure that the Owner – Resident Relations Act is being followed. Consequently, if the City Council or for that matter the tenants do indeed have legitimate complaints that there are unscrupulous landlords failing to disclose abusive fees, the Attorney General needs to step in and enforce the state’s consumer protection laws against them.   The Mayor or for that matter, the City Council can ask the Attorney General to step in and initiate action against unscrupulous landlords.

CONCLUSION

Simply put, Fiebelkorn wants rent control in the city and she refused to take no for an answer.  If the New Mexico legislature will not allow rent control, Fiebelkorn wanted to try and accomplish it indirectly through city ordinance by eliminating any and all fees paid by a tenant, regardless of legitimacy or need.

The “Residential Tenant Protection Ordinance”  was defective on its face in that there was no substantive enforcement provisions, no penalty provisions and no funding for enforcement. The “Residential Rental Permit Ordinance” was nothing more than retaliating against an entire industry that is opposed to rent control.  The new ordinances amounted to nothing more than overreaching by the city council while ignoring existing state laws  and programs that provide for specific remedies and penalties dealing with landlords and tenants.

On Friday, March 16, in a surprising 48 page decision, City Land Use Hearing Officer Steven M. Chavez granted the appeal of 7 organizations to stop the City and the charitable organization  Dawn Legacy Pointe  from constructing a Safe Outdoor Space (SOS) on two city own lots located at 1250 Menaul Blvd. NE.

Appealing the Planning Department decision were the Santa Barbara-Martineztown Neighborhood Association; Crowne Plaza hotel; LifeRoots Inc.; Sunset Memorial Park, Greater Albuquerque Hotel and Lodging Association; Menaul School; and Albuquerque Hotel Project. The SOS would be a tent  encampment for 50 homeless woman who are victims of sex trafficking.

A “Safe Outdoor Space” is defined as a lot, or a portion of a lot, developed to permit homeless encampments with 40 designated spaces for tents, allowing  upwards of 50 people, require hand washing stations, toilets and showers, and  require a management plan, fencing and social services offered.

HISTORY OF APPEAL

It was on September 28, 2022 after an appeal hearing  that Land Use Hearing Officer Steven M. Chavez sent back to the Planning Department  the original Dawn Legacy Pointe application, The hearing officer ordered   the City to give legal notice to adjacent property owners and hold a  hearing on the application.  The City Planning Department had originally granted the Dawn Legacy application for the SOS behind closed doors without giving notice to surrounding property owners, neighborhood associations and businesses as require by law. The Planning Department held no public hearing on the application and   the Family Community Services Department gave Dawn Legacy assistance in identifying city property for the SOS, assisted with its design and with the application and agreed to provide funding.

On December 22, 2022   the Planning Department  granted for a second time approval for Safe Outdoor Space (SOS)  on  the city owned lots  at 1250 Menaul Blvd, NE.   The proposed Legacy Point Safe Outdoor Space is within walking distance of Menaul School, across the street from the T-Mobile Call Center and a Quality Inn & Suites, it borders Sunset Memorial Park and one block Carrington College and two apartment complexes and immediately East of the Freeway is the massive TA Travel Truck which is known in law enforcement circles for prostitution and illicit drug activity. Immediate south of the truck stop on University Blvd is the Crown Plaza Hotel

MAJOR GROUNDS FOR APPEAL OUTLINED

The Santa Barbara-Martineztown Neighborhood Association outlined the major  grounds for their appeal which  are worth noting:

1. The City Planning Department failed to follow City policies, procedures, and regulations required for the approval of the Safe Outdoor Spaces and applications for “special use” or “conditional use” zoning.

2. The city planning department “fast tracked” the Dawn Legacy application to approve the application just 8 days before the City Council could repeal the Safe Outdoor Space amendment on August 16 thereby acting in bad faith and to the determent of other property owners and businesses in the area.

 3. The City of Albuquerque Planning Department unilaterally decided to review and grant the Dawn Legacy Point application behind closed doors without any public input, without notice to adjacent and surrounding property owners and without any public hearings.

 4. The City of Albuquerque failed to notify the SBMTNA of the Safe Outdoor Space application filed by Dawn Legacy Pointe for 1250 Menaul NE and failed to allow input thereby denying the association due process.

 5. The City Planning Department gave preferential treatment to the Dawn Legacy applicants by working with the applicants to identify city property to be used for a Safe Outdoor Space  with the City Family and Community Services Depart agreeing to fund operating costs, with both city departments not affording other potential applicants the same opportunity.

 6. The city council failed to enact operating procedures for Safe Outdoor Space encampments and failed to provide direction to the City departments charged with approving or disapproving Safe Outdoor Spaces applications and allowed approvals to be made without any kind of objective, standards-based decision-making process.

7. Dawn Legacy submitted a plagiarized operating procedure of a nonprofit unsanctioned encampment in another city and the City accepted those operating procedures.

8. The security plan offered Dawn Legacy Pointe and approved by the city for the homeless camp is defective and insufficient for the campsite to ensure safety of the tenants.

9. The City of Albuquerque Planning Department and the Solid Waste Department  knowingly allow ed  the establishment of a public nuisance in the form of a Safe Outdoor Space in the Martinez Town Santa Barbara Neighborhood. The Planning Departments actions are tantamount to the City allowing Coronado Park to become the city’s DeFacto city sanctioned homeless encampment in violation of the city’s own public nuisance law and city ordinances.

 10. The City of Albuquerque Planning Department did nothing to provide processes for development decision of 1250 Menaul NE to ensure a balance of the interests of the City, property owners, residents, and developers and ensure opportunities for input by affected parties.

 11. The operation and existence of a Safe Outdoor Space encampment at 1250 Menaul NE  have had  a determental impact on the Martinez Town Santa Barbara neighborhood and will adversely affect property values and interfer with residence peaceful use and enjoyment of their residential properties.

12. The encampment as proposed for 1205 Menaul, NE will become a magnet for crime and prostitution, or illicit drug trade given that it is in close proximity to a truck stop known for prostitution and illicit drug activity amongst law enforcement.

13.  The location is directly across the street from a major call center and a Quality Inn & Suites and within walking distance of Menaul Boarding School and apartments. Occupants of the Safe Outdoor spaces are not confined and are free to go and come as they please and will  easily wind up uninvited wherever they want to go, including the truck stop, and disrupt the peaceful use and enjoyment at any one of those locations or engage in illicit activity themselves.

ALLEGATIONS MADE BY OTHER APPELANTS

In addition to the above grounds for the appeal offered by the Santa Barbara-Martineztown Neighborhood Association, other appellants have alleged their own unique argument againsts the Dawn Legacy Point Safe Outdoor Space.  Those argument include the following:

Menaul  School argued that the safety of their students will be placed in jeopardy by the encampment and that the encampment will attract other homeless to school grounds. The school  said uninvited homeless have already been on the school grounds resulting in security measures taken,

Sunset Memorial Park argued that it is already experiencing unacceptable  trespassing of the homeless requiring increasing security and cleanup efforts. Homeless have been reported trespassing on the cemetery grounds using fountains for bathing and defecating and interfering with burial ceremonies.  The cemetery believes that the Dawn Legacy Point Safe Outdoor Space will contribute to the problem.

The Crown Plaza reported an unacceptable number of the homeless have  accosted its clientele in its parking lot and on hotel property and that the Safe Outdoor Space will attract more homeless to the area or its  occupants to the motel soliciting from the hotel clientele.

FINDINGS OF HEARING OFFICER WITH ANALYSIS AND COMMENTARY

On February 27,2023 a daylong hearing was held on the second appeal of the city’s approval of the Dawn Legacy Point Safe Outdoor Spaces before Land Use Hearing Officer Steve Chavez.

The March 16 decision of Land Use Hearing Officer Steve Chavez contains an extensive  listing and a summary of all documents reviewed by the hearing officer. Those documents include all application documents submitted by Dawn Legacy Point for the SOD,  transcripts from the previous hearings and well over 1,000 documents submitted by the parties for review. The decision also lists all witnesses who testified.

The link to review the entire 48 page ruling is here:

file:///C:/Users/HP/Downloads/SOS%20Appeals.%20LUHO%20Proposed%20Decision.3-16-23.pdfco

Quoting in part the relevant portions of the March 16 written decision of City Land Use Hearing Officer Steven M. Chavez, the hearing officer found and ruled as follows:

1. “Two of the appeal claims included that the SOS approval process under the Integrated Development Ordinance was unconstitutional and that the approval process must be vetted in a quasi-judicial public hearing, subject to public notice.  Appellants argue that because the review process lacked  public scrutiny, the administrative review of SOS applications, without a hearing, violated  substantive and  procedural due process under law.”  The hearing officer ruled that the constitutional challenges were beyond the scope of review in administrative Land Use appeal hearings.

EDITOR’S COMMENTARY: The constitutional challenges may be beyond the scope of review in administrative Land Use hearings, but such arguments are routinely made in courts of law involving zoning issues.  The Planning Department’s  failure to give notice and conduct a hearing did in fact violate substantive and procedural due process under law and will be  grounds for litigation against the city which is likely if the city persists with the encampment.

2. “All seven appellants contended that the City Staff charged with reviewing the Dawn Legacy Point application were biased or were predisposed to approve it because the land proposed to be utilized for the use is owned by the City.” The hearing officer found that  the  facts and evidence presented did not establish actual bias, or even the appearance of bias, and  were based “conjecture and nothing more.”

EDITOR’S COMMENTARY: It was not “conjecture and nothing more” that the city was biased or predisposed to approve the SOS.  The Family and Community Services Director Carol Pierce and Deputy Director Lisa Huval testified to how they  met with and worked with the Dawn Legacy Director privately behind closed doors and with Planning Department officials to find city  land and assisted them with the application process and were offered city finances. Likewise, the Planning Department officials gave guidance to the application process as well.

3. “The Appellants argued that the environmental studies in the record establish that the proposed SOS site at 1250 Menaul Blvd. NE would be harmful to occupants of the SOS use.” Land Use Hearing Office Steve Chavez disagreed and found  that “the appellants failed to establish with objective evidence that the proposed site is environmentally harmful for a SOS temporary land use.

EDITOR’S COMMENTARY: It was  illogical and made no sense for the hearing officer to simply dismiss outright the results of the environmental studies. The land is the cite of the defunct quarry used for construction of the freeway and one environmental study did say portions of the land is contaminated and that remediation was needed of the contaminates.

4. “Three of the appellants argued that the SOS temporary use will become a public nuisance or  an anticipatory nuisance or that the use conflicts with the Menaul Sector Redevelopment Plan.” The hearing office found that the argument lacked substantive objective evidence.

EDITOR’S COMMENTARY:  There is both subjective and  objective evidence that the Dawn  Legacy  Pointe SOS will become a “public nuisnance” or “anctcipatory nuisance”.   The city’s “de facto”  city sanctioned homeless tent encampment Coronado Park that had to be closed is  the prime example of what can and will happen. The City was forced to close Coronado Park after it became a magnet for crime including murders and rapes and drug trafficking. The Menaul Sector Redevelopment Plan has been approved by the City Council and was created to  try and revitalize the corridor because of crime and the homeless frequenting the area and having an adverse impact on businesses.

5. All seven appellants argued in their appeal  that the Dawn Legacy Pointe application record,  which was reviewed by City Staff and ultimately approved,  amounted  to “less than substantial evidence”  which is necessary to obtain an approval under the Integrated Development Ordinance (IDO) for a SOS use.  After meticulously reviewing each document of evidence submitted and reviewed by City Staff,  the hearing officer  agree with the 7  appellants on this contention.  The land use hearing officer found that the Planning Department’s approval of the application was  “unsupported by the record” , and as such, he concluded that “it too lacked the requisite showing  necessary under the Integrated Development Ordinance.” The hearing officer found that the City’s decision notification letter “lacked any cognizable findings, and it is in direct contravention of what is required by the Integrated Development Ordinance.”

  EDITOR’S COMMENTARY The hearing officer was correct with this ruling.

6. “There are standards and general requirements applicable to nearly all temporary uses and specifically to a Safe Outdoor Spaces. The IDO places the responsibility on an applicant for a Safe Outdoor Space temporary use to discuss the temporary use with a Zoning Enforcement Officer (ZEO) to determine the location, duration, and potential impacts of the temporary use. The appellants argue that there was a lack of documentation in the record showing that this initial procedural step was met by the applicants and by the Zoning Enforcement Officer or a designee.” Other than oral testimony in the appeal hearings, Land Use Hearing Officer Chavez  found  no objective documentary evidence in the record that this procedural starting point  in the application process ever took place and no one within the City documented that a discussion on potential impacts of the SOS use at 1250 Menaul Blvd. 822 NE ever occurred.

EDITOR’S COMMENTARY The hearing officer was correct with this ruling.

7. “The Integrated Development Ordinance has numerous requirements for an SOS applicant to satisfy, all of which must be supported by substantial evidence. Within the IDO, the review of an SOS application requires “as a matter of law” to  make findings, “each” supported by substantial evidence.” The appellants contended and the hearing officer agreed, that the Operational Plan, the Security Plan, the provision of onsite support, and the offering of services, all required under the IDO for a Safe Outdoor Space were are inadequate to establish substantial evidence for approval.

EDITOR’S COMMENTARY The hearing officer was correct with this ruling.

8. “DLP’s [Dawn Legacy Point] plans also have additional shortfalls with the precision of what types of services it will offer at the SOS site, specifically with the services categorically required in IDO, … The record is bereft of any evidence that “job training,” “education services,” “recreational services, and activities for use by the occupants” can or will be offered by or through DLP.

 EDITOR’S COMMENTARY The hearing officer was correct with this ruling.

 FINAL  RULING

Land Use Hearing Officer Chavez made the following rulings:

“I find (1) that there is an insufficient factual basis to approve the application; the application is not supported by substantial evidence to satisfy explicit Use-specific Standards in the IDO; and

 (2) that the decision approving the application is not supported by substantial evidence and violates at least two IDO requirements for such decisions. To expeditiously dispose of the matter, I do not propose another remand. …  

The decision approving [Dawn Legacy Point’s] application for a Temporary [Safe Outdoor Space ] Use use permit should be reversed and the DLP application should be denied.

…

I propose that the City Council reverse City Staff’s decision and deny the application.”

NOTICE OF CITY COUNCIL HEARING

On April 3, the Albuquerque City Council will consider Zoning Enforcement Chavez’s recommendation to reverse the Planning Department’s decision.

REACTION TO RULING

Karl Holme, executive director of the Greater Albuquerque Hotel and Lodging Association, lauded the decision of the land use hearing officer.  Holme  said her organization’s members support city efforts to find solutions for the unhoused, but the two city lots at 1250 Menaul Blvd, NE   are too visible and sends the wrong message to people from out of town driving through on the interstate. Holme said this:

“That’s our one chance as a city to really promote Albuquerque. … It’s a giant billboard and it really should be a pleasant focal point. It’s kind of like our front door.”

John Salazar, an attorney with  Rodey Law Firm  who represents the Crowne Plaza Hotel, also agreed with the decision.  Salazar said homeless people who walk up and down the Menaul corridor already “make it difficult for the hotel to do business” by accosting guests in the parking lot and inside the hotel.

Salazar also noted the City council recent approval of the Menaul Metropolitan Redevelopment Area and said this:

“It makes no sense to put a tent encampment at the western entrance of the Menaul redevelopment area  … [which will  attract even more homeless].” 

Maria Rodriguez, interim spokeswoman for the city Planning Department, said the land use hearing officer’s denial was because Dawn Legacy Pointe “didn’t check all of the boxes to get approved.”  In particular, the safe outdoor space is required to have 24-hour on-site services, but the application instead indicated it would provide on-call services. Rodriguez said this:

“They are welcome to reapply if they meet that requirement the next time around. … It just really seems like it was a small kind of technicality.”

The links to relied upon and quoted news sources are here:

https://www.abqjournal.com/2583124/safe-outdoor-space-on-menaul-hits-a-snag-as-hearing-officer-sides-wit.html

https://www.kob.com/new-mexico/report-cabq-land-officer-recommends-appeal-for-safe-outdoor-space-site/?utm_source=zetaglobal&utm_campaign=thumbnails&utm_medium=onsite

MENAUL METROPOLITAN REDEVELOPMENT AREA APPROVED 

Within the City of Albuquerque, there exists  what are referred to as Metropolitan Redevelopment Areas.  There are 19 known and approved Metropolitan Redevelopment Areas (MRA). Each redevelopment area has an adopted redevelopment plan that guides the City’s redevelopment strategy.  The criteria for a metropolitan redevelopment areas includes “the property’s potential for reinvestment given site location, whether reinvestment in the property would catalyze investment in the MRA area broadly and how inclusion of the area  will  further the investment and development goals and strategies.”  The inclusion of the property in a metropolitan redevelopment area “runs with land” means the requirements  would be in place for future owners and projects.

In February and March the Albuquerque Development Commission and the Albuquerque City Council respectively approved Menaul Metropolitan Redevelopment Area.   The Menaul Boulevard corridor is characterized by its important role within the economy of Albuquerque. The area is well located and central to the city with access to both Interstate 40 (I40) and Interstate 25 (I25) and in close proximity to the rail lines and the airport. There are stable and well-established neighborhoods to the north.

Menaul is home to many locally owned small businesses that provide retail, dining options, and other services, as well as larger retail and hospitality chains. Generally, the retail and service business are located along Menaul, with hotels located in proximity to I25 and I40. Generally, light industrial and storage uses are located between Menaul and I40, and between Menaul, Candelaria, I25 and the North Diversion channel.

While this is a very important area for supporting Albuquerque’s economic development, it is also an area that has problems with crime, and vacant or under-utilized buildings. The purpose of this project is to support the redevelopment and ongoing economic development of the Menaul Boulevard area. The area that this report will be focusing on are all the non-residential properties in the area bounded by I25 (west), Candelaria (north), San Mateo (east), and I40 (south).

MENAUL PROPERTY BEING LOOKED AT FOR  GARBAGE TRANSFER STATION

In addition to the Dawn Legacy Pointe plan to establish and operate a “Safe Outdoor Space” at 1250 Menaul Blvd, NE to provide a tent encampment for 50 women who are homeless and who are “sex-trafficking victims”, the city’s Solid Waste Department wants to use 1 of the 2 adjoining city owned parcels  of land for a garbage transfer station.  The transfer station would allow individual city trash trucks to drop off their loads so larger vehicles could then transport the garbage to the landfill. It has been reported that while the city  has looked at other sites for the garbage transfer station, the Menaul property is the only location currently under consideration.

COMMENTARY AND ANALYSIS

It is downright disgusting that Maria Rodriguez, interim spokeswoman for the city Planning Department, seriously downplayed the hearing officers ruling saying the denial was because Dawn Legacy Pointe “didn’t check all of the boxes to get approved”  and went on to encourage further application  before the City Council decides the case and by saying  “They are welcome to reapply if they meet that requirement the next time around.”  The comments were out of line and insulting to the appellants who raised serious, legitimate objections to the Safe Outdoor Space and who have been essentially pulled through the ringer by the City Planning Department and the Family Community Services Department who are  hell bent on granting the application and mandating two separate appeals.

PREFERENTIAL TREATMENT

Despite the Hearing Officers ruling that the allegation of biasness was unfounded and subject to speculation, it is clear that the Planning Department and the  Family and Community Services Department went out of their way to give preferential treatment and financial aid to the applicants for a Safe Outdoor Space for unhoused woman who are “sex-trafficking victims”. Never mind the fact that victims of sex trafficking need stable and permanent housing and services and placing such women in tents to live is very degrading and revictimizes them again.

KELLER MUST BE HELD ACCOUNTABLE

Safe Outdoor Spaces have been  one of the most divisive issues in the city for the last year. Safe Outdoor Space city sanctioned homeless encampments are not just an issue of “not in my back yard,” but one of legitimate anger and mistrust by the public against city elected officials and department employees who have mishandled the city’s homeless crisis and who are determined to allow them despite strong public opposition.

It was  Mayor Tim  Keller who first advocated  for “Safe Outdoor Spaces” and who snuck  $950,000 in his 2022 general fund budget for them.  The City Council haplessly agreed  to  Safe Outdoor Spaces and then reversed course after public outcry and the attempt to exclude them failed with Keller vetoing the measure.

Only in the screwed up “Burque World” of Mayor Tim Keller can it be imagined that 2 adjoining lots of prime commercial property own by the city worth upwards of $7 million would be used for a Safe Outdoor Space  for  a tent encampment for women who are “sex-trafficking victims” and then the city would  construct and run  a “garbage transfer station” next to it.  As has been originally proposed both the Safe Outdoor Space and the Solid Waste Transfer station would literally border on the West of the Menaul Metropolitan Redevelopment Area. The optics are so very representative of the kind of failed Mayor Tim Keller really is and how messed up he operates and thinks.

The general public has legitimate concerns that Safe Outdoor Space homeless tent encampments will become crime-infested nuisances, such was the case with Coronado Park. The homeless crisis will not be solved by the city but must be managed with permanent housing assistance and service programs, not nuisance tent encampments.

NOTICE OF PUBLIC HEARING

On April 3 the Albuquerque City Council will met and consider Zoning Enforcement Chavez’s recommendation to reverse the Planning Department’s decision to grant the Dawn Legacy Point application. Voters and residents are urged to contact and voice their opinion and tell all city councilors to vote YES on AFFIRMING the  Zoning Hearing Officers decision and to deny once and for all the Dawn Legacy Point Application for a Safe Outdoor Space.

Their phone number and email address are:

CITY COUNCIL PHONE: (505) 768-3100

CITY COUNCIL AND SUPPORT STAFF  EMAILS

lesanchez@cabq.gov
louiesanchez@allstate.com
bmaceachen@cabq.gov
ibenton@cabq.gov
namolina@cabq.gov
kpena@cabq.gov,
rmhernandez@cabq.gov
bbassan@cabq.gov
danlewis@cabq.gov
galvarez@cabq.gov
patdavis@cabq.gov
seanforan@cabq.gov
tfiebelkorn@cabq.gov
lrummler@cabq.gov
trudyjones@cabq.gov
azizachavez@cabq.gov
rgrout@cabq.gov
rrmiller@cabq.gov
LEWISABQ@GMAIL.COM
nancymontano@cabq.gov
cortega@cabq.gov
cmelendrez@cabq.gov

 

On Saturday March 18, the 60 day 2023 New Mexico Legislative Session came to an end at 12:00 Noon. In the last day and half, two major bills were enacted, Those bills were Senate Bill 13 protecting  abortions providers and House Bill 547, the tax package.

SENATE BILL 13

On Friday, March 17, the day before the 2023 New Mexico Legislature was scheduled to adjourn , the House enacted Senate Bill 13 with a vote of  38-30. All Republicans opposed the bill and 6 Democrats voted against it.  The bill is intended to shield doctors and nurses in New Mexico from out of state investigations targeting reproductive and gender-affirming care. The House action comes after the Senate passed the bill 26-16.  The bill now goes to Gov. Michelle Lujan Grisham and she is expected to sign it into law.

Senate Bill 13  makes law an executive order issued by Lujan Grisham in June 2022, just days after the U.S. Supreme Court overturned the landmark case of  Roe v. Wade decision allowing states to determine their own laws on abortion.  On March 16, Governor Lujan Grishma signed House Bill 7 into law that prohibits government public bodies in New Mexico from interfering with access to abortion or gender affirming care.

Senate Bill 13 centers on action originating beyond state lines.  Arizona and Texas outlaw aiding or abetting abortion.  New Mexico is increasingly serves patients from those states and elsewhere. State public agencies will  be prohibited from releasing information or otherwise cooperating with civil or criminal investigations launched from outside the state into medical providers who engage in “protected health care activity” in New Mexico, such as abortion or gender-affirming care.

A person harmed by a violation of the law could file a lawsuit seeking damages of at least $10,000 per violation.  Senate Bill 13  also make it illegal for a 3rd  party to transmit information related to a person’s or entity’s abortion or gender-affirming care with the intent to harass, humiliate or intimidate them.

It was 2021  Governor Lujan Grisham signed a bill repealing the 1969 state law criminalizing abortion  ensuring the1969 law  could not  be enforced if the Supreme Court overturned federal abortion rights. Democrats during the 2023 Legislative Session have aggressively pushed to strengthen abortion rights following the  U.S. Supreme Court decision ruling that individual states need to decide the issue of abortion.

In the 2020 Democratic primary campaigns, a woman’ right to choose and abortion played a major role in changing the makeup of the Legislature  when long serving  anti-abortion Democrats lost their Senate seats, clearing the way for the repeal of the 1969 law criminalizing abortion.

REACTION TO PASSAGE OF SENATE BILL 13

Lujan Grisham proclaimed Senate Bill 13  on abortion rights as “transformative” given the national political climate. The Governor said this:

“New Mexico stood up for science, for women, for LGBTQ families and individuals.”

Santa Fe Democrat State Representative  Andrea Romero  said the legislation adopted is designed to thwart out-of-state legal attacks. She had this to say:

“We’re in completely uncharted territory with the types of laws we’re seeing on the books now. … That’s why we’re here today — to ensure New Mexico will be a safe space for folks seeking care.”

Republican lawmakers vigorously contested the proposal attempting to stop enactment at every step. Republicans  described  Senate Bill 13  as an inappropriate strategy that would put New Mexico at odds with other states. Alamogordo Republican  Representative John Block said this:

“I don’t want New Mexico to be isolated as its own island”.

Farmington Republican Representative Rod Montoya said Senate Bill 13  would abridge free speech rights and expose anti-abortion protesters to legal liability.  Montoya also argued the bill could weaken oversight of predatory physicians or medical providers who are targeted by other states for legitimate reasons. Montoya said this:

“What we’re left to believe here is that every abortion provider is altruistic and I just don’t think we can go that far.”

The link to quoted news source is here:

https://www.abqjournal.com/2582809/responding-to-anti-abortion-laws-in-neighboring-states-new-mexico-lawmakers-adopt-proposal-intended-to-protect-health-care-providers.html

SENATE ADOPTS  HOUSE BILL 547 TAX PACKAGE

On March 17, shortly after midnight,  the NM Senate  voted 33-9 to approve the final version  of a massive tax package that will  provide $500 rebates to taxpayers and a phased  in reduction to the gross receipts  tax.  A group of  3  House Representative and 3 Senators conducted several open negotiating sessions where  they agreed on changes to the state’s film incentive program and a pared-back alcohol tax hike and other tax provisions.

TAX PACKAGE AGREED UPON

House Bill 547 tax package passed includes the following major provisions:

All New Mexicans who filed 2021 tax returns will get $500 rebate checks by this spring. Married couples filing jointly would receive $1,000 checks. The $500 rebates are less than the $750 rebate amount that Gov. Michelle Lujan Grisham proposed.

A phased in a 0.5% point reduction in the state’s gross receipts tax over the next four years. Those tax cuts could also be automatically undone if revenue levels drop significantly.  The  tax cut represents upwards of  $1 billion a year in savings once its fully phased in by 2027.

A  20% alcohol tax increase that will impose about a 1%  per drink increase on beer  and  a two-cent per drink increase on spirits. Revenue generated by the tax will  be used to bolster alcohol treatment programs in the State.  New Mexico has the highest per capita rate of alcohol-related deaths.

Veterans and retirees will get a tax exemption on military retirement pay up to $10,000 in 2022, then increasing to $30,000 in 2024.

Expansion of  New Mexico’s film incentive program  that triples the amount of allowable incentives per film project from $5 million to $15 million  for productions by Netflix or other studios that are members of a state film partnership. The plan limit the amount of annual spending on such productions to no more than $40 million per year.

A tax break for teachers’ who purchase school supplies to an expanded child tax credit.

NO TAX “PYRAMIDING” PROPOSAL

What is glaring from reading the enacted  House Bill 547 is the widely discussed  proposed tax exemption for accountants, architects and other professional services that had been proposed as a way to reduce tax “pyramiding,” or taxes being levied several times on the same goods or services.  The tax “pyramiding” legislation had bipartisan support and the Governor’s support. The tax pyramiding provision proposal has drawn fierce opposition from Albuquerque and other New Mexico cities and counties, however, as city officials argued it would reduce their revenue streams and complicate efforts to hire more police officers.

 REACTION TO PASSAGE OF HOUSE BILL 547 TAX PACKAGE

Legislators said they did not  agree with all parts of the tax package, but said the  good provisions outweighed the bad.

Governor Lujan Grisham had urged legislators to trim back the tax package saying it “cuts too deep, too quickly” and could lead to future spending cuts if revenue levels decline.

Rio Rancho area Republican Senate Minority Leader Craig Brandt lauded Governor Michelle Lujan Grisham for her role in helping broker a deal on the tax package and said this:

“Things happen up here; you change your mind sometimes. …  A lot of the things that I asked for I got, so I appreciate that.”

Democrat Senate Majority Leader Peter Wirth said this:

“Each of us have our own opinions, but it’s time to compromise and get this done. … I look at this is a first step —not the end.  … The tax bill also contain[s] a significant gross receipts tax reduction, and one of the key elements of that of that bill, and that gross receipts deduction is a trigger, so that we are sure that if those if the revenues go down, that gross receipts tax that’s in there, we’ll back off.”

Albuquerque area Democrat Senator Antoinette Sedillo Lopez expressed disappointment about the alcohol tax and said this:

“We had an opportunity to make transformational change to address a huge social problem in our state, and we didn’t do it.”

The link to quoted news sources are here:

https://www.koat.com/article/tax-package-heads-to-governors-desk/43355679

https://www.krqe.com/news/politics-government/legislature/legislative-session-closes-1-3-billion-tax-package-awaiting-governors-signature/

https://www.abqjournal.com/2583054/final-tax-package-comes-into-focus-after-lawmakers-reach-tentative-compromise-on-alcohol-tax-film-incentives.html

COMMENTARY AND ANALYSIS

Talk about cutting it close with enactment of both House Bill 547  and Senate Bill 13.  As the saying goes, “Better late than never!” The 60 day session ended on March 18 at 12 noon.  The legislative process has always been very messy, but it does work when legislator’s on both sides want it to work as evidenced with enactment of the House Bill 547 tax package.

 

On March 16, with less than two days left in the 2023 legislative session, two major bills have been enacted by the 2023 New Mexico Legislature, one which has been signed into the law by the Governor and the other on its way to the Governor for signatures

HOUSE BILL 7 SIGNED BY GOVERNOR

On March 16  Governor  Michelle Lujan Grisham signed House Bill 7,  the Reproductive and Gender-Affirming Health Care Act.  House Bill 7 prohibits discrimination in reproductive healthcare and gender-affirming healthcare services.  It prohibits municipalities and counties from passing ordinances that directly or indirectly discriminate against either reproductive and gender-affirming care.

It was on February 26, 2021, Governor Michelle Lujan Grisham signed a bill repealing the 1969 abortion ban. The 1969 law criminalized abortion to end a woman’s pregnancy except in certain circumstances, such as rape and incest. The repeal of the 1969 law criminalizing abortion resulted in abortions being made lagal in the state

On June 22, 2021 the United States Supreme Court released its decision in the case of Dobbs v. Jackson Women’s Health Organization wherein the Supreme Court  overruled and reversed the cases of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and 50 years of constitutional law precedence ruling  that a woman does  not have constitutionally protected right to an abortion.  The US Supreme Court ruled the authority to regulate abortion was  returned to the individual states and their elected representatives.

As a direct result of the Supreme Court’s Dobb’s decision, abortion and woman’s reproductive rights became a defining issue in New Mexico’s 2022 Gubernatorial race between incumbent Democrat Governor Michelle Lujan Grisham and Republican Mark Ronchetti. Ronchetti made abortion and imposing limits on a woman’s right to choose a center piece of his campaign and suggested a “reasonable policy” that proposed banning abortion after 15 weeks of gestation.  Lujan Grishasm for her part pushed back and said abortion was a woman’s decision and must remain legal in the state.

In response to the Dobbs decision, the cities of Clovis and Hobbs and Lea and Roosevelt counties passed anti-abortion ordinances that impact abortion clinics’ ability to apply for licenses in those political subdivisions and also place restrictions on medication abortion.

House Bill 7 enables  the attorney general or district attorneys to sue an entity responsible for a violation. The court could apply remedies, including monetary damages. The court can also apply a $5,000 civil penalty or actual damages against the entity responsible for the discrimination.

House Bill 7  is sponsored by Rep. Linda Serrato, Rep. Charlotte Little, Rep. Kristina Ortez, House Majority Whip Rep. Reena Szczepanski, and Rep. Janelle Anyanonu.

The Governor said this about the legislation:

“New Mexicans in every corner of our state deserve protections for their bodily autonomy and right to health care. …  I’m grateful for the hard work of the Legislature and community partners in getting this critical legislation across the finish line.”   

https://www.kob.com/new-mexico/new-mexico-governor-signs-reproductive-and-gender-affirming-health-care-act/

SENATE BILL 523 SENT TO GOVERNOR FOR SIGNATURE

On March 16, a mere 48 hours after it was first introduced, Senate Bill 523 which amends the Medical Malpractice Act was unanimously passed by the House.  Governor Lujan Grisham and Senate leaders announced the compromise on March 14. Democratic Senate Majority Leader Peter Wirth and Republican Minority Leader Gregory Baca had been working together on this bill since a Senate committee set it aside earlier versions this month.

Changes to the Medical Malpractice Act was one of the most contentious and very emotional issues this year in the 2023 New Mexico legislature to deal with  medical malpractice claims and the need to place reasonable caps on such claims.  At the very core of the issue is the 2021 rewrite of the medical malpractice law.

The changes to the medical malpractice law centers on medical clinics that are not owned by hospitals. Surgical centers and urgent care clinics independently owned by physicians were included with larger hospital insurance coverage requirements.  The potential closure of independent clinics loomed large because of the medical malpractice insurance coverage requirements.  Much smaller, independent medical clinics are a critical part of New Mexico’s health care system network, especially in rural New Mexico.

The 2021 rewrite made it impossible for New Mexico licensed doctors to secure and afford medical malpractice insurance with a $5 million cap when they practiced in independent outpatient clinics. Some standalone emergency rooms, urgent care centers and surgical clinics with maximum malpractice payouts with an insurance coverage cap set at $750,000 would have seen the cap rise to $6 million by 2027 under the 2021 law rewrite  that included them in the same category as hospitals.  Independent outpatient clinics were faced with the crisis of being unable to obtain the medical insurance they needed to continue operating.

Senate Bill 523 places a $1 Million cap on claims for independent healthcare facilities, such as urgent care, ambulatory surgical centers, and free-standing emergency rooms that are not hospital controlled. Had the Medical Malpractice Act  not been amended, the cap would have increased to $5 Million in 2024 and resulted in the closure of many small healthcare facilities that would not have been able to afford the insurance.

With passage both the House and Senate, malpractice insurance compromise now goes to Governor Michelle Lujan Grisham’s desk for her signature.

https://www.kob.com/new-mexico/compromise-measure-on-medical-malpractice-legislation-headed-to-governors-desk/

COMMENTARY AND ANALYSIS

Talk about cutting it close with enactment of both  House Bill 7 and Senate Bill 523.  The 60 day session ends on March 18 at 12 noon.  The legislative process has always been very messy, but it does work when legislator’s on both sides want it to work  as evidenced with enactment of the compromise Medical Malpractice Act.

The blunt truth is time has totally run out on major bills, especially the gun control measures.  Many of the gun control bills have not  even had 1  committee hearing, only a  few have made it through just 1  chamber and only House Bill 9 known as “Bennie’s Bill” dealing  with unlawful access to firearm by minor’s has been enacted and signed into law by the Governor.

With only two full days remaining in the 2023 New Mexico legislative session, the New Mexico House a Representatives, on a voice vote,  passed House Bill 2 and sent the $9.6 billion budget to Governor Michelle Lujan Grisham. It is the largest budget enacted in state history as a direct result of $3.6 Billion in additional revenue from oil and gas production.  Ongoing spending contained in the bill have been increased by 13.7% or about $1.2 billion over current levels.

The House vote was a concurrence with the Senate’s amendments to House Bill 2.  The Senate amendments include an additional $130 million in recurring spending for initiatives to address hunger and new investments in the New Mexico Opportunity Scholarship college tuition fund. The Senate  amendments authorized more spending than the House but the budget still has 30% in reserves projected.  House Bill 2 contains funding for 6% raise for state employees and educators, sharp increases in prekindergarten and child care assistance, higher Medicaid reimbursement rates intended to better compensate doctors and appropriates $100 million in one-time funding for a law enforcement officer recruitment fund.

BUSGET SIZE CONDEMNED AND ALLLEGATIONS OF “SHENANIGANS”

The passage of House Bill 2 did come with drama.  The size of the budget was condemned and accusations of lack of transparency and behind closed doors shenanigans were made.

During the House debate, accusations were made about the way the Senate Finance Committee amended the budget and added more funding just a day after the committee had already approved the bill. The additional Senate amendment annoyed Republican senators on the committee  and those Republicans  raised questions about “behind-the-scenes deals”  and political pressure for changes that may have come from the Governor’s Office.

Artesia Republican Representative Jim Townsend and other  House Republicans expressed concern about the 14% increase in spending saying it is “troublesome” in a state where so much revenue comes from the boom-or-bust oil and gas industry. Townsend said this:

“I don’t think we can sustain it.”

Gallup Democrat Patty Lundstrom, D-Gallup,  long serving  the chair of the House Appropriations and Finance Committee before House Speaker Javier Martínez removed her at the beginning of the session,  asked  whether the Senate’s amendments were proper and admonished the Senate Committee.  Lundstrom urge the House to reject the Senate amendment and said this during debate on the house floor:

“We talk about transparency and we talk about how everybody has to see everything … that is not my impression of what happened in the other chamber.  I think it was not handled properly. … I hope the House stands its ground and doesn’t roll over for the other side. … I talked to different members on the Senate Finance Committee who said that [when] the [budget] bill rolled out, they didn’t know what was in it because of closet negotiations happening without their input. …   We may not be sure [what] shenanigans happened. …  I’m concerned when a group tries to pull the wool over the eyes of its own committee.”

Las Cruces Democrat Representative Nathan Small, who succeeded Lundstrom as Chairman of the powerful House Appropriations committee said he was comfortable with the Senate changes. Small said this:

“We are investing in education. We are investing in infrastructure. We are making the largest investment in public safety, and we are saving more money than we have ever saved before. … [The budget] leaves a reserve fund of roughly 30%. [I am keeping a] cautious eye on oil and gas revenues.”

SENATE BUDGET AMENDMENTS QUESTIONED

It was on Sunday, March 13, that the Senate voted to approve House Bill 2 and the $9.6 billion budget, but it did so with amendments which required the bill to go back to the House to consider the budget as amended by the Senate.  The full Senate voted 25-16, with all Democrats except Tohatchi  Senator Shannon Pinto voting in favor and all Senate Republicans voted against the bill.

The Senate Finance Committee had approved revisions to  the budget House Bill 2  on Saturday  March 11, but the committee voted to bring back the spending plan  for additional amendments before it advanced to a full senate chamber vote later in the day. One particular budget line-item that drew strong objections was $2 million for the Department of Game and Fish to protect threatened species.  The appropriation was deleted  in  the  previous version of the budget bill and it  was restored.

Many of the budget bill changes adopted by the Senate were in response to concerns raised by the Governor’s Office after the House passed its version of House Bill 2. The areas of disagreement include proper funding levels for the Opportunity Scholarship, a tuition-free college program championed by Lujan Grisham, and child care assistance programs. The final changes also included revised budget language for how roughly $250 million should be spent to extend New Mexico’s annual public-school calendar.

Democrats and Republicans voiced frustration about the last-minute changes to the spending plan.  Some lawmakers defended the  revisions and said they were necessary to ensure a budget bill that Gov. Michelle Lujan Grisham would  sign. Gallup area Senator George Muñoz, the Senate Finance Committee’s chairman, said he tried to be transparent in his handling of House Bill 2 after it passed the House last month, but acknowledged difficulty in modernizing a system that has long been shrouded in secrecy.

The last-minute Senate amendments drew sharp accusations from Republican  senators who suggested the Governor’s Office and some top lawmakers had conspired on the changes. Broadview Republican Senator Pat Woods said this during the committee hearing:

“We shouldn’t be putting the stuff in here without running it through the process, letting every legislator in the House vote for it, before we just stick it in the dadgum budget as a personal piggy-bank.”

Senate Minority Whip Craig Brandt, R-Rio Rancho, said this on the Senate floor:

“There’s a lot of us that still don’t have any idea what’s going on with the budget.”

Some Republican senators suggested the last-minute changes represented an end-run of sorts around this year’s budget-drafting efforts. Elephant Butte Republican Senator  Crystal Diamond, said during Sunday’s debate:

“It’s just unfortunate that our values and our priorities got undermined.”

The links to news sources quoted are here:

https://www.koat.com/article/new-mexico-legislature-2023-budget/43337294

https://www.kob.com/new-mexico/legislature-passes-budget-other-bills-move-forward/

https://www.krqe.com/news/politics-government/legislature/record-9-6b-spending-plan-heads-to-new-mexico-governor/

https://www.abqjournal.com/2582091/final-approval-granted-to-budget-sending-9-6b-spending-plan-to-governor.h

https://www.santafenewmexican.com/news/legislature/house-sends-budget-bill-to-governor/article_607c2db6-c337-11ed-b852-fb14c35abbe9.html

https://www.abqjournal.com/2581253/senate-votes-25-16-to-approve-massive-spending-bill-but-some-lawmakers-unhappy-about-political-arm-twisting.html

COMMENTARY AND ANALYSIS

Talk about cutting it close and with politcal drama and a few sour grapes from both Democrats and Republicans thrown in for good measure.  The legislative process has always been very messy and the legislature delaying as long as it did enacting the 2023 budget did not help in the least, but that’s New Mexico politics.

The 60 day session ends on March 18 at 12 noon. The Governor has until April 7 to act on the budget and she has the power of line-item veto where she can review specific appropriations and line item.

Just two years ago, the Governor line item veto a number of capital improvement appropriations sponsored by individual legislators and all hell broke loose with threaten overrides by the legislature. To quell the controversy, a special session was held to deal with the capital improvements budget.

The Governor would be wise to talk to more than a few legislator’s before she excercise her line item veto authority.