On April 25, after 8 and a half hours of contentious and emotional hours of testimony, the Edgewood Town Commission voted 4 to 1 to pass an ordinance restricting the operation of abortion clinics. Edgewood is a small rural community of about 6,000 residents separated by the Sandia Mountains East of Albuquerque.

The debate included more than 2 hours of executive session while officials consulted with attorneys and 3 hours of public comment lasting into the early morning hours of April 26.  Well over 200 people packed the Edgewood Town Office commission chambers until there was standing room only and spilling over to an overflow room.

Edgewood’s ordinance is based on the Comstock Act which is federal legislation from the 1870s that prohibits the mailing of “obscene material,” including medication or equipment used in abortions. Edgewood’s ordinance states that a private citizen can sue anyone, with some exceptions, if they believe the person has violated the Comstock Act. The town of Edgewood itself does not have any enforcement powers under the ordinance.  Under the ordinance, a  plaintiff  could be awarded at least $10,000 as well as costs and attorney fees with damages capped at $100,000. The Edgewood ordinance is essentially plagiarized from Texas law and another ordinance enacted by another New Mexico rural community.

Edgewood Town Commissioners Brennan, Jerry Powers, Sterling Donner, the sponsor of  the ordinance, and mayor Audrey Jaramillo voted for the ordinance. Commissioner Phil Anaya voted against it.   Edgewood commissioners acknowledged themselves that the ordinance will be difficult to enforce and that legal challenges will be very costly after the New Mexico Municipal League insurance pool refused coverage to Edgewood. The Edgewood Town commission agreed to accept free legal representation from Texas-based attorney Jonathan Mitchell who is known as the architect of the anti-abortion legislation in Texas and local government restrictions on abortion within several states. But how long that will last is unknown, until of course he leaves town.

Governor  Michelle Lujan Grisham signed two abortion-rights bills that override local ordinances aimed at limiting access and shield providers of abortions from prosecution by out-of-state interests.  It was the first time a local governing body had debated what supporters call a “de facto abortion ban” after state legislators passed House Bill 7, which prohibits municipalities from restricting access to reproductive health care. That bill goes into effect in mid June.

PROS AND CONS

There were roughly 30 Edgewood residents who attended out of the more than 200 in attendance who spoke.  About half of the Edgewood residents were in favor of the ordinance and half were against it. Among those from other communities around the state, the majority spoke in favor.

Supporters of the ordinance urged commissioners to send a message with their vote that keeps out local abortion providers including pharmacy chains. Impassioned speeches equated abortion with murder. Opponents of the ordinance accused commissioners of overstepping their authority and threatening access to medication used not only in abortion but also used to treat miscarriages.

Edgewood Mayor Audrey Jaramillo repeatedly warned the crowd to “stay respectful”.  She noted the commission chambers were too crowded for many people to enter.  She read her concerns into the record and said this:

“Someone has to stand up for the defenseless babies. May we all agree — pro-baby.”

Edgewood Town Commissioner Sterling Donner was very defiant in his support of the ordinance and had this to say:

“What this does is it paints a picture to anybody who is thinking about possibly moving to Edgewood, painting this as not a friendly place for them to be. … That we do not want them here . That’s what this does. This has teeth. … We want to join our allies in the state that are doing the same things. …  It’s time to rise up, it’s time to fight … for the rights of these unborn children.”

Edgewood Commissioner Jerry Powers said lawsuits seem almost inevitable. He said  it’s important that the ordinance is ultimately supported by community members and put it this way:

“ I don’t think it’s the smart move to jump in like this. I just want the people to understand that the consequences of this that have been laid out by the attorneys, of jumping into this battle and not waiting it out for a couple of months for the [NM] Supreme Court, could be serious to Edgewood.  …  When I say serious, I mean serious.  It will tie up a lot of the staff time, it will time up a lot of our attorney time”

Edgewood resident Elvira Maxwell said she has been to commission meetings before but this was the “hottest issue” she has ever seen it. Maxwell said this:

“You can’t be in the middle, you can’t say ‘It’s my body, I should have a choice, it’s my body.’ Well, God didn’t design us like that. … You say ‘This is right this is wrong.”

Edgewood resident Linda Burke said she did not think the crowd of supporters of the ordinance was representative of how residents of the town feel.  Burke said this:

“Why put us through this? Why cause the legal turmoil it’s going to cause? Why cause the distraction away from all of the work that needs to be done. … All of our staff, if they’re distracted from finding funding and making sure things are happening, how does that bode well for our town?” 

Edgewood resident Erika Anderson said the ordinance threatens to pit neighbors against each other in lawsuits and tear the community apart.  She said this:

“It’s really unnerving to see such a divisive ordinance trying to pull apart our community and our neighbors. … I would really, really want you to consider … the risk you are putting our town at by trying to be a leader or make a stand in this type of thing.”

After the vote was taken, loud applause ensued. Commissioner Ken Brennan warned that it was setting up the town for a costly and time-consuming legal fight.

“This is going to be a long battle, it’s going to be a long fight and it’s going to be expensive. … I’m holding everybody who has already said it today and in the last meeting that we had that they’re going to support us with their voices and their checkbooks. This is going to be difficult and it’s going to be hard. I pray to God that we all survive and that we make this a better place for everybody.”

OUT OF TOWN AGITATORS

Santa Fe area Democrat State Representative Andrea Romero attended the meeting in support of those who are in opposition to the ordinance. She was one of the sponsors of House Bill 7  that passed the 2023 Legislature. House Bill  7 prohibits municipalities from restricting access to reproductive health care. Romero said she attended the meeting to promote  “understanding of the laws that we have [on]  the books and the protections that we have in place for choice.”

Romero believes the Edgewood ordinance violates New Mexico law.  Romero said this:

“This has been very clear throughout the meeting that this law was proposed by someone who has been proposing these laws in Texas and now he’s brought them to Edgewood. … They’re coming from out of state and they’re playing out these very litigious wars in our own state.” 

COALITION OF CONSERVATIVES IN ACTION

Many out-of-town agitators went to the meeting to show their support for passage of the Edgewood ordinance, including members of the Coalition of Conservatives in Action (CCA). The Coalition of Conservatives in Action is Las Cruces based citizen’s activist organization.

Quoting the Coalition of Conservatives in Action  web page, its MISSION STATEMENT is as follows:

“CCIA’s mission is to challenge, engage and hold accountable elected and appointed officials, – City Council, School Board, County Commission, State Senators and Representatives, by educated and informed citizens through civil discourse in order that effective change is realized. We believe that all change begins at the local level.  Through the Will of God and by critical thinking and merit, not by race, ethnicity, or victimhood, CCIA shall advocate for and empower citizens at every level of the political process for the advancement and quality of life of our local communities and state.”

Quoting the Coalition of Conservatives in Action  web page, its VISION STATEMENT is as follows:

“Over time, we have allowed ourselves to be enslaved by a corrupt government.  Our civic duty is to challenge government overreach, hypocrisy, and injustices through civil discourse. CCIA envisions a community where all citizens embrace the duty to ensure that candidates reflecting core American values of freedom, equality and justice are elected to office and hold them accountable and responsible for those values.”

Quoting the Coalition of Conservatives in Action web page, its VALUES STATEMNT provides as follows:

“CCIA is an American 1^st, grassroots, IN-ACTION advocacy organization. We are a coalition of independent citizens who are non-partisan, non-denominational, color- and identity blind.  All are welcome to join our ranks toward a common goal to IMPROVE or CHANGE OUR COMMUNITY.  As “We the People”, we stand firm in upholding our God-given freedoms and rights through engaging in all aspects of the political process regardless of party affiliation. At CCIA’s core and foundation is Faith, Family and Freedom. We hold steadfast the core bedrock American beliefs  … .”

The coalition is decidedly and  supports anti abortion initiatives. According to its web page the CCIA has 4 Focus Action Committees.  These committees, or action teams, are the “spear heads” of CCIA.  The 4 committees are listed as follows:

1. Election Integrity
2. Faith Outreach
3. Education
4. Crime and Public Policy
   1. Pro-Life Initiative

The link to the Coalition of Conservatives in Action web page is here:

CCIA – Who We Are

Tanya Watkins and her husband John from Rio Rancho who are  members of the Coalition of Conservatives in Action expressed disappointment that their own Rio Rancho city government wasn’t taking up a similar ordinance and had this to say:

“We decided to come and support them. We love what they’re doing, I would like to see this ignite little fires all over the state of New Mexico. … I think that for the most part New Mexico does have conservative values and I think that our government is not representing our values.”

OTHER OUTSIDERS ATTENDING

Mark Lee Dickson, the Director or the Right to Life of East Texas, also attended the meeting and spoke during public comments before leaving to depart to Lubbock, Texas. Dickson is an the anti-abortion activist  who travels  the country helping jurisdictions with similar ordinances.  Dickson disclosed to the Albuquerque Journal he was simultaneously monitoring a city council meeting debating the issue in Illinois.  Many others from Rio Rancho, Clovis, Tijeras, Cedar Crest, Moriarty and elsewhere attended with even more participating via Zoom.

NEW MEXICO ABORTION LAWS

New Mexico abortion laws are among the most liberal in the country. In 2021, the Democratic-led New Mexico Legislature repealed the dormant 1969 statute that outlawed most abortion procedures as felonies, ensuring access to abortion after the U.S. Supreme Court last year rolled back guarantees.

Similar ordinances have been adopted by two counties and three municipalities across eastern New Mexico. But most of those ordinances have been blocked by the New Mexico Supreme Court while it considers a challenge by Democratic Attorney General Raúl Torrez who  says the ordinances violate constitutional rights to equal protection and due process and threaten the state’s status as a safe haven for women seeking abortions.

The U.S. Supreme Court last week preserved women’s access to a drug used in the most common method of abortion, rejecting lower-court restrictions while a lawsuit proceeds.

Links to quoted news source material are here:

https://wapo.st/40HxMMX

https://www.abqjournal.com/2593785/edgewood-passes-ordinance-restricting-access-to-abortion.html

https://www.koat.com/article/edgewood-new-mexico-ordinance-restricts-abortion-access/43709319

https://www.krqe.com/news/politics-government/edgewood-commissioners-ok-abortion-ordinance-in-late-night-vote/

GOVERNOR AND ATTORNEY GENERAL REACT

Governor  Michelle Lujan Grisham’s office had this to say in a statement about the enactment of the Edgewood ordinance:

“Abortion remains legal and accessible to every New Mexican. The governor recently signed into law HB 7, which prohibits local governments from enacting abortion bans. It is clear the Town of Edgewood’s ordinance will be unenforceable in light of the passage of HB 7. We will take whatever action is needed to ensure that the laws of New Mexico are upheld in every community, including those seeking to strip women of their reproductive rights.”

Attorney General Raúl Torrez’s had this to say in a statement about the enactment of the Edgewood ordinance:

“The ordinance passed … in Edgewood is yet another example of Texas based lawyers misleading local communities and enlisting them in their effort to bring about a national abortion ban. The New Mexico Constitution and state statutes prohibit local communities from regulating access to healthcare or infringing on a woman’s fundamental right to make the most personal decision regarding her body and her future. Attorney General Torrez is closely monitoring these unlawful actions and looks forward to resolving these important issues in the action currently pending in the New Mexico Supreme Court.”

The link to the quoted news source is here:

https://www.abqjournal.com/2594035/edgewoods-anti-abortion-ordinance-heres-what-people-said.html

ROE V. WADE REVERSED

New Mexico abortion laws are among the most liberal in the country.  It was on February 26, 2021, that Governor Michelle Lujan Grisham signed a bill repealing the long dormant 1969 criminal 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 was done in anticipation of the United Supreme Court reversing the land mark decision of Roe v. Wade that guaranteed a woman’s right to choose.

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  have  the  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 Grisham for her part aggressively pushed back and said abortion was a woman’s decision and must remain legal in the state.

NEW MEXICO COUNTIES AND TOWNS TRY TO INTEFERE WITH WOMEN’S REPDUCTIVE RIGHTS

New Mexico is increasingly seen as a destination for abortion patients traveling from other states, especially Texas that have banned abortion, or those imposing major restrictions.

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.

On November 4, 2022 it was reported that the City Commission of Clovis, New Mexico put off a vote on an ordinance designed to ban abortions within the New Mexico town fearing challenges to the move in a state where the procedure remains legal. Clovis was set to become the first town to pass a so-called “sanctuary city for the unborn”.

https://www.reuters.com/world/us/new-mexico-town-delays-banning-abortion-2022-11-04/

On November 8, it was reported that the Hobbs City Commission unanimously passed an ordinance designed to ban abortions, despite the procedure being legal in the state. The so-called “sanctuary city for the unborn” ordinance blocks abortion clinics from operating.  At least one nearby county has approved an anti-abortion resolution.  The ordinance will surely be challenged in court and set aside.

https://www.reuters.com/world/us/new-mexico-city-passes-ordinance-block-abortion-clinics-operating-2022-11-08/

HOUSE BILL 7

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.

House Bill 7 empowers 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  was  sponsored by State  Representatives Andrea Romero,  Linda Serrato, Charlotte Little, Kristina Ortez, Janelle Anyanonu and  House Majority Whip Reena Szczepanski.

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/

NM ATTORNEY GENERAL FILES CHALLENGE TO MUNICIPAL AND COUNTY ORDINANCES

On January 22, 2023 New Mexico Attorney General Raúl Torrez filed an emergency petition with the New Mexico Supreme Court asking the New Mexico Supreme Court for a declaratory judgement ruling to prohibit Lea and Roosevelt Counties and the cities of Hobbs and Clovis from enacting their own ordinances on woman’s reproductive care. The grounds alleged were that they violate the civil rights guaranteed by the state Constitution and infringe on the state’s authority to regulate health care. Torrez is asking the New Mexico Supreme Court strike down the ordinances, arguing they violate civil rights guaranteed by the state Constitution.

The legal challenge was filed as a direct result of the cities of Hobbs and Clovis, and the counties of Lea and Roosevelt passing local ordinances targeting abortion. According to the lawsuit filed the city and county ordinances infringe on the state’s authority to regulate health care.  Democrat Attorney General Torrez contends in the lawsuit that the city and county ordinances misinterpret the 19th-century federal law known as the Comstock Act on the mail and conflict with state law regulating the practice of medicine.  He also argues the ordinances violate the state Constitution’s guarantees to equal rights, liberty and privacy which he said are more robust than what’s outlined in the U.S. Constitution

Late last month, the New Mexico Supreme Court issued a ruling temporarily blocking the ordinances while it considers the case. It specifically asked the parties to address the impacts of House Bill 7. The city of Eunice passed its own ordinance on the same day the Attorney General filed his case against the other local governments and consequently Eunice was not named in the case filed by the Attorney General. But last week, Eunice it filed suit against Torrez and Governor Michelle Lujan Grisham, claiming that the federal Comstock Act trumps the state’s law. That lawsuit will be heard in state district court in Lea County.

In response to questions about Edgewood’s ordinance, the Attorney General’s Office said that once the state Supreme Court resolves the “outstanding legal questions” it is prepared to take formal legal action to prevent jurisdictions from adopting ordinances restricting access

2022 GENERAL ELECTION POLL ON ABORTION

On August 29, 2022, the Albuquerque Journal published the results of poll taken on the issue of abortion rights for the November 2022 general elections.  The link to read the full unedited Journal column is here:

https://www.abqjournal.com/2528326/nm-voters-divided-on-abortion-restrictions.html

The poll found thar New Mexico voters are 3 times more likely to say abortion should always be legal than they were to say it should always be illegal.  According to the poll, 35% of statewide voters surveyed said abortion should always be legal, 22% said the procedure should be legal, for a combined total of 57%.

The poll found that 25% felt there should be some limitations and said it should be illegal except in cases of rape, incest or when a mother’s life is in danger.  Just 12% of voters surveyed said abortion should always be illegal, while 4% would not say and 2% said they did not know.

According to the Journal poll results, Democrats are firmly behind a woman’s right to choose with 55% of Democrats saying abortion should always be legal and 24% of Democrats said it should be legal with some limitations for a whopping 79% combined percentage.

Republicans’ opinion are dramatically opposite with 8% saying abortion should always be legal, while 24% said it should be banned and 41% said it should be illegal with exceptions for cases of rape, incest and to save a mother’s life, with a 65% combined total to make it illegal or illegal with the exceptions of rape, incest or threat to the life of the woman.

The difference by party affiliation shrinks to a 6% difference when it comes to how voters they felt if abortions should be legal with some limitations.  Interestingly, more Democrats, 24%, felt that there should be some limitations while fewer Republicans, 18%, felt there should be some limitations.

The Journal Poll did not find a big difference in attitudes on abortion between New Mexico voters based on their gender, ethnicity and age.  There was little difference in voters’ views on abortion based on their education level with one exception, voters with graduate degrees were far more likely than other groups of voters to say abortion should always be legal.

The link to read the full unedited Journal column on the poll is here:

https://www.abqjournal.com/2528326/nm-voters-divided-on-abortion-restrictions.html

COMMENTARY AND ANALYISIS

There is no getting around it. It is pretty damn sickening when small rural community elected officials such as those in Edgewood and Eunice, rural  counties such as Lea and Roosevelt Counties and small towns such as Hobbs and Clovis allow themselves to be preyed upon and made fools of by out of state agitators and anti-abortion extremists who are only interested in the headlines and be damned the consequences to the community. What was particularly egregious is that the Edgewood commission gave more than equal time to outsiders over their own constituents.

It’s unconscionable when elected officials take it upon themselves to impose their own personal morals and extremist politcal agenda believing only their point of view counts, even when it violates state law, with no respect for a woman’s healthcare reproductive rights. If those elected officials were really concerned about what their constituents wanted, they could have just as easily put their ordinances on the ballot. But no, they decided to act irresponsibly and nefariously and be damn the final cost in litigation to the community.

The actions of these 4 communities is a clear proof that Republicans will do anything they can to oppose any efforts by Democrats to protect a woman’s right to choose and to expand woman’s health care rights in the state. New Mexico Republicans have every intent to do what they can to deprive a woman of their right to choose and to deprive a woman from making her own decision on reproductive rights.

New Mexico Attorney General Raúl Torrez needs to seek an expedited hearing on his case pending in the NM Supreme Court. In addition, Torrez should seek removal actions against the elected officials who enacted ordinances that violate New Mexico law and make an effort to hold them personally and financially responsible for their actions.

Simply put, in New Mexico, no person, no candidate, no elected official, no voter and no local government has any right telling a woman what she must do when it comes to abortion and what she must do when it comes to her own body.

On April 20, the Bernalillo County Criminal Justice Coordinating (BCJCC) met and made changes to the Public Safety Assessment Tool, better known as the Arnold Tool, that the 2nd Judicial District Court uses to determine what level of supervision a defendant should be on if they are released pending trial.  The changes were made to clear up misunderstandings about how the Arnold Tool is used in pretrial detention cases.

The BCJCC is a 12-member council created by the New Mexico Supreme Court. The BCJCC members are designated 2nd Judicial District Court and Metropolitan Court Judges, the District Attorney, the County Sheriff, a County Commissioner, a City Councilor, the APD Chief, the County Manager, the City CAO, the Public Defender, and representatives from the NM Criminal Defense Association and the Probation and Parole Department.

When a criminal defendant is arrested and in jail, a prosecutor must file a Motion to Detain the defendant in custody until trial with no bail. After a prosecutor files a Motion to Detain, the tool assigns a recommended level of monitoring for the court to consider under pretrial services should the court decide to release a defendant pending trial, including house arrest and ankle bracelet monitoring.  An evidentiary hearing is held where the prosecutor has the burden of proof to show that the defendant poses an immediate threat and risk to the public and that there are no reasonable conditions of release to protect the public.  The postscript to this article outlines the 9  factors in the Public Safety Assessment Tool of an accused defendant.

Last year the court’s reliance the Public Safety Assessment Tool came under severe scrutiny and criticism by prosecutors, law enforcement and elected officials, including the Governor and New Mexico legislators, saying violent criminals were being release pending trial and committing crimes when they should have been in jail.  Pretrial detention legislation was introduced in the 2023 legislative session, but failed, that would have mandated that a defendant simply charged with a violent crime be presumed violent and jailed until trial. The presumption of being violent mandating detention until trial is contrary to the constitutional right of due process of law and the presumption of being innocent until proven guilty.

The Arnold Tool was attacked by critics when it recommended releasing a defendant charged with a violent crime with critics arguing that its recommendation of release was mandatory and not discretionary by the courts.   The courts have now removed from the Public Safety Assessment Tool the categories of “Detention” and “Released on Own Recognizance” (ROR) which are on the opposite end of the Arnold Tool Maxtrix.

2^nd Judicial Chief Judge Marie Ward said inclusion of the two categories at the far ends of the Public Safety Assessment tool is not viewed as “best practices” but were  added as a compromise at the request of one of the stakeholders on the  BCJCC.   Judge Ward said, just like before the changes were made, a judge must  consider evidence presented by the prosecutors and the defense attorneys to determine whether someone poses and immediate danger to the public  and whether there are any conditions of release that could ensure the safety of the community. If a judge determines the person can be released, then the Public Safety Assessment gives them guidance on what level of supervision the defendant should be on.

Judge Ward described the changes as follows:

“What the Arnold Tool really tells us is, not this defendant, but a defendant in similarly situated circumstances … how likely were they to re-offend. … More evidence and argument can come in regarding this individual and other risk factors. … These modifications are only intended to clarify the misconceptions that have been out there that the assessment somehow dictates whether someone is released or not. … That’s not the case. It’s always the judge making a decision, and its always been that way.”

Although Judge Ward stressed that the changes are not a “game changer,” District Attorney Sam Bregman had this to say:

“Basically, this is a big deal. … I’m so thrilled that the judiciary has looked at this issue and understood the many concerns we expressed about how the tool was influencing the decisions that judges should be making.”

Dennica Torres, with the Law Offices of the Public Defender had this to say about the changes:

“We are always grateful when the court can better clarify procedures.”

The link to the equated news source material is here:

https://www.abqjournal.com/2592449/second-judicial-district-court-revises-revisions-to-arnold-tool-used-in-pretrial-detention-cases.html

ARNOLD RULE EXPLAINED

The “Arnold Rule  is a matrix tool used by the courts  identifying those factors that are considered in holding an accused pending trial. It is a Public Safety Assessment (PSA) tool. Several studies have shown the Arnold Tool has an impressive success rate and the state’s pretrial detention system is, in general, effective in most cases. It’s the exception and not the rule that has proven problematic for the courts when it comes to public perception.

ROLE OF THE JUDICIARY

Judges are required to make the critical decision after a person is charged with a crime about whether to release the person pending trial. That decision is made at the time of arraignment when an accused is bought before the court, the accused is informed of the charges and constitutional rights and enters a plea of not guilty or guilty. The arraignment usually includes arguments of conditions of release and bail.

“Under the American system of justice, there’s a presumption that defendants are innocent until proven guilty. It is Article II, section 13 of the New Mexico Constitution that guarantees that those accused of a crime are entitled to be released from custody while awaiting trial, except in limited circumstances. There is a failure of the pretrial system if low-risk nonviolent defendants who are entitled to be released are nevertheless detained in jail simply because they cannot afford bail.

Judges place a priority on two considerations when making pretrial release or detention decisions:

1. Whether the defendant will commit a crime, particularly a violent crime, if released, and whether the person will return to court.
2. If a defendant is to be released, judges decide whether to impose certain restrictions on the individuals, such as requiring an electronic monitor to track their location.

It runs counter to our constitution to require non-violent, low-risk offenders to spend long periods of time in jail pending trial. It is also potentially damaging to a defendant. Pretrial detention can cause defendants to lose their jobs or housing, preventing them from caring for their family or paying their bills.”

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

PUBLIC SAFETY ASSESSMENT TOOL

Public safety is a serious concern for judges, who must balance fairness with protecting our communities when making pretrial detention or release decisions.  To mitigate the risk to all New Mexico communities and defendants, members of the state’s criminal justice system and the courts implemented the Public Safety Assessment (PSA) tool.

“When money bail is a condition of release, many low-risk defendants are kept in jail because they cannot afford the bail bond. At the same time, high-risk defendants, such as repeat violent offenders who pose an elevated public safety risk, are often released if they can afford bail. 

…

Under the New Mexico Constitution, people charged with a crime have a right to bail, except in limited circumstances. The law provides for the pretrial release of a defendant under the least restrictive conditions necessary to protect community safety and assure the defendant will return to court.

The Arnold Rule Public Safety Assessment tool (PSA) provides a reliable, evidence-based information system to assist judges as they consider whether a defendant should be released to protect the public while awaiting trial. The PSA tool, using information related to a defendant’s age, criminal history, and current charge evaluates the likelihood that a defendant will commit a new crime, commit a new violent crime, or fail to appear for their court hearing if released before trial. With information from the PSA, judges can make informed decisions that are evidenced based and not speculation nor conjecture.

The criminal justice system in order to be effective must focus on protecting the public while safeguarding citizens’ rights. Objective, research-based information about the public safety risks posed by a defendant can ensure fairness in pretrial release decisions while making our justice system more effective and efficient. Local governments can save taxpayer money if judges can better identify defendants who do not need to be jailed before trial because they pose a low threat to public safety.”

Judges in the Second Judicial District Court, the Bernalillo County Metropolitan Court and in the district and magistrate courts in San Juan County in the Eleventh Judicial District can use the PSA’s objective data as part of the information they consider in pretrial release decisions made soon after a defendant is arrested and charged with a crime. Court staff prepares an assessment for each criminal defendant, which is provided to judges as well as the prosecutor and defense counsel before that defendant’s initial appearance in court known as “arraignment”.

RECOMMENDATIONS DO NOT SUPERCEDE JUDICIAL AUTHORITY OR DISCRETION

“The Arnold Rule PSA measures the likelihood that an individual will commit a new crime, particularly a violent crime, upon release, as well as the likelihood that he or she will appear at a future court hearing. The risk assessment considers nine factors related to a defendant’s age, criminal history and current charge that research has shown accurately predict risk. The tool then generates risk scores for each defendant. This information, along with other pertinent facts from a defendant’s case, is provided to judges to assist in their pretrial decision making. The PSA does not use information that is considered potentially discriminatory, such as a person’s ethnic background, income, level of education, employment status, neighborhood, or any demographic or personal information other than age.

While the Arnold Rule PSA can be a helpful informational tool, it is important to remember that judges always have the final say in every decision. The decision about whether to release or detain a defendant and under what conditions always rests with the judge. Judges have the final say on whether or not to release a charged defendant pending trial. It is not at all mandatory or required that a Judge follow the recommendation made in the PSA report and judges are 100% free to exercise their own discretion. The PSA does not replace a judge’s discretion and does not supersede other information, including any special circumstances pertinent to a case and charges against the defendant.”

THE NINE FACTORS IN PUBLIC SAFETY ASSESSMENT OF AN ACCUSED

“The PSA is designed to promote public safety and to ensure that the criminal justice system operates in a fair and efficient manner. It uses 9 factors that research has shown are the strongest predictors of whether a defendant will commit a new crime, commit a violent crime, or fail to return to court if released before trial. The factors are:

1. Whether the current offense is violent.
2. Whether the person had a pending charge at the time of the current offense.
3. Whether the person has a prior misdemeanor conviction.
4. Whether the person has a prior felony conviction.
5. Whether the person has prior convictions for violent crimes.
6. The person’s age at the time of arrest.
7. How many times the person failed to appear at a pretrial hearing in the last two years.
8. Whether the person failed to appear at a pretrial hearing more than two years ago.
9. Whether the person has previously been sentenced to incarceration.”

RISK SCORES PRODUCED

“Using the information gleaned for the 9 factors and applying them to a charged defendant, the“Arnold Rule” PSA produces two risk scores:

First, it predicts the likelihood that an individual will commit a new crime if released pending trial.

Second, it predicts the likelihood that a charged defendant will fail to return for a future court hearing.

The PSA tool also “red flags” defendants that it calculates present an elevated risk of committing a violent crime.

The PSA risk scores fall on a scale of one to six, with higher scores indicating a greater level of risk. This neutral, reliable data can help judges gauge the risk that a defendant poses.”

Links to quoted and relied upon source material are here:

https://www.nmcourts.gov/court-administration/pretrial-release-and-detention-reform/public-safety-assessment-for-pretrial-release-and-detention/

https://www.nmcourts.gov/wp-content/uploads/2020/12/Frequently-Asked-Questions-About-the-Public-Safety-Assessment-Updated-2-17-2020.pdf

ANALYSIS AND COMMENTARY

There is little doubt that, although minor in scope, the two changes to the Public Assessment Tool should go a long way in affirming that the tool is not mandatory but discretionary. It is also no substitute for a Judge to do their jobs and to use their common sense.

NOT A BROKEN CRIMINAL JUSTICE SYSTEM

The changes to Public Safety Assessment Tool should help allay the false argument and fears that have  been made that our criminal justice is broken.  The accusation that the system is broken has been made too many times by elected officials, especially those  running for office,  and many in law enforcement, including Mayor Tim Keller, APD Chief of Police Harold Medina, and District Attorneys and stake holders.

It was On September 23, 2021, Mayor Keller concluded a conference he dubbed the “Metro Crime Initiative”. Participants included APD, the DA’s Office, the Courts and many other stakeholders to address what all participants labelled the “broken criminal justice” system and calling it a “revolving door”.

The entire “Metro Crime Initiative” started with the phony premise that our criminal justice system is broken.  It’s not, but the accusation none the less seriously undermined the credibility of our criminal judicial system. The blunt truth is that our criminal justice system is only as good as the stakeholders who are responsible to make it work,  succeed and to do their jobs.

The 3 main components of the criminal justice system are law enforcement, prosecution and the courts. Examination of all 3 reflects a pathetic failure to do their jobs.

LAW ENFORCEMENT

 APD statistics for the budget years for the last 4 years contained in its annual budgets reflect that APD is not doing its job of investigating and arresting people and getting cases to the District Attorney for prosecution.

According to APD performance measures contained in its  annual budgets, APD felony arrests went down from 2019 to 2020 by 39.51%, going down from 10,945 to 6,621.  Misdemeanor arrests went down by 15% going down from 19,440 to 16,520. DWI arrests went down from 1,788 in 2019 to 1,230 in 2020, down 26%. The total number of all arrests went down from 32,173 in 2019 to 24,371 in 2020 or by 25%.

See page 231, APD Performance Measures, the approved 2022-2023 annual budget:

https://www.cabq.gov/dfa/documents/fy22-approved-budget-numbered-w-hyperlinks-final.pdf.

APD’s proposed 2023-2024  budget also reflects a serious continued  decline in performance measures of APD. The raw data is as follows:

The number of felony arrest APD made in 2021 was 6,621.

The number of felony arrests made by APD in 2022 went down to 6,122.

The number of misdemeanor arrests APD made in 2021 was 16,520.

The number of misdemeanor arrests APD made in 2022 went down to 9,799.

The number of DWI arrests APD made in 2021 was 1,230.

The number of DWI arrests APD made in 2022 went slightly up to 1,287.

APD’s clearance rate of crimes against persons (e.g., murder, rape assault) in 2021 was 56%.

APD’s clearance rate of crimes against persons (e.g., murder, rape assault) in 2022 went down to 44%.

APD’s Clearance rate of crimes against property (e.g., robbery, bribery, burglary) in 2021 was  12%.

APD’s Clearance rate of crimes against property (e.g., robbery, bribery, burglary) in 2022 went down to  9%.

APD’s Clearance rate of crimes against society (e.g., gambling, prostitution, drug violations)  in 2021was 77%.

APD’s Clearance rate of crimes against society (e.g., gambling, prostitution, drug violations)  in 2022went down to 57%

See page 154 for APD’s performance measures 2023-2024 proposed city of Albuquerque Budget:

https//www.cabq.gov/dfa/documents/fy24-proposed-web-version.pdf

The city is also continuing to experience a historical number of homicides. During each year of Mayor Tim Keller’s years in office, the city’s murder rates rose, dropped one year, and then rose to a historical high. Following is the breakdown of homicide by year:

2017: 72 homicides
2018: 69 homicides.
2019: 82 homicides
2020: 76 homicides
2021: 117 homicides
2022:  120 homicides 

https://www.abqjournal.com/1534762/homicide-numbers-high-despite-pandemic.html?amp=1

https://www.abqjournal.com/2458296/remembering-some-of-2021s-homicide-victims-in-abq-ex-total-

THE PROSECUTION

When former Bernalillo County District Attorney Raul Torrez ran for District Attorney the first time 2016, he coined his campaign slogan and said our criminal justice system was broken and he was the guy to fix it.  Torrez continued his assault on the courts when he successfully ran for Attorney General last year.

Least anyone forget, during his first term as DA, Torrez accused the District Courts of being responsible for the rise in crime and releasing violent offenders pending trial. Torrez accused defense attorneys of “gaming the system” to get cases dismissed against their clients.  A report to the Supreme Court prepared by the District Court at the time revealed it was the DA’s office dismissing more felony cases for various reasons than the courts.

Data given to the Supreme Court revealed overcharging and a failure to screen cases by the DA’s Office contributed to a combined 65% mistrial, acquittal and dismissal rate. Under Raul Torrez, the DA’s office hit the highest voluntary dismissal rate in its history, and plea agreements with low penalties became the norm. Ostensibly, newly appointed District Attorney Sam Bregman is doing his best to turn things around by attempting to hire as many as 40 prosecutors, even going as far as advertising to recruit attorneys and increasing pay.  Bregman is attempting to  fill long standing vacancies within the office that Torrez allowed to fester during his entire tenure as District Attorney.

It was very disappointing when in January during the 2023 New Mexico Legislature newly appointed Bernalillo County District Attorney Sam Bregman came out in favor of the “reputable presumption” legislation bill pushed by his predecessor and the Governor who appointed him.  Bregman told Senate Judiciary committee members:

“[New Mexico’s] pretrial system is broken … plain and simple. … I’m not blaming anybody. I’m asking for help.”

This coming from the former high-profile defense attorney Sam Bregman who for decades made a lucrative living defending defendants who were released pending trial, including one former APD police SWAT officer who was charged with killing homeless camper James Boyd.  As a criminal defense attorney, Bregman never said New Mexico’s pretrial system is broken.  He was known for taking advantage of it whenever he could as a defense attorney to help his clients stay out of jail pending their trial.

Notwithstanding, Bregman not blaming the courts for the city’s high crime rates and instead asking the legislature for help was a major relief.  It showed District Attorney Sam Bregman has a much better understanding, some would say more maturity, of the role of a prosecutor with far more respect for the courts than his predecessor. Bregman knows and understands the limitations the Code of Professional Conduct and the Code of Judicial Conduct places upon prosecutors, defense attorneys and judges, something his predecessor never grasped.

THE COURTS

A negative perception of the courts is created when judges release violent felons and not holding them for trial without bond and simply not using their common sense. It’s common knowledge that Judges are concerned about their disqualification rates, appeals and reversals and how they are perceived by the Judicial Performance Evaluation Commission. Judges are reluctant to make decisions and hold off on making the hard decisions to avoid controversy to protect their jobs and appellate rates.

FINAL COMMENT

The criminal justice system in this country and this state has never been perfect, nor will it ever be, but it is not broken. The criminal justice system does have its flaws and a number of inequities, but to say that it is a broken system is just plain ignorance or political opportunism at its worst.  Now that we have a new Bernalillo County District Attorney and changes to the Public Safety Assessment Tool,  perhaps attitudes and public perception of the courts will change,  but that will be dependent on the stake holders doing their jobs without blaming each other.

On March 24, District 2 Democrat Albuquerque City Councilor Isaac Benton announced that he will not seek a 5^th term this year to the Albuquerque City Council. City Council District 2  is the Downtown, Old Town and part of the North Valley area of the city.  Benton  is the third sitting councilor who will not be seeking another term at the end of the year.

On November 14, it was reported that Democrat  Pat Davis (Nob Hill/International District) and Republican Trudy Jones (Northeast Heights) will not be seeking another term. Incumbent Republican City Councilor Brook Basaan has yet to announce that she is seeking a second term but is expected to run. Bassan  is expected to have opposition.

The 4 even numbered city council districts will be on the November 7,  2023 municipal  election ballot  and the remaining 5 odd number city council seats  are not up until 2025.

Links to quoted news sources material are here:

https://www.abqjournal.com/2585013/albuquerque-city-councilor-says-this-year-is-his-last.html

https://www.abqjournal.com/2549631/two-city-councilors-say-they-wont-seek-reelection.html

REVIEWING THEIR RECORDS

Now that City Councilors Isaac Benton, Pat Davis and Trudy Jones have made it official that they are not seeking another term on the city council, review of their records is in order.

ISSAC BENTON CITY COUNCIL RECORD

Councilor Benton, age 71, was first elected in 2005 to represent the former District 3 City Council District that existed before redistricting occurred 10 years ago. Benton has resided in the Downtown area for 48 years.  Benton is presently the councilor for what is now District 2 which  includes Downtown, Old Town and part of the North Valley and now  encompasses some neighborhoods just west of the Rio Grande between Central and Interstate 40 as a result of the 2022 redistricting.

Benton is a progressive Democrat and a retired architect.  In his 18 years on the city council, he has focused on issues like sustainability and affordable housing.  He was a major proponent  of the controversial ART Bus project down Central which was  Republican Mayor Richard Berry’s $120 million legacy project.  He successfully proposed tripling the city’s commitment to energy conservation and renewable energy projects by designating 3% of the city’s biennial infrastructure bond programs for such uses.  He also co-sponsored legislation that created the city’s Workforce Housing Trust Fund, which has helped fund about 1,000 affordable housing units since 2007.  Benton also sponsored various redevelopment projects in his district, including the city’s purchase of the historic Rail Yards and reimagining of the El Vado Motel on Central Avenue the city bought.

Throughout his 18 years on the City Council, Benton has been interested in zoning issues and has tried to combat what he calls “suburban sprawl.”  Keeping in line with that interest, Councilor Benton is currently co-sponsoring, along with Republican Trudy Jones,  major zoning changes to the Integrated Development Ordinace (IDO).   Mayor Tim Keller  is pushing the zoning changes  as part of his  Housing Forward Plan a to boost Albuquerque’s housing stock by “infill” development in all residential zoned areas of the city. The legislation would make it easier to turn commercial properties into residential units, would allow more density in single-family home neighborhoods via duplexes and secondary 750 foot dwelling units known as “casitas.” Benton said he wants  to see the zoning changes allowing duplexes and casitas through before he leaves office.

REPUBLCAN TRUDY JONES

Republican Trudy Jones, now 73, was first elected to the City Council in October 2007 to represent District 8, Albuquerque’s Far Northeast Heights and Foothills.  She has been elected 4 times to the council and will complete 16 years of service in 2023. She is a retired real estate agent and said she was drawn in 2007 to the public service element of the council. She said her focus since becoming a city councilor has been improving public facilities in her district and said she is especially proud of the investments in parks and roads.

As a city councilor and as a realtor, it was not at all surprising that  her primary  interest was in land-use planning and zoning matters.  She was the co-sponsor of  the city’s Integrated Development Ordinance, which in 2017 replaced the city’s old zoning code,  and chairing the city’s Land Use, Planning & Zoning committee for the past three years. She was a staunch supporter of the disastrous ART Bus project down the center of Central.   This past year she voted to support “Safe Outdoor Spaces” which are government sanctioned tent encampments for the homeless and “motel conversions” which will allow the city to purchase motels to be converted to long-term low-income housing. Jones said she wants to shepherd various infrastructure projects to the finish line before leaving office.

 DEMOCRAT PAT DAVIS

Democrat Pat Davis, now 45, was first elected to the City Council in 2015 to represent represents District 6 succeeding City Councilor Rey Garduno. District 6 encompasses the International District, Mesa Del Sol, Nob Hill, Southeast Heights, and the University of New Mexico.  In  2019  Davis was elected to serve a second  term.

Davis is a former Washington D.C. police officer.  He came to New Mexico soon after being involved with a police officer shooting where he shot an African American man twice in the shoulder who was fleeing from Davis at a “traffic stop”.  Davis was sued in Washington, DC over the shooting and he relocated to Albuquerque and  became a UNM Campus Police officer.

When Davis relocated  to New Mexico he  became a “progressive Democrat” saying his Republican conservative philosophy had changed, especially with respect to law enforcement, and saying he had done a few things as a police officer he was not “proud of”.  In 2016, the then first term city councilor Pat Davis ran for the United States Congress to replace then Congresswoman Michelle Lujan Grisham who decided to run for Governor. Davis withdrew from the congressional race when he polled at 3%.

Davis is considered the leading progressives on the city council and worked on the city’s early solar energy initiatives and co-sponsored legislation that strengthened the city’s immigrant-friendly status, and another bill that decriminalized possession of small amounts of marijuana years before the state legalized recreational cannabis. Once elected to the city council, Davis became a staunch supporter of the disastrous ART Bus Project, Republican Mayor Berry’s $120 million legacy project, refused to place it on the ballot and voted repeatedly to fund the project that ultimately destroyed the character of Route 66.

BENTON, DAVIS AND JONES FAILED AT APD POLICE OVERSIGHT

The Albuquerque City Council plays a crucial oversight role of the Albuquerque Police Department (APD) including controlling its budget. Democrat City Councilors  Isaac Benton and Pat Davis and Republican Trudy Jones  did nothing when it comes to Albuquerque Police Department (APD) reforms mandated by the Court Approved Settlement Agreement (CASA) after the Department of Justice found a “culture of aggression” and “excessive use of deadly force by APD.” All 3 never challenged the Mayor Berry Administration nor the Mayor Keller Administration or the APD command staff in any meaningful way demanding compliance with the Department of Justice (DOJ) consent decree reforms.

Each time the Federal Court appointed Monitor presented his critical reports of APD to the City Council, Benton, Davis and  Jones  remained silent.  All 3 declined to demand accountability from  Mayors Berry and Keller and hold the APD command staff responsible for dragging their feet on the reforms.  All 3  never attended a single one of the federal court hearings on the Court Approved Settlement Agreement (CASA) and the 16 Federal monitors report hearings.

MOST EGREGEOUS VOTES

The most egregious votes by Democrats  City Councilor  Isaac Benton and Pat Davis and Republican Trudy Jones  was that they voted for the final adoption of the ABC-Z Comprehensive Plan in 2017, now called the Integrated Development Ordinance (IDO) which is now having  long term impact on our neighborhoods and favors developers. The so called progressive Democrats Benton and Davis turned their backs on their own constituents and historical areas of the city by giving developers free rein to do what they wanted to do in those areas of the city. Benton in particular pushed backed at all objections made to him by his own progressive constituents on allowing casitas and encouraging high density development.

It was in 2015 that former Mayor Richard Berry during his second term started the rewrite process of the city’s comprehensive zoning code and comprehensive plan to rewrite the city’s entire zoning code. It was initially referred to as the  ABC-Z comprehensive plan and later renamed the Integrated Development Ordinance (ID0) once it was passed.  In 2015, there were sixty (60) sector development plans which governed new development in specific neighborhoods. Forty (40) of the development plans had their own “distinct zoning guidelines” that were designed to protect many historical areas of the city. Simply put, the IDO is and has always been an abomination that favors developers and the city’s construction and development industry.

The 2017 zoning rewrite was a rush job. It took a mere 2 years to rewrite the entire zoning code and it emerged as the Integrated Development Ordinance. The ABC-Z project rewrite was nothing more than making “gentrification” an official city policy and the “gutting” of long-standing sector development plans by the development community to repeal those sector development plans designed to protect neighborhoods and their character.

Another egregious vote by Benton, Davis and Jones that also  involved the Integrated Development Ordinance happened last August when all 3 voted for allow 2 Safe Outdoor Spaces in each of the 9 City Council Districts.  A “Safe Outdoor Space” is a city sanction lot, or a portion of a lot, developed to provide designated spaces for occupancy by tents, recreational vehicles, and/or light vehicles for the homeless. The Integrated Development Ordinance (IDO) now allows Safe Outdoor Space tent  camps of up to 40 spots for tents and a total of 50 residents. Neighborhood associations and private property owners strongly protested such government sponsored tent encampments as being a viable solution to the city’s homeless crisis. The city provides upwards of $60 million a year for shelter and services to the homeless and 24/7 city sanctioned homeless tent encampments are contrary to the city’s housing first program.

CITIZEN’S SALARY COMMISSION RECOMMENDS INCREASING CITY COUNCIL AND MAYOR’S SALARIES BY 87%

On March 24, it was reported that the  Citizens Independent Salary Commission responsible for making recommendations for compensating city elected officials  voted to recommend increasing the  pay of city councilors by 87%.  If approved, city councilor pay would go from the present $33,600 to $62,843 a year.  The City Council president would get an equivalent increase going from $35,860 to $66,928 a year. The commission also voted to increase the mayor’s salary going from $132,500 to $146,081 a year.

The committee’s decision making process included a series of surveys and questioning Mayor Tim Keller and all 9 current city councilors and the public. The questionnaire sought to gauge workload, expectations and if the current salary reflected the job responsibilities and whether it might present an economic barrier for people who want to run for office.

The commission reported it wanted to ensure “fair and reasonable” pay for the city’s elected officials that accounts for their time and effort and comparing them  to peer cities.  The salary  analysis included reviews of El Paso, Texas, Oklahoma City, Oklahoma and Tucson, Arizona.

Mayor Keller in his survey said he worked an average of 70 hours per week. He described the mayor’s job as “appropriately compensated,” but noted that it pays less  than dozens of other positions in Albuquerque municipal government. The positions in city government Keller is referring to are unclassified at will positions such as Department Directors that Keller appoints and pays between $160,000 and $200,000 a year.   Most Albuquerque department directors make $157,518 annually, and other administrator salaries top $170,000 with the City Chief Administrative Officer paid $200,000. Those positions are at will positions and their pay is negotiated at the time of hire with the Mayor.

Not all councilors responded to the survey. The 6 who did respond reported that at least 28 hours a week are needed to “adequately” fulfill their responsibilities but that their position needs full-time attention.

The public was fairly split on what elected officials should be paid. Among 182 survey respondents, 37% answered that the City Council salary should remain $33,660, but 36% thought councilors should make less and 26% said they should earn more. Wirh regards  to the mayor, 48% said the position should earn less, 34% thought it was good as it is now, and 18% felt the job deserved a higher salary.

The commission wanted to establish salaries “likely to attract competent and effective candidates to serve in public office and that enhances the opportunity for every eligible citizen to serve, regardless of their financial circumstance. …  why would someone be Mayor if they could be CAO (chief administrative officer), which pays almost double

One opinion expressed  was that the Albuquerque’s current councilor salary might prevent people from running for a seat, since the position is often too demanding to hold another job but does not pay enough to survive on.

Salary Commission Chair Kent Hickman said this when announcing the recommendations:

“The Commission considered a variety of data, including historical compensation received by the Mayor and City Councilors, comparative pay and forms of government among similar cities, the managerial complexity of elected officials’ labor, as well as changes in the cost of living and median household income.”

The Citizens Independent Salary Commission voted on the salary changes during an early March meeting. The new pay scale if approved by the City Council would take effect only after the 2023 and 2025 municipal elections meaning in 2024 for the candidates who win the council District 2, 4, 6, and 8 elections this fall and in 2026 for those who prevail in the 2025 election for Mayor and the other five council seats.

The link to the quoted news source is here:

https://www.abqjournal.com/2585042/citizencommissionwantsbigraiseforalbuquerquecitycouncilors.html

COMMENTARY AND ANALYSIS

 After the 2021 municipal election, the city council went from a 6 -3 Democrat Majority with the loss of Democrat Cynthia Borrego to Republican Dan Lewis  and it  became a 5-4 Democrat majority, but the ideology split is  5 conservatives to 3 progressives and one moderate. The breakdown by name is as follows:

Democrats

District 1 Conservative Democrat Louie Sanchez
District 2 Progressive Democrat Isaac Benton
District 3 Moderate Democrat Klarissa Peña
District 6 Progressive Democrat Pat Davis
District 7 Progressive Democrat Tammy Fiebelkorn

Republicans

District 5 Conservative Republican Dan Lewis
District 4 Conservative Republican Brook Bassan
District 8 Conservative Republican Trudy Jones
District 9 Conservative Republican Renee Grout

Although the City Council is currently split with 5 Democrats and 4 Republicans, Conservative Democrat Louie Sanchez has often allied himself with Republicans Dan Lewis, Renee Grout, Trudy Jones and Brook Bassan allowing them to approve or kill measures on a 5-4 vote but being unable to override Mayor Tim Keller’ veto’s with the required 6 votes. Republican Brook Bassan is expected to run for a second term and she is expected to have conservative Republican opposition. With progressives Pat Davis and Isaac Benton’s departures at the end of the year, the balance of power could shift further to the right if their replacements are more moderate to conservative giving Keller more headaches in passing his progressive agenda.

_________________________________

POSCRIPT

CALLING ON ALL CANIDATES

The regular 2023 municipal election to elect city councilors for City Council Districts 2, 4, 6, and 8 will be held on November 7, 2023. The City Clerk has already posted  on its city  web page the election calendar and information for all candidates. The 2023 Regular Local Election Calendar for candidates begins on April 30 with an “exploratory period” to allow candidates to organize and collect “seed money” donations  and  ends on June 4. The petition and qualifying contribution period begins on June 5  and ends on July 10, 2023.

https://www.cabq.gov/vote/candidate-information/candidate-calendar-for-the-2023-regular-local-election

ELIGIBILITY: In order to become a candidate, a person must be registered to vote in, and physically reside in, the district they seek to represent by August 9, 2023. Any changes to voter registration must be effective on August 9, 2023. How a name appears on ballots cannot be changed at the time of candidate filing.

NOMINATING PETTIONS: A candidate for City Council must collect 500 signatures from registered voters within the district the candidate wishes to represent. The City Clerk’s Office encourages candidates to collect more petitions signatures than required. Though signatures collected on the website will be validated as registered voters, signatures collected on paper forms will need to be verified as registered voters in the candidate’s district by the City Clerk’s Office once you submit them. Because individuals don’t always know their registration status, it’s possible that a number of the signatures you collect may not count towards the total required. A Council Candidate may collect petition signatures from 8:00am on June 5 through 5:00pm on July 10.

Candidates for City Council can be either publicly financed or privately financed.

PUBLIC FINANCING: Candidates can qualify city public financing by securing $5 qualifying donations from registered who live in the district. The public finance candidate must agree to a cap and agree that is all they can spend. Candidates are required to collect qualifying contributions from 1% of the registered voters in the district they wish to represent. The number changes based on the district a candidate is running in. City public financing can be between $40,000 to $50,000 depending on the 1% of registered voters in the District. City Council candidates may collect qualifying contributions from 8:00am on June 5 through 5:00pm on July 10.

PRIVATE FINANCING: There is no cap on what a privately finance candidate can spend on their campaigns.  A privately financed candidate may give themselves  an unlimited amount of money to spend on their campaigns. However, another individual may only donate up to a certain amount. For a City Council candidate, an individual may only donate up to $1,683.00.

MEASURE FINANCE COMMITTEE: A Measure Finance Committee is a political committee, person or group that supports or opposes a candidate or ballot measure within the City of Albuquerque.  Measure Finance Committees must register with the City Clerk, regardless of the group’s registration as a PAC with another governmental entity. Measure Finance Committees must also file financial statements at the same times that candidates report. Measure Finance Committees are not bound by the individual contribution limits and business bans like candidates. However, a Measure Finance Committee that supports or opposes a measure and receives aggregate contributions in excess of 30% of the Mayor’s salary from one individual or entity, must incorporate the donor’s name into the name of the committee. For 2023 Measure Finance Committees, that threshold number is: $39,750.00.

The links to the city clerk’s web pages are here:

https://www.cabq.gov/vote/candidate-information

https://www.cabq.gov/vote/candidate-information/faqs

On April 20, it was reported that 7 of Governor Mitchell Lujan Grisham’s  top appointees were given pay raises averaging 22% that coincided with her 2022 election to a second term.  They all are “at will” employees, can be terminated at any time without cause by the Governor and serve at the pleasure of the Governor.

The total yearly amount of the raises for the 7  is upwards of $162,000 a year.  Each raise exceeded 17% and one reached 31%. One raise added $37,850 to an individual’s salary while another added $41,100.  The 7 now make between $150,000 and  $170,000 a year.

The 6 individuals, their titles and the amounts of the raises are as follows:

Holly Agajanian,  Governor’s General Counsel: $135,908 to $150,000, a $14,091 (10%) pay raise. 

Diego Arecon, Deputy Chief of Staff: $146,782 to $175,000 a $38,218 (19%)  pay raise. Ricon retired from the Albuquerque Fire Department as a “pipeman” over 5 years ago and for a number of years was the president of the Firefighters union. It is common knowledge that Rincon over many years has had a strong working relationship with the Governor and that he has been within her “inner circle” giving advice and support to her during her years as a Bernalillo County Commissioner and as a United States Congresswoman. Before becoming a Bernalillo  County Commissioner, the Governor worked for the Arecon as a lobbyist for the Firefighters union.

Daniel Schlegel, Chief of Staff: $112,476 to $185,000 a  $72,524 (64%) pay raise. EDITOR’S NOTE: Schlegel was Director Of Strategic Plan & Initiative.  It was on January 5, 2023 that Schlegal was promoted to the position of Chief of Staff replacing Interim Chief of Staff Courtney Kerster.  Schlegel has been with the Governor since day one when she  was sworn in for her first term.  He has steadily risen through the ranks within the Governor’s office cultivating good relations with legislators.

https://www.governor.state.nm.us/2023/01/05/governors-office-announces-new-chief-of-staff/#:~:text=SANTA%20FE%20%E2%80%93%20The%20Office%20of,and%20director%20of%20federal%20affairs.

Caroline Buerkle,  Director of Cabinet Affairs: $146,781 to $175,000,  a $28,218 (19%) pay raise. Editors Note: Buerkle is known to be a close personal friend and is a long time ally of the Governor, she has established strong  working relationships with the Governor’s cabinet and frequently travels with her.

Teresa Casados, Chief Operating Officer: $158,758 to $185,000,  a $26,241 (16%) pay raise. 

Courtney Kerster, Senior Advisor:  $133,900 $175,000, a $41,100 (30%) pay raise. EDITOR’S NOTE:   This  was the largest increase among the 5.  Kerster served temporarily as the Governor’s  Chief of Staff before returning to her job in January as a Senior Adviser to the Governor and Director of Federal Affairs.

Mariana Padilla, Cabinet Director:  $133,900 to  $171,750,  a $37,850 (28%) pay raise.  

 RANK AND FILE PAY RAISES

The 2022 approve New Mexico State  budget and  authorized by lawmakers last year had funding for raises averaging about 7%. It included a 3% across-the-board increase in April last year and an average of 4% starting three months later, in July.

The 2023 New Mexico legislature enacted a $9.6 billion budget that will commence on July 1 and it contains funding for 6% raise for state employees and educators.

REACTION TO PAY RAISES

Lujan Grisham spokeswoman Maddy Hayden said the raises are justified and reflect the long hours and holidays worked by the governor’s staff. Hayden said this:

“These increases came at the end of the governor’s first four years in office.  Merit-based raises are standard practice across virtually every workplace, and the governor recognizes the extremely hard work employees in her office do every day, which routinely includes work on holidays, late into the evening and over weekends, to serve the people of New Mexico.”

House Minority Leader Ryan Lane, R-Aztec questioned the  the size and timing of the pay In doing so, Lane  noted the governor vetoed legislation for a second time in two years  that would have sharply boosted judicial salaries. Lane said this:

“[The salary increase] are as much as hard-working New Mexicans make in a single year, and that should cause some concern. … It’s also puzzling to me that the governor would veto salary increases for our judicial branch but also give large pay increases to select members of her staff.”

The governor’s staff pay increases did not show up on the state payroll  at the same time for every employee as reflected by the states Sunshine Portal which publishes government pay once a month. The seven did have pay raises last summer when state employees more broadly received an average 4% raise.  Casados and Arencón saw a pay raise of  4% in the August payroll data.  None of the other five political appointees saw their job title change.

The link to the quoted news sources are here:

https://ssp3.sunshineportalnm.com/#employees

https://www.abqjournal.com/2592157/top-staffers-under-governor-draw-big-pay-increases-see-whose-pay-increased-and-by-how-much.html

NOT THE FIRST TIME

This is not the first time the Governor has given large raises to members of her executive staff where the raises  have been called into question and seriously criticized.

On February 4, 2021, it was reported that Governor Michell Lujan Grisham had  given $7,400 to $18,000 pay increases to her personal staff while at the same time she and legislators were taking back a 4% raises promised to teachers, state employees and essential workers. The Governor also issued a hiring freeze for state government as a cost saving measure.

In 2021, 8 of Governor Michelle Lujan Grisham’s executive staff received salary increases totaling $92,000 over the previous year. The raises took effect in April, 2020, before the special session to deal with the budget shortfall. The increases range from 8% to 21%. All 8 of the executive staff were again exempt, at will  employees who serve at the pleasure of the Governor. The new salary pay  ranges then were from $101,088 to $146,000.

Five  of the eight were given 8% salary increases while the other 3 were given 21%, 15%, and 10% respectively. Following is  a listing of the 8  salary increases given in 2021:

Tripp Stelnicki, Director of Communications, went from a salary of $88,399 paid in January 2020 to a salary of $107,000 in January, 2021, or 21% salary increase. Stelnicki is no longer with the Governor and had been replaced by Maddy Hayden as the Governors Spokes person and Director of Communications.

Melisa Salazar, Director of Boards and Commissions, went from a salary of $78,000 in January 2020 to a salary of $90,000 in January, 2021 or a 15% salary increase.

Matthew Garcia, Chief of Staff, went from a salary of $133,120 in January 2020 to a salary of $146, 016 in January, 2021 or a 10% salary increase. Note that newly appointed Chief of Staff Daniel Schlegel is paid $185,000 a year.

Teresa Cosados, Chief Operating Officer, went from a salary of $135,200 in January 2020 to a salary of $146,016 in January, 2021 or an 8% salary increase. Note that Teresa Casados is now paid $185,000 a year.

Dominic Cabello, Cabinet Director, went from a salary of $133,120 in January 2020 to a salary of $143,770 in January, 2021 or an 8% salary increase. Cabello is no longer with the Governor and is a politcal consultant in the private sector managing campaigns.

Diego Arencon, Deputy Chief of Staff, went from a salary of $125,001 in January 2020 to a salary of $135,001 in January, 2021 or an 8% salary increase. Note that Arecon is now being paid $185,000 a year.

Carolyn Buerkle, Deputy Chief Operations Officer, went from a salary of $125,001 in January 2020 to a salary of $135,001 in January, 2021 or an 8% salary increase. Note that Buerkle is now being paid $175,000 a year.

Victor Reyes, Director of Legislative Affairs, went from a salary of $93,600 in January 2020 to a salary of $101,088 in January, 2021 or an 8% salary increase. Reyes is no longer with the Governor having resign in 2021 to run for congress.

The link to a related blog article is here:

https://www.petedinelli.com/2021/02/04/the-greedy-8-in-governors-office-pay-raises-of-8-to-21-given-to-governors-political-operatives-while-state-workers-get-1-pay-increases/

COMMENTARY AND ANALYSIS

There is no getting around it. No matter what anyone says about how hard working those who got the raises are working, it’s very difficult to justify 20% pay raises let alone 64% pay raises. It’s called “grab the money and run” syndrome.

The job duties have likely changed very little over 5 years.  Handing out such astronomical pay increases to political operatives is one sure way to lose credibility with the public and all other state employees and legislator’s, but its done all the time.

The Governor’s political operatives need to seriously ask themselves is it really worth it?  Public service was never meant to be lucrative and they knew what they were getting into when they went to work for this Governor. Because of sure greed, its likely all 7 of those who got the recent raises think they are worth every penny of it and deserve it ignoring lost credibility and the public’s hostile reaction.

They also know their time is limited, they need to get what they can now, because come January 1, 2025, if not sooner, when a new Governor is sworn in,  they will likely be looking for employment.

The April 20 front page headlines of the Albuquerque Journal blared out:

“Members of New Mexico Civil Guard get $300K from city in settlement”

“ABQ settles lawsuits with NM Civil Guard filed in wake of 2020 Tigue Park Protest”

Below the headlines was a photo of two armed members of the New Mexico Civil Guard on their knees, one with his hands tied behind his back and the other with is hands and arms up over his head as two heavily armed APD Officers, likely SWAT,  dressed in tactical gear were holding tactical weapons on the two men.  The headlines and the photo were truly astonishing taken together. It turns out the headlines and the photo were very misleading as to civil rights violations, but nonetheless the story was very damaging to the city for what the $300,000 was paid for: violations of the New Mexico Inspection of Public Records Act!

The link to the quoted Journal article is here:

https://www.abqjournal.com/2591948/new-mexico-civil-guard-gets-300k-from-albuquerque.html

LITIGATION FILED

Six members of New Mexico Civil Guard, a private militia group, claimed their constitutional rights were violated when they were arrested after a protest turned violent at Tiguex Park in June 2020.  The event that triggered the litigation was when members of New Mexico Civil Guard  wearing camouflage suits and body armor brought sidearms and rifles to “keep the peace” at the June 15, 2020, protest at which organizers called for removal of the statue of Spanish conquistador Juan de Oñate. The members were not charged criminally but were detained for hours as Albuquerque police investigated a non-fatal shooting that occurred during a scuffle between protesters and people who opposed damaging the statue. A man not affiliated with the militia, Steven Ray Baca,was arrested on aggravated assault charges in the non-fatal shooting. He is set for a jury trial June 20.

Three separate federal civil rights lawsuits were filed by Devon Bay, John Burks, Daniel Espinosa, Craig Fitzgerald, Joel Mason and David Rice. They were represented by former New Mexico Supreme Court Justice Paul Kennedy.  According to the Journal story, their federal civil rights lawsuit maintained that after the shooting, militia members were arrested and forcibly detained in handcuffs for hours without probable cause. Police were accused of using excessive force and causing serious injuries to the militia members while they were detained.  The lawsuit alleged that prior to the June 2020 protests, officials in the Albuquerque Police Department including then Deputy Chief of Field Services Harold Medina, Mayor Tim Keller and his then Chief Administrative Officer Sarita Nair targeted the militia members for arrest.

FEDERAL COURT RULES NO VIOLATION OF CIVIL RIGHTS

The federal lawsuits were assigned to United States District Judge Kea Riggs of Albuquerque. Last November, Judge Riggs ruled and found that the arrest of the 6 militia members did not violate their civil rights and that excessive force was not used by APD.  U.S. District Judge Kea Riggs wrote in part:

“Mr. Baca fired multiple shots, creating an unsafe situation for both officers and bystanders. …  Because the plaintiffs were armed, the circumstances warranted officers to zip tie or handcuff the plaintiffs and secure their weapons.”

Judge Kea Riggs ruled against the militia members on all but one claim of municipal liability, which was still outstanding at the time of settlement. She also found no proof that Mayor Tim  Keller, CAO  Sarita Nair nor Deputy Chief  Harold Medina were involved in the decision to arrest or take the militia members into custody or created a policy to cause them “constitutional harm.”

https://www.abqjournal.com/2591948/new-mexico-civil-guard-gets-300k-from-albuquerque.html

INJUNCTION SECURED AGAINST NEW MEXICO CIVIL GUARD

After the Tiguex Park protest, then 2nd Judicial District Attorney Raúl Torrez, who was elected Attorney General in November, filed a lawsuit alleging the presence of the heavily armed group helped incite the non-fatal shooting at the protest and violated New Mexico law. Torrez succeeded in obtaining an injunction barring the New Mexico Civil Guard from organizing or operating in public as part of a military unit that isn’t activated by the governor of New Mexico, and from assuming law enforcement functions by projecting the ability to use organized force at protests and public gatherings.

NEW MEXICO INSPECTION OF PUBLIC RECORDS ACT

Under the New Mexico Inspection of Public Records Act, “every person has a right to inspect public records”.  A requester of public records can seek damages and attorney’s fees if the responsive documents aren’t produced by a governmental agency in compliance with state law. Under the IPRA records maintained by the government, including phone records and police offense reports are a matter of public record and can be reviewed.

The Inspection of Public Records Act provides in part:

A custodian receiving a written inspection of public records request shall permit the inspection immediately or as soon as is practicable under the circumstances, but not later than 15 days after receiving a written request. If the inspection is not permitted within 3 business days, the custodian shall explain in writing when the records will be available for inspection or when the public body will respond to the request.

The Inspection of Public Records Act also provides for the award of damages for failure to provide inspection of documents:

“A custodian who does not deliver or mail a written explanation of denial within fifteen days after receipt of a written request for inspection is subject to an action to enforce the provisions of the Inspection of Public Records Act and the requester may be awarded damages. Damages shall:

(1) be awarded if the failure to provide a timely explanation of denial is determined to be unreasonable;

(2) not exceed one hundred dollars ($100) per day;

(3) accrue from the day the public body is in noncompliance until a written denial is issued; and

(4) be payable from the funds of the public body”

There are 7 broad exemptions under the IPRA, including one governing law enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime, and one dealing tactical response plans or procedures, but those exemptions can be overcome by redacting the sensitive information.

A link to the Attorney General IPRA compliance guide is here:

Click to access Inspection-of-Public-Records-Compliance-Guide-2015.pdf

INSPECTION OF PUBLIC RECORDS ACT REQUESTS

While the 3 federal lawsuits were pending and before the federal courts rulings that there were no violations of civil rights, the Plaintiff members of the New Mexico Civil Guard filed Inspection of Public Records Act  (IPRA) requests  seeking release of records of all “non-personal calls”, including text messages, on Mayor Tim Keller’s personal cellphone for the month of June 2020.   The city in turn hired a private law firm to represent Keller and to fight the release of the cell phone records maintaining that disclosure of “personal communication records” was “outside any possible relevance” to the IPRA request.

In their first IPRA case, militia members sought records relating to APD’s preparation for and response to the demonstration. As quoted, under IPRA,  records are required to be produced in 15 days, unless a specific exemption applies.  Four months passed before the City Clerk’s office produced 2 redacted documents.  One was  a heavily redacted “Operation Plan” and one was an “Event Action Plan.” The city claimed the redactions in the “Operation Plan” were proper to protect the identities of undercover officers.

To settle the IPRA request litigation, State District Judge Joshua Allison last fall reviewed a copy of the redacted “Operation Plan” provided to him by the city and found it contained “substantially fewer redactions” than the redacted version provided to the militia members who filed suit.  The city subsequently withdrew its exemption claim and provided the plan with only one redaction Judge Allison found appropriate.

The second IPRA lawsuit claimed the city violated the law in failing to adequately respond to a request for cellphone records of Keller, Nair and then-Deputy Chief Medina. City Clerk Ethan Watson contended the COVID-19 pandemic impacted the ability of his office to efficiently handle IPRA requests.

CITY SETTLES 

The city agreed to settle for $300,000 the federal civil rights lawsuit filed by the New Mexico Civil Guard as well as two other lawsuits alleging the city failed to turn over public records about the incident in violation of the state Inspection of Public Records Act.

City Attorney Lauren Keefe said in a statement on the city decided to settle all three lawsuits to avoid the risk of incurring any further expense, including the costs of a likely appeal. Keefe said this:

“The settlement amount is largely reflective of the City’s potential liability related to the public records requests.”

The city also revealed it paid $17,000 to hire Santa Fe lawyer Kate Ferlic to represent Mayor Keller after the militia group members made multiple requests for his personal cellphone records.

BIG BUCKS FOR NOT RELEASING PUBLIC DOCUMENTS

With the $300,000 now reported paid to the New Mexico Civil Guard for IPRA violations, the city has now paid out $630,000 over the last two years for IPRA violations and not releasing documents in a timely manner. It turns out cities, small towns and school districts across  the state are paying out hundreds of thousands of dollars of taxpayer  money because a court says they aren’t following the law. Other large payouts over the past few years include Albuquerque Public Schools which had to pay out $600,000 and the city of Jal paid $400,000.

On April 13, KOAT TV Targe 7 reported in part as follows:

“Government agencies across the state are being sued, accused of not following the state’s Inspection of Public Records Act. By law, with some exceptions, it means that government has to turn over most documents to anyone who asks for it. If they don’t, and a judge decides they violated the law, the government has to pay out $100 for every day they did not release the record. The City of Albuquerque has paid out more than $330,000 in past two years[for IPRA violations].

Shannon Kunkel, executive director of the New Mexico Foundation for Open Government said this:

“It’s pretty unbelievable. I mean, these are taxpayer dollars,” said “The public is entitled to these records and we’re squandering away money fighting lawsuits that aren’t going to be won. … It is the state statute that guarantees that the public has access to government records and records could be things like emails, text messages, video photographs.”

“(IPRA) is my favorite four-letter word,” said attorney Tom Grover, who has sued the city of Albuquerque seven times for not following IPRA. “Transparency comes hand-in-hand with legitimacy. And that’s what IPRA was all about.”

Grover’s clients — mostly APD officers suing the department — have won more than $266,000.

About a year ago, the city of Albuquerque paid out one of Grover’s clients, former officer Jeremy Dear, $85,000. He was the officer who shot and killed 19-year-old Mary Hawkes. The city said he was fired because he did not repeatedly turn on his lapel camera. He wanted copies of memos and emails about an investigation into his work.

Grover said this:

“What happens is the city fails to provide the documents, and by and large, these are these are garden variety documents.  These aren’t anything, you know, discreet or sublime or regular course of business documents.”

Other people who have sued over allegations of violating the state open records law–include the media. An Albuquerque parent won $40,000 dollars because APS wouldn’t turn over enrollment numbers during the pandemic.

Another man, who was arrested at a protest after he showed up with a rifle, won $20,000 because the city wouldn’t turn over police reports. The District Attorney’s Office dropped charges against him.

Paul Gessing of the taxpayer watch group Rio Grande foundation sued to try to get emails about how mayor Tim Keller was using the city website to push people to vote for a controversial Democracy Dollars.

That program would have given every Albuquerque voter a $25 coupon to spend to support a politician running for office.

By the time Gessing won the IPRA suit election was over. Democracy dollars failed. Gessing said this:

“So, we figure we got this payout and it was to the benefit of my organization and the attorneys. … I wish we could have done more to actually influence future policy decisions by this and other administrations.”

Albuquerque City Clerk Ethan Watson is responsible for making sure documents releasable by law are released. It was just two years ago – when the New Mexico Foundation for Open Government gave him their highest honor as being one of the most transparent in government.

When KOAT asked for an interview, Watson sent us this statement saying:

“The City received over 22,474 requests for public records between January 1, 2020 and today. This is likely more than any other public body in New Mexico. The volume of requests has been increasing annually at a rate of between ten and thirty percent per year. In addition, during COVID, it became more difficult to process requests. Our staff has been working overtime to address this increased volume and we have also brought on temporary employees during this time period. The administration has requested two additional positions for the Clerk’s Office for next fiscal year to assist us in addressing this significant growth in public records requests.”

The link to view the entire content of the KOAT 7 report is here:

https://www.koat.com/article/government-is-paying-out-big-bucks-for-not-releasing-public-documents/39714674

COMMENTARY AND ANALYSIS

The city paying out a $300,000 settlement to a citizens militia group for IPRA violations falls squarely into the category “When the hell will they ever learn?” The New Mexico Inspection of Public Records Act (IPRA) has been around for decades and the New Mexico Attorney General goes so far as to advise public agencies how it works and how it is enforced. Keller himself as a former State Senator and State Auditor likely knows full well how the IPRA law works.

It is difficult to understand why the city felt it was necessary to hire a private attorney to represent Mayor Tim Keller to the tune of $17,000 to defend him on cell phone records.  It’s likely the cell phone records would reveal very little on the days leading up to and including the protest, unless of course private calls were being made to people that would prove embarrassing to Keller. What was  also embarrassing is  State District Judge Joshua Allison reviewing  a copy of the redacted “Operation Plan” provided to him by the city and found it contained “substantially fewer redactions” than the redacted version provided to the militia members who filed suit.

The bottom line is City Attorney Lauren Keefe’s explanation as to why the city would settle and pay $300,000 to as  citizens militia group was embarrassing and the city’s conduct of  not adhering to the Inspection of Public Records Act was inexcusable

On October 18, declaring that the city is in need of between 13,000 and 28,000 housing units to address the city’s short supply of housing, Mayor Tim Keller announced his “Housing Forward Abq” plan.  It is a “multifaceted initiative” where Mayor Keller has set the goal of adding 5,000 new housing units across the city by 2025 above and beyond what private developments and the construction industry normally creates each year. The multifaceted initiatives include major amendments to the Integrated Development Ordinance (IDO) to allow the construction of  750 square foot “casitas” and duplexes on all existing single family homes and “motel conversions”.   According to Keller, the city needs to work in close conjunction with the city’s residential and commercial real estate developers to solve the city’s housing shortage crisis.

MOTEL CONVERSIONS

Mayor Keller’s “Housing Forward ABQ” places great emphasis on “motel conversions”.  A  zoning change already enacted by the city council in early 2022 year eased the process for city-funded motel conversions by allowing microwaves or hot plates to serve as a substitute for the standard requirement that every kitchen have a cooking stove or oven.

“Motel conversions” includes affordable housing where the City’s Family & Community Services Department will acquire and renovate existing motels to develop low-income affordable housing options. Keller’s plan calls for hotel or motel conversions to house 1,000 people by 2025.

The Keller Administration proclaims that motel conversions are a critical strategy for addressing the city’s housing shortage. The city proclaims motels conversions are a simpler, lower-cost alternative to ground-up construction.  According to the Keller Administration, the cost per unit for new construction is $300,000, while the cost per unit for a renovated motel conversion is $100,000.

The existing layout of the motels makes it cost-prohibitive to renovate them into living units with full sized kitchens.  An Integrated Development Ordinance amendment provides an exemption for affordable housing projects funded by the city, allowing kitchens to be small, without full-sized ovens and refrigerators. It will require city social services to regularly assist residents.

On March 1 it was reported that the City of Albuquerque is moving forward with its plans to transform existing hotels and motels into housing units for low-income housing by issuing a Request for Information (RIF) from any and all property owners who might be interested in selling their motels or renovating them into affordable housing units. The city is moving forward with the plan despite objections from the private sector, affected business owners, neighborhood associations and community activist organizations such as “Woman Taking Back Our Neighborhoods”.

The link to the full news report is here:

https://www.kob.com/new-mexico/albuquerque-moves-forward-with-plan-to-transform-hotels-motels-into-housing-units/

The Keller Administration has already made it known it wants to add 1,000 housing units to it already existing 500-unit inventory and it intends to buy 5 more motels to renovate them into low income housing. Informed city sources have said that the city has had at least 15 motel owners who have expressed an interest in selling their motels. However, the city has not disclosed the properties not the amounts. The city source also confirmed that none of the 15 motels are in motel circle.

CITY BUYS “SURE STAY” HOTEL

One area of the city that has been targeted in particular by the Keller Administration for motel conversions is “Hotel Circle” in the North East Heights. The area is considered a “high crime” volume area because of the thousands of APD calls for service to deal with crime at the motels. Located in the area are not only a number of motels but it is also the largest shopping area in SE and NE Albuquerque near I-40. The businesses in the area include Target, Office Depot, Best Buy, Home Store, PetCo and the Mattress Store and restaurants such as Sadies, the Owl Café, and Applebee’s and other businesses.

On February 11 it was reported that the City of Albuquerque has executed a purchase agreement for the purchase of the Sure Stay Hotel located at 10330 Hotel NE for $5.7.  million to convert the 104-room hotel into 100 efficiency units.  On April 17, Mayor Tim Keller held a press conference and announced the city had  finalized purchase of the Sure Stay Hotel and the city intended  to renovate the building into 100 apartments for low and moderate-earning households. Keller said the new apartments will help address the housing shortage while providing a quality living situation.

Keller said this about the Sure Stay Hotel purchase and renovation:

“We think this particular area of town has had a lot of crime challenges and I want to remind people in the surrounding areas, we’re going to take care of this property. … This is going to be sustainable housing. It’s going to be much better than transient hotel situations we’ve had in this area.  … We’re doing limited things to the rooms. We’re going to make sure there’s kitchen appliances, then they’re ready to go. … A lot of these hotels have community space. It has a swimming pool that we’ll probably keep, so these will be great places to live.”

City officials said that $3-4 million has been earmarked for renovations. City officials said that converting and remodeling the property is much cheaper than building a new structure. Dan Jiron, with the city’s Family and Community Services Department said this:

“If we wanted to build a new 100-unit apartment community, it would cost between 20 and 25 million dollars. …. This is substantially less and gets online quicker.”

The construction is expected to take between six and nine months. Keller said that this is just the beginning and that the city intends to purchase other motels for conversions.

Links to quoted news sources are here:

https://www.koat.com/article/albuquerque-hotel-affordable-housing/43625253

https://www.kob.com/new-mexico/city-of-albuquerque-plans-to-convert-hotel-into-100-apartments/

COMMUNITY MEETING HELD ON SURE STAY MOTEL CONVERSION

On April 18, the City of Albuquerque held a community meeting at the Manzano Mesa Multigenerational Center to make a presentation on the motel conversion by the city of the Sure Stay motel. Present were representative of the city including Family and Community Services Director Carol Pierce, the Mayor’s Office and the APD Area Commander as well as 3 representatives of Monarch Properties, the private  property management company that has been contracted to manage the property. Family Community Services Director Carol Pierce  announced that the city is conducting a contest to rename the motel.

Public attendance at the April 18 meeting  was somewhat sparse with about 12 people in attendance. A number of the attendees expressed open hostility towards the city making the purchase and proceeding to with motel conversions. Notwithstanding, the city proceeded with its presentation.

ABOUT MONARCH PROPETIES

Monarch Properties, Inc was established in 1982 and it specializes managing local, reginal and federal funded low income housing, including USDA, HUD, LIHT funding. Currently, Monarch manages properties in 96 communities containing over 8,000 housing units with upwards of 24 property owners throughout the country.  Monarch Property Management has a 20 year history of doing business with the City of Albuquerque and currently manages the 500 housing units the city already has in its inventory owned and rents to low income and government housed subsidized tenants.

Once renovations of the Sure Stay Motel are completed, Monarch will add the 100 units to the inventory it already manages for the city.  Monarch’s current property management contract will expire in about two years subject to renewal. According to Monarch Officials, it will charge the city 4% to 6% of the total yearly gross rental income from the property as its management fee which is standard within the industry. The City and Monarch Properties made it clear that the property will not be operated to turn a profit for the city  but will be managed and operated at a “break even” level. As it stands, no proposed operating budget is in place but is expected to be developed over the coming months.

PROPERTY OVERVIEW

The city gave the following property overview of the motel:

The Stay Motel was purchased on April 10, 2023 for $5.7 Million using funding from HUD and the State of New Mexico.

The property was purchased by the city because it is considered above average in conditions and was properly maintained. The facility is structurally sound and  up to all city codes needing very little if any major repairs to the overall facility.  The motel was purchased with all furnishings.

The facility has 104 hotel rooms, approximately 250 square feet each.

Existing amenities include the following:

A dining room

Small conference room

Indoor pool

Fitness room

Courtyard

TIME LINE GIVEN

During the April 18 community meeting, the city gave the following time line:

April 10: City acquires the property after about 6 months of negotiations

April 10: Monarch Property Management is put in place

April 14: 24/7 security plan is established until construction concludes

May 5:  The city completes installation of permanent rod iron fencing for security

May: Renovations will commence

December: First phase of construction will be completed

January, 2024: Phase One of the leasing will begin with all units leased over a 6 to 9 month period.

VISION FOR THE CONVERSION

According to city officials, the goal is to convert the 104 existing motel units into 90 to 100 single room efficiency apartments or one-bedroom apartments. Architectural design plans exhibited reflected single room studio efficiency apartments or one bedroom and a separate living room area apartment.  The facility will be owned debt free by the city but managed by a professional property management company with Monarch Property Management selected. The facility will be a “mixed-income” community and it will have an “on-site” government services coordinator. The financial stability of the tenants will be a major goal.

TARGETED CLIENTELE

According to city officials, those who might live in the efficiency apartments would include the following:

A person who is exiting homelessness and who ostensibly has secured steady employment and who can pay some rent

A single parent with a full time job and a young child

A person with a disability who is living on disability benefits

A senior on social security

A full-time college or graduate student with a full-time job

TERMS AND CONDITIONS OF THE LEASE

During the April 18 community meeting, Monarch Property Management outlined the screening process it will use to rent the motel conversion and the terms and conditions of the leases.  Monarch Proprieties declined to state with any certainty what the studio apartments and efficiency apartments will rent for a month stating that the rents still need to be determined.  The motel conversion market is new terrain for the company and cannot be compared to the existing city property it is managing.

According to Monarch official’s, a screening process for potential tenants will be implemented. The following will be required:

Written applications will be required

Low income qualifying levels will be established with affordability of rent below market a major goal

Federal government subsidized housing will be accepted

There will be no screening nor requirement for United States citizenship in that federal law prohibits such screening to prevent  the undocumented from renting

Credit checks will be required, not as a qualifying factor with a minimum credit score,  but to determine ability to pay rent

Criminal background checks will be required but only recent convictions of 5 years or less, depending on the type of crimes such as violent crime, will be considered as disqualifying

Registered sex offenders will not be allowed to lease.

Deposits will be required but deposit amounts  based on ability to pay and deposits will not be the same for all tenants

One year leases will required with no “week to week”  and no “month to month” leases

Utilities will be included for all rental units

There will be no maintenance fees for exterior maintenance or courtyard area

There will no fees charged for use of the property’s amenities (indoor pool, fitness room, dining room)

Rules and regulations for occupancy will be established

The standard breach of lease provisions and “notice of eviction” process as provided for in the New Mexico Owner- Resident Relations Act will be implemented

CITY’S FINANCIAL COMMITMENT TO LOW INCOME SUBSIDIZED HOUSING

An examination of the City of Albuquerque’s  financial commitment to affordable and supportive housing is in order. It is the Family and Community’s Services Department that is funded each year by the City Council  to provide  affordable and supportive housing to the low income, those that live in poverty and the near homeless.

In fiscal year 2021-2022,  the Family and Community Services Department and the Keller Administration spent upwards of $30 Million to benefit the homeless or near homeless. The 2021 enacted city budget lists 31 separate contracts  for affordable housing and community housing totaling $18,191,960,  twenty (20) separate emergency shelter contracts which included motel vouchers totaling  $6,421,898,  twenty nine (29) separate homeless support services contracts totaling $3,624,213 for a total of $28,238,071.

The link to the 2021-2022 city approved budget is here:

https://www.cabq.gov/dfa/documents/fy22-approved-budget-numbered-w-hyperlinks-final.pdf

Mayor Keller’s 2022-2023 approved budget significantly increased the Family and Community Services budget by $24,353,064 to assist the homeless or near homeless by going from $35,145,851 to $59,498,915.   A breakdown of the amounts to help the those in need of housing assistance included 33 separate contracts totaling  $42,598,361 for affordable housing and community contracts,  nineteen (19)  emergency shelter contracts, including motel vouchers, totaling $6,025,544 for a total of $48,623,905.  The 2022-2023 adopted city contains $4 million in recurring funding and $2 million in one-time funding for supportive housing programs in the City’s Housing First model and $24 million in Emergency Rental Assistance from the federal government.

The link to the 2022-2023 budget it here:

https://www.cabq.gov/dfa/documents/fy23-proposed-final-web-version.pdf

On April 1, 2023, Mayor Tim Keller submitted to the City Council for its review and approval his 2023-2024 proposed budget. The Fiscal Year 2024 budget includes $14 million in non-recurring funding for supportive housing programs in the City’s Housing First model. The Family and Community Services proposed budget lists forty five (45) separate affordable housing contracts totaling $39,580,738, fifteen (15) separate emergency shelter contracts totaling $5,575,690,  and twenty seven (27) separate homeless support service contracts totaling $5,104,938 for a total of $50,261,366.

The link to the 2023-2024 proposed  budget it here:

https://www.cabq.gov/dfa/documents/fy24-proposed-web-version.pdf

COMMENTARY AND ANALYSIS

Mayor Tim Keller has given his Family and Community Services Department an astonishing amount of authority and funding to acquire existing motels and hotels and they are doing so with little or no oversight by the Albuquerque City Council. At one of his recent telephone town hall meeting, Keller proclaimed that if he had it his way, the city would purchase all derelict motels along Central and convert them into low-income housing.

Simply put, motel conversions is the acquisition of private property to promote a politcal agenda to supplement the housing market and the private sector when the city is already spending $50 to $60 million each year for low income and affordable housing. The city already owns and operates 8 existing housing facilities with 500 units managed by the Family Community Services Department and Monarch properties. Mayor Keller wants to triple that number by adding 1,000 units to the city’s inventory of low-income housing. When is enough enough?

At issue and what must not be overlooked is the astronomical cost of motel conversions. The purchase of the Sure Stay Motel is a prime example.  The $5.7 million purchase price for the 104-unit complex translates into $53,807.69 per unit ($5.7 million ÷ 104 = $53,807.69 per unit).  City officials said that the city’s estimated cost is $100,000 per unit to fix up or remodel existing motels. The city is now saying it has said aside $3 to $4 million for renovations of the Sure Stay Motel, but the amount is difficult to believe as being be enough.

Using the city’s own estimated remodeling costs for the Sure Stay Motel, an additional $10 Million will be needed to remodel the motel for low income housing. ($100,000 per unit X 100 efficiency apartments = $10 Million). Therefore, the entire Sure Stay conversion project will likely have a final cost of $15,700,000.  ($5.7 purchase cost + $10 Million remodeling cost = $15,700,000)

The biggest issue is does the city have any business getting involved with the motel-hotel conversion business and should there be any limit on the number of housing units the city can have in its inventory for low-income housing?