Conservative Republican City Council President Dan Lewis is leading the charge with sponsorship of 4 major city charter amendments proposing sweeping changes to Albuquerque’s City Charter and the way city government is run.

The first charter amendment sponsored by Republican Dan Lewis and co-sponsored by Democrat Councilor Klarissa Pena. It would reducing the vote threshold to win a City Council or mayoral race from 50% to 40%.  If no candidate secures 40% of the vote, then there would be a runoff.

The second charter amendment would create a committee, staffed with representatives from both the City Council and the Mayor’s Office, to recommend candidates for city attorney and city clerk. The measure would also require the roles to be filled within 90 days of the start of a mayoral term and ensure that the city attorney and city clerk can be removed for cause, determined by the Office of the Inspector General, by the mayor and a two-thirds vote from City Council.

The third charter amendment would change the requirements to remove a chief of police or fire chief. As the amendment stands now, the Mayor could remove either position for any reason or without cause.  The current charter requires cause to remove the police and fire chief. The City Council could also remove either position with a supermajority vote which would be 7 votes of the 9 member city council after cause is determined by the Office of the Inspector General.

The fourth charter amendment would creating a process to fill vacancies on the committee that is intended to handle separation-of-powers conflicts between the mayor and the City Council.

The link to a relied upon news source is here:

https://www.abqjournal.com/news/preview-changes-to-city-charter-zoning-code-on-the-city-council-agenda-for-tonight/article_3906fbbe-2b62-11ef-8e4d-7b97b205e99d.html

The sponsors of the 4 amendments say the changes would streamline and add transparency to city elections and hiring procedures.  All four of the Charter Amendment will have to clear the city council before they  are put  on the November ballot unless the Mayor vetoes the measures and the council does not vote to override the vetoes. If the charter amendments  clear the  city council, they will  go directly to voters for their approval.

All 4 charter amendments are scheduled to be debated and voted upon at the June 17 Albuquerque City Council meeting.  

ALBUQUERQUE JOURNAL GUEST OPINION COLUMNS

On June 3, the Albuquerque Journal ran a guest opinion column submitted by Mayor Tim Keller and on June 16, ran guest opinion columns submitted by State Senator Bill Tallman, Albuquerque City Council President Dan Lewis and City Councilor Juaquin Baca Juaquin on the 4 proposed charter Amendments. All 4 opinion columns are being published on www.PeteDinelli.com as a public service.

JOURNAL EDITORIAL PAGE HEADLINE: “City Charter reforms would make Mayor’s Office less effective and less accountable”

BY Mayor Tim Keller

“Over the past six years, I’ve been honored to serve as your mayor. There’s no question that our city faces tough challenges, but I ran for mayor because I fundamentally believe that a mayor has the ability to impact meaningful change.

I also believe the mayor can – and is – held accountable to all residents in Albuquerque.

I write today not for myself or to explain my accomplishments or vision, but on behalf of the very institution that underpins “the mayor,” regardless of who the person is.

City Council has taken up a number of changes to city policy that are fundamentally about taking accountability away from the only citywide elected official – the mayor – and diluting that individual accountability by creating a system of “governance by committee.”

We know instinctively that if everyone is in charge, then no one is in charge. This is the wrong direction for our city.

Over a decade ago, voters gave a clear mandate and raised the minimum vote requirements for elected officials in our city from 40% to 50%. For me, this common-sense change was about strengthening our democracy and ensuring the broadest levels of support in our community for those in positions of power, including a mayor, who has direct accountability to all residents.

Despite this, some councilors have proposed removing the majority vote in our city elections.

Not only is the proposal undemocratic, it’s political, and the biggest beneficiary of the 40% threshold is incumbents.

As the saying goes, “it takes one to know one,” and this change would lower the bar for incumbents, in a city with no term limits, to stay in office.

And while this move would undoubtedly benefit my own electoral chances, I cannot in good conscious support something so self-serving.

It’s no secret that there are perks and privileges that come with holding elected office. Incumbents enjoy lower barriers of entry to receive media coverage, easier access to other community leaders, and a bully pulpit to communicate more broadly with the public.

These advantages are not typically accessible to those vying for office for the first time. By reducing the number of votes needed to win an election, City Council is inherently voting on a policy that would make it easier to stay in office while boxing out newcomers.

In totality, the charter changes are at best the wrong answers to outdated language, or at worst a political power grab that erodes the fundamental concept of a representative democracy.

Today, I am truly your mayor because the majority gave me this chance. I serve the whole city, not just a district or a party. This job gives me the ability to lead our city and manage our local government, and you rightly hold me accountability for that each and every day.

I know some folks may not always approve; I make missteps as well as progress, but it’s the job I ran for and the job you gave me. There is no dispute that I am your mayor.

These changes destroy that very dynamic, pushing the mayor toward ceremony and soundbite. They hollow out the idea of “the buck stops here” and fundamentally erode direct singular accountability in our city.

These are some of the moments where it matters most — politics aside — to double down on the democratic values that make our city great.

Our community expects, and deserves, us to be focused on tackling crime and finding solutions to curb homelessness, not wasting time on distractions that are ultimately political ploys for power.

Please join me in asking City Council to pause on these reforms and establish a Charter Review task force, as we have in decades past, to have an open and deliberate process with our community to make our democracy stronger.”

The link to the guest column is here:

https://www.abqjournal.com/opinion/opinion-city-charter-reforms-would-make-mayors-office-less-effective-and-accountable/article_0aa64c2e-1f79-11ef-97d7-dfb3754a937d.html

 JOURNAL EDITORIAL PAGE HEADLINE: “All four City Charter proposals are a power grab”

BY State Senator Bill Tallman, Albuquerque Democrat

“Several Albuquerque city councilors have introduced four ordinances dealing with elections and the appointment of certain city officials.

The first deals with reducing the percentage of votes needed for mayoral and City Council candidates to win an election from 50% to 40%. The proponents claim their motive is to save the cost of a runoff election. In truth, this is not about saving city funds, but rather it is all about the realization that the only way for a GOP candidate to win a mayoral or council election is to lower the percent of votes needed to win. Requiring less than a majority vote is undemocratic.

Furthermore, just a short 11 years ago, Albuquerqueans voted to change the percentage of votes needed from 40% to 50%.

The second and third proposals would greatly diminish the mayor’s authority to hire and fire the city attorney, city clerk, police chief and fire chief.

The fourth proposal would give the council an unfair advantage in selecting the third member of a three-member committee tasked with resolving separation of power disputes between the executive and legislative branches.

All four proposals can be characterized as a power grab.

These four proposals would greatly undermine the authority of the mayor and could lead to a weakening of the separation of powers between the policymakers/legislative branch — City Council — and the executive branch — mayor/department heads.

Having served as a city or assistant city manager for 35 years, I have a great deal of experience dealing with the relationship between the executive and legislative branches of city government. It is important that the two branches not be in conflict with each other.

No management expert would recommend this intrusion by the legislative branch into the proper functions of the executive branch. City councilors are similar to a corporation’s board of directors. Rarely would a board of directors intrude into the hiring and firing of the company’s department heads. It simply would not be on anyone’s list of best management practices.

If more of this type of intrusion continues to undermine the separation of powers, it could eventually lead down a slippery slope to chaos whereby everyone is in charge, so no one is in charge.

Why is separation of powers so important?

1. Policymaking and implementation: Councils create policies, while mayors and city managers implement them. This division of duties ensures a balance between policy development and execution, preventing concentration of power in one branch.
2. Checks and balances: Similar to the federal government, local governments rely on separation of powers. Councils serve as a check on the mayor’s executive authority, ensuring decisions are well-considered and transparent.
3. Efficiency and effectiveness: By separating policymaking from operational duties, local governments enhance efficiency and service delivery. Elected officials focus on policy, while mayors and managers handle administrative tasks.
4. Avoiding dominance: Without checks on power, either the council or the mayor could dominate the government. A city functions best when the mayor and city councilors stay within their respective roles. Separation of powers prevents undue influence and promotes collaboration.

In summary, this separation ensures a healthy balance, accountability, and effective governance within local communities. The last thing ABQ needs is a dysfunctional government.

Among the major cities in the Southwest, ABQ has had the smallest population growth since the 2008 recession and has the least robust economy. These proposed ordinances would do absolutely nothing to reverse our low ranking. Do we want to exasperate an already distressing situation?”

JOURNAL FOOTNOTE: Bill Tallman represents District 18 in the New Mexico Senate.

The link to the guest column is here:

https://www.abqjournal.com/opinion/opinion-charter-proposals-could-lead-to-a-weakening-of-the-separation-of-powers/article_77886cf8-2a98-11ef-bf83-8f9b70f1ac40.html

JOURNAL EDITORIAL PAGE HEADLINE: “Proposed charter amendments need further examination”

BY Juaquin Baca, Albuquerque City Councilor

“The recent changes proposed to the City Charter by several city councilors require more public input and education than allowed by the current council president.

These changes would reduce the votes needed to win council and mayoral elections without a runoff from the present 50% to 40% and increase the power of the City Council to hire and fire key members of any administration. At the last council meeting, the public comment was late-night, and held long after many members of the public had left.

When major changes to the City Charter involving elections and the balance of power between the various branches have been contemplated in the past, they have been thoroughly vetted in advance by a Charter Review Task Force.

In 2009, for example, a 15-member blue ribbon charter task force held 18 meetings — several of them televised, allowing ample time for public suggestions and testimony. The result was spirited discussion and civic engagement on the Election Code, councilor and mayoral salaries, confirmation of mayoral appointments by the council and methods for amending the charter, which was largely written in 1971. Proposed changes were referred to the council and many were adopted either there or at the ballot box.

To be clear, I do not support these changes to the charter. I don’t understand why we’re revisiting an issue that voters decidedly approved 10 years ago when this council has pressing issues like homelessness, public safety and housing to wrestle with.

All that said, a regular review of what amounts to our city’s constitution is a good idea. That’s why I’ve introduced a resolution, R-24-58, to create such a task force. The measure will be heard at Monday’s City Council meeting, and I invite the public to weigh in.

Like the 2009 task force, this proposed group would include 15 members, one member selected by each councilor, one at-large member selected by the council to chair the task force, and five members selected by the mayor. It would be staffed by both the City Council and the Mayor’s Office.

The current proposals to reduce the number of votes needed to be elected mayor or councilor without a runoff and those that would shift the balance of power between the council and the mayor would be topics, but the task force could consider other updates as well.

Yes, establishing a blue-ribbon Charter Review Task Force will slow down the amendment process. But what exactly is the rush? Is it to make sure that the reduced threshold for winning a council or mayoral election from 50% to 40% will be in place before the next city election?

If the council-initiated measure passes, it will affect current councilors and mayors, reducing the number of votes required to win. Do we really believe that is OK? It may be legal, but it certainly seems like a bad idea.

The 2009 Task Force was chaired by a district judge, and its recommendations, by in large, were adopted. Although its members did not always agree, it was a way to educate the public and forge a consensus, from which recommendations emerged.

That’s a far better way of amending our charter than through a rushed process, which excluded committee hearings, lasted just one month, and allowed for only the bare minimum of public input.”

JOURNAL FOOTNOTE: Joaquin Baca represents District 2 on the Albuquerque City Council, which includes the greater Downtown, North Valley, West Side, and Kirtland portions of the city.”

The link to the guest column is here:

https://www.abqjournal.com/opinion/opinion-proposed-charter-amendments-need-more-examination-and-public-input/article_908c6b08-29f5-11ef-b2e1-57817d968366.html

JOURNAL EDITORIAL PAGE HEADLINE: “Runoff elections are rooted in racist strategies in the South”

BY Dan Lewis, President Albuquerque City Council

“In 2011, union bosses in Albuquerque initiated a significant change to the city’s electoral system, transitioning from a plurality “most” vote requirement, which allowed for a diverse slate of candidates, to a majority vote winner system.

This shift has led to more than a decade of runoff elections and what many view as voter suppression.

The sole reason for this push was their strong aversion to then-Mayor R.J. Berry, a fiscal conservative who took office after 30 years of Democratic mayors. The city faced hundreds of millions in budget shortfalls at the beginning of Berry’s term, necessitating spending freezes that enraged the union bosses.

Although labor members eventually received unprecedented raises and Berry was reelected with a significant 68% of the vote, the union bosses vowed never to let another fiscal conservative become mayor.

Fast forward to today, and these same union bosses now decry the proposed change back to a popular vote with a 40% threshold as “undemocratic.” The hypocrisy here is striking, considering that many union leaders are elected by simply securing the most votes of their members.

The push for runoff elections is not only hypocritical but also, some argue, rooted in racism. The effort bears a troubling resemblance to historical racist strategies in the South designed to prevent minorities from winning seats long held by white politicians.

The reasoning was that minorities would be less likely to receive a majority of votes in an initial election that required a threshold percentage, and voter turnout would drop in runoff elections, ensuring the election of white candidates.

Democracy advocates like Rock the Vote have highlighted these concerns. In a 2022 article titled “Runoff Election: An Explainer,” the organization explained how, in the South, “white factions that existed in primary elections could unite in a runoff election to support one candidate and reduce the chances of winning for any candidate favored by Black communities or other communities of color.”

Now, the Albuquerque City Council is considering a slate of reforms to City Hall, including a ballot proposition to revert to a system allowing a more diverse slate of candidates.

A “yes” vote on Proposition 1 is a vote for democracy in Albuquerque.

The union bosses say they trust Albuquerque voters. Putting Proposition 1 on the ballot is an opportunity for their members and all Albuquerque voters to decide how they want their government to run.”

JOURNAL FOOTNOTE: Dan Lewis represents District 5 on the Albuquerque City Council and also serves as president of the council.

The link to the guest column is here:

https://www.abqjournal.com/opinion/opinion-runoff-elections-are-rooted-in-racist-strategies-in-the-south/article_159a1768-29f7-11ef-b97d-2732dbdccdf0.html

COMMENTARY AND ANALYSIS

On January 1, 2024  the new city council after the November, 2023 election was sworn into office. The philosophical breakdown of the city council  is as follows:

Democrats

District 1 Conservative Democrat Louie Sanchez
District 2 Progressive Democrat Joaquin Baca
District 3 Moderate Democrat Klarissa Peña
District 6 Progressive Democrat Nichole Rogers
District 7 Progressive Democrat Tammy Fiebelkorn

Republicans

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

Although the City Council is split with 5 Democrats and 4 Republicans, Conservative Democrat Louie Sanchez has often allied himself with conservative Republicans Dan Lewis, Renee Grout, and Brook Bassan and Dan Champine to approve or kill measures on a 5-4 vote but being unable to override Mayor Tim Keller’s veto’s with the required 6 votes.

The first item of business of the new city council once they were sworn in on January 1, 2024 was the election of a new City Council President and Vice President. It came as no surprise that Conservative Democrat City Councilor Louis Sanchez voted for Republican Dan Lewis as the new City Council President and voted Republican Renee Grout for Vice President with the votes being Sanchez, Lewis, Bassan, Champine and Grout.

Notwithstanding the Democrat majority, the new more conservative city council has shown significant resistance to Mayor Keller’s progressive agenda as going too far.  Repeatedly the current more conservative city council have attempted to repeal ordinances and resolutions enacted by the previous more progressive city council and to limit the authority of Mayor Tim Keller.  Prime examples include the following:

1. A resolution to repeal or limit mayoral authority during a public health emergency.
2. A resolution baring the city from mandating covid-19 vaccines for the municipal government workforce.
3. Resolution directing the city administration to consider and “push to renegotiate the terms of the federal court approved settlement agreement.”
4. Repeal of a quarter cent tax increase in gross receipts tax enacted a few years ago.
5. Repealing or attempting to amend the City’s “Immigrant Friendly” policy calling it a “Sanctuary City” policy and requiring  APD to assist and cooperate with the federal immigration authorities.

NOT THE FIRST TIME

This 4 charter amendment are not the first time that the conservative city council has attempted to reduce the authority of Mayor Tim Keller by City Charter Amendments. The relations between Mayor Tim Keller and the more conservative majority city council deteriorated so significantly that on April 27, 2023 first term City Councilors Democrat Louie Sanchez and Republican Renee Grout announced legislation proposing a City Charter amendment for a public vote that would have made the Mayor of Albuquerque a member of the City Council.  They wanted to transfer all the mayor’s executive and city management duties to a city manager chosen by the city council. According to the proposed legislation, the mayor would have been “recognized as the head of the City government for all ceremonial purposes”.  

The legislation was never vetted, researched or recommended for approval by the City Charter Review Task Force responsible for making recommendations for charter amendments.  Under the proposed legislation, a “professional” city manager would be selected by the City Council to oversee and manage all 27 city departments and directors. The city’s existing Chief Administrative Officer (CAO) already serves this function and presumably would be abolished. The city manager would administer the city’s personnel rules and regulations for the over 7,000 city employees.  The City manager would be responsible to prepare and formulate the city’s annual operating budget for city council review and adoption.

4 CHARTER AMENDMENTS REFLECT PERSONAL VENDETTA AGAINST KELLER

It is common knowledge that Mayor Tim Keller is seeking a third term as Mayor in 2025. Mayor Keller does so despite the fact that an Albuquerque Journal poll found that Keller has a 33% approval rating which in all likelihood is only getting worse.  A 2024 Citizens Satisfaction Survey found that 63% of residence are concerned over the direction the city is going and 61% disagree that City Government is responsive to Community needs with both survey results reflecting poor leadership of city resources by Mayor Keller. The links to review both polls are here:

https://www.abqjournal.com/2545820/mayor-kellers-job-approval-rating-sinks.html

https://www.cabq.gov/progress/documents/albuquerque-yearly-survey-2023.pdf

Its downright offensive to city voters that City Council President Dan Lewis is pulling the “race card” alleging runoff elections are rooted in racist strategies in the South. It also pathetic that he blames city union bosses for the change in the law.  He conveniently ignores the fact that it was voters who changed the charter provisions by requiring run offs where no one candidate secures 50% of the vote. Least anyone has forgotten, Tim Keller won the 2017 runoff for Mayor against Dan Lewis  by a decisive landslide with 62.20% by securing 60,219 votes to Lewis 37.8% who secured 36,594 votes. Dan Lewis is likely carrying a personal grudge against Tim Keller because of his inability to stop the Keller progressive agenda.

The relations between Mayor Tim Keller and the more conservative majority city council have deteriorated because of the sure frustration the conservatives on the council have experienced in not being able to stop the Keller progressive agenda with overriding vetoes.  As a result, the city council is once again trying to get city voters to change our basic form of city government with charter amendments in order to carry out a personal vendetta against a Mayor they do not like and who they perceive as ineffective and unpopular.

All 4 City Council Charter amendments should be rejected outright. Voters and residents are urged to attend the June 17 city council meeting that will be held beginning at 5:00 pm in city council chambers located in the basement of city hall or call and voice their opinion and tell all city councilors to vote NO on all 4 of the proposed charter amendments. Their phone numbers and email address are:

CITY COUNCIL PHONE: (505) 768-3100

CITY COUNCIL EMAILS

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

The link to a related Dinelli blog article is here:

Conservative City Council Continues With Personal Vendetta Against Mayor Tim Keller And His Progressive Agenda; Council Proposes Sweeping City Charter Amendments To Impact Mayor Keller Re-Election Chances And To Give City Council More Power Over Appointments If He Is Re Elected, Which Is A Big If

On June 6, Governor Michelle Lujan Grisham’s Office outlined to the Court, Corrections and Justice Interim Committee five public-safety measures she wants legislators to address during the July 18 special session of the New Mexico legislature.

The 5 public safety bills are summarized as follows:

The first bill  would make changes to the state’s criminal competency law. The first bill would send criminal defendants who are found incompetent to stand trial to a mental health or behavioral health treatment program. Supporters say there are far too many suspects who are arrested, deemed incompetent to stand trial, and then released back on the streets only to commit more crimes. It’s a bill designed to address in part the  so-called “revolving door” where defendants are arrested only to be found incompetent to stand trial and then released.  The bill, which did not make it very far in the previous legislative session, is at the top of the special session agenda. The legislation is intended to strengthen a 2016 law and a program originally signed into law by former Governor Susana Martinez that allows district judges to order involuntary treatment for people with severe mental illness who have frequent brushes with law enforcement. It involves a program called the “Assisted Outpatient Treatment” (AOT).

The second bill  would  expand a program that mandates involuntary treatment for people with mental illness. The bill is an assisted out-patient treatment bill proposal that would allow a judge to mandate out-patient treatment, including involuntarily commitments. It would  allow individuals, whether first responders, family members or community members who work with mentally ill individuals on the streets to request involuntary out-patient treatment.

The third bill  would strengthen penalties for a felon convicted of possessing a firearm, making the crime a second-degree felony, punishable by a minimum of nine years in prison.

The fourth bill  would prohibit pedestrians from occupying highway medians, on-ramps and exit ramps.  The bill is intended to address individuals loitering on street medians despite a similar bill receiving pushback in the 2024 legislature over its constitutionality. It failed to pass. Agajanian said that the new median bill would contain language that says that in places where a speed limit is more than 30 miles per hour, individuals may not loiter on a median that is 36 inches or less

The fifth bill would require law enforcement agencies to report certain monthly crime incident reports and ballistic information.

Three of the five measures are leftovers from the 2024 legislative session. Those 3 measures are median safety bill that is often described as a panhandling ban, increasing penalties for felons caught with firearms, and new data collection and sharing requirements for law enforcement agencies.  It is the two new proposals on mental health commitments that are complicated. One of them is reworking the state’s criminal competency laws, ideally making it easier for the courts to mandate certain suspects into behavioral health treatments. The other is an assisted outpatient treatment bill.

REPUBLICAN LEGISLATORS SLAM GOV. MLJ PROPOSAL TO STRENGTHEN SUPERVISED OUTPATIENT TREATMENT PROGRAM

On Monday, June 10, three Republican House leaders sent a letter to Governor Michelle Lujan Grisham criticizing her decision to make changes and strengthen behavioral health legislation in a special session calling the legislation too complex for a Special Session.  The Governor wants to expand a court-supervised outpatient treatment program for people with severe mental illness.  The governor is asking lawmakers to make revisions to the complex system judges use to determine mental competency for people charged with criminal offenses.  The  Bill  is intended to expand a 2016 law that allows district judges to order involuntary treatment for people with severe mental illness who are frequently jailed or hospitalized.

In a letter signed by House Republican Leader Rod Montoya, House Republican Whip Alan Martinez and Republican Caucus Chair Gail Armstrong they call the governor’s plan “undoable.”  The Republican leadership in the letter tell the Governor:

“Making such major changes to these highly complex systems during a two- or three-day special session is simply not good public policy and will undoubtedly result in many unintended consequences due to the lack of needed consideration and debate.”

The Republican lawmakers  criticize what they describe as a lack of analysis of the cost of the proposals and “no apparent plan as to how many behavioral health service providers will be needed.”  They also questioned the need to revise existing statutes.

GOVERNOR PUSHES BACK

Governor Lujan Grisham was quick to fire back asserting that the legislation can be passed if lawmakers “roll up their sleeves and work with me to get it done.”  The governor said in a written statement:

“Republicans contend that making New Mexico a safer place during the special session under my proposals is ‘undoable’ — an assertion I flatly reject.  … State lawmakers of both parties must ask themselves if they are comfortable with more crime and more homelessness, because business owners and rank-and-file New Mexicans are fed up.”

The Governor called on lawmakers to help pass her “common-sense public safety reform agenda” at the special session and she said this: .

“We can make our state safer but it’s going to require some hard work, a can-do attitude, and a collaborative approach.”

ASSISTED OUTPATIENT TREATMENT PROGRAM

One of the governor’s proposals is intended to strengthen a 2016 law that allows district judges to order involuntary treatment for people with severe mental illness who have frequent brushes with law enforcement. The program is called the Assisted Outpatient Treatment, or AOT, was approved by lawmakers in 2016.

The court-supervised Assisted Outpatient Treatment program is intended for those who have a history of arrests and hospitalizations and who do not or who are unlikely to voluntarily adhere to prescribed treatments.  The law passed in 2016 allows for State District Court Judges to order people into mandatory treatment programs, which includes medication, therapy or drug testing. Participants have to be at least 18 years old, have a mental illness diagnosis and have a history of not following through with treatments ordered. Under the original law passed, cities and counties have to opt into the program to participate.

In the eight years since the law was enacted, only Doña Ana County, in the state’s 3rd Judicial District, has implemented a functioning AOT program.  Holly Agajanian, chief general counsel for the Governor’s Office, told members of the House Courts, Corrections and Justice Committee last week that legislation is needed to expand the program statewide.  Agajanian told lawmakers:

“Even though jurisdictions are already statutorily allowed to implement these programs, they aren’t doing it.”

In a written statement issued June 11, House Republican Whip Alan Martinez said the proposals would be better addressed in the 60-day regular session in 2025 after careful study this year. Martinez said this:

“The result will be many unintended consequences that could make the behavioral health system even more inefficient and costly.”

GOVERNOR’S ACTIONS APPLAUDED BY ORIGINAL SPONSOR

Former State Senator Mary Kay Papen, who co-sponsored the 2016 AOT legislation, applauded Lujan Grisham’s effort to expand the program. Papen said this:

“I’m excited that the governor is going to be behind this. … If you get the right people enthusiastic about it and willing to work with it, and you get the right judge who will work with it, it will be successful wherever it goes into place.”

Former Senator Papen said Doña Ana County had the necessary core of people enthusiastic about implementing an AOT program and she said this:

“I think we just embraced it. … We just have the right combination of people here who were interested in it. It’s not just the same old, same old.”

On June 6, Jamie Michael, Doña Ana County’s director of Health and Human Services Department, told the Court, Corrections and Justice Interim Committee that the county started its AOT program with support from a federal grant and ongoing funding from the county’s gross-receipts tax. She estimated that the program serves about 40 people a year at no cost to the individual. Of central importance is identifying a district judge to champion the program. Michael said this:

“The judge is important, and they need to be well trained and really buy into to the program. … It’s important to find a judge who really wants to do this program and who has the ability to connect and communicate well, show empathy, show motivation.”

Under the AOT program, a District Court  judge has the authority to commit a person to mandatory outpatient treatment through a civil-court process. It is not a voluntary program. Participants are not allowed to  opt out of the program after a few weeks.  It’s an involuntary court order that requires a person to follow the treatment plan as ordered by the court.  According to Michael the involvement of a judge has a “black-robe effect” that tends to make people more likely to follow the program’s requirements.

The program typically enrolls people when they are discharged from a hospital with a serious mental health diagnosis. The program also uses a peer-support staff to engage the person.  Michael said this:

“It really supports people who are already kind of engaged in that treatment program,  that treatment system in their community,  but don’t have that extra help to make it a habit and then extra support to help them engage better.”

The link to relied upon and quoted news source is here:

https://www.abqjournal.com/news/governor-gop-lawmakers-spar-over-special-session-proposals/article_48ba8cd4-2788-11ef-8e07-8feab3f34a5e.html#tncms-source=home-featured-7-block

GOVERNOR GETS PUSHBACK FROM SOME DEMOCRATS

During the June 6 meeting of the Court, Corrections and Justice Interim Committee both Democrats and Republicans asked why a special session was needed to be called for legislation that they believed could or should be addressed during a regular session of the legislature.  Even some Democrats took issue with Governor Lujan Grisham’s special session proposals.

Mesilla Democrat State Representative Micaela Lara Cadena said it was hard for her not to feel that the Governor’s proposals are more about “political wins.”  Cadena said this:

“I was part of tabling or not passing bills my good friend Representative (Bill) Rehm brought. We put them in the dumpster and now we’re slapping some Democrat’s names on them and plagiarizing Representative Rehm here….Folks have been trying to have these conversations for a long time now and very quickly in a short summer we have to go because New Mexico is in crisis?”

Several members of the committee expressed concern about the portion of the assisted out-patient treatment program proposal that would allow individuals who have a relationship with the individual suffering mental health problems to seek a process by which the individual could be placed into treatment involuntarily.

Albuquerque Democrat State Senator Antoinette Sedillo Lopez, a licensed New Mexico attorney, said she was worried the mandatory mental health commitment law changes could violate an individual’s constitutional rights.

Albuquerque Democrat State Senator Katy Duhigg said she didn’t feel she had been presented with “great data that this is a solution that solves this problem and that is data I’d want to see before passing this legislation.” Duhigg said she found data from other countries with a quick online search that suggests that involuntary mental health treatment could lead to worse outcomes, rather than better ones. Duhigg asked why the state needed legislative changes in order to establish the assisted outpatient treatment program in every county. In response The Governor’s Chief General Counsel Holly Agajanian said this in response:

“I have to go back to the fact that I don’t suggest that they don’t have the authority to do it on their own. I’m suggesting, it hasn’t been done. We need to require it.”

New Mexico State Representative Christine Chandler, District 23 represents Los Alamos, Sandoval & Santa Fe counties. She chairs the House Courts, Corrections and Justice Committee. Representative Chandler said this about the Special Session:

“I wouldn’t call it optimism, I think maybe you might say people are hopeful we’ll have a productive session. …. You’ll see from our agenda that we’re definitely putting in the work. I am approaching it, and I think my colleagues are approaching it in good faith, and with a willingness to try to resolve the issues.”

During the June 6 committee hearing, Chandler  asked if the legislature would be mandating that the judicial branch set up these assisted outpatient treatment programs.  Agajanian said the proposal breaks up the areas for the treatment programs based on the judicial boundaries of the state court system because those are smaller than regional boundaries and that would make it easier for an officer to take an individual suffering mental health problems to treatment rather than to jail.  Agajanian also said the court would have a memorandum of understanding with the county and either Medicaid, private insurance or indigent funds would pay for the treatment.

NO TREATMENT FACILITIES MAKES IT COMPLICATED

Chandler said the Assisted Outpatient Treatment measure expanding the program and allowing involuntary treatment for people with mental illness is by far the most complex measure.  She noted the original law took three years to pass, and now Governor Lujan Grishma is asking state lawmakers to make significant changes to the law in just a few weeks.  She noted there is also the looming issue when it comes to behavioral health treatment in New Mexico itself.

Representative Chandler said this:

“[The legislation] is aimed at providing an avenue for people who are concerned about individuals with serious mental illness. … I believe the governor is interested in maybe loosening it up a little bit, so that it will be easier to encourage them and require them to get treatment. It’s not a voluntary program, it is requiring these individuals who meet the criteria to get treatment. … The concern of many of us, me included, is that we can set up these laws, you know, we can work very hard to make the best possible law that we can. But if there aren’t the behavioral health resources and professionals to assist these people, it’s all for naught.”

Chandler said state lawmakers seems to understand the governor’s motivations to expand behavioral health resources, and they are giving it their best effort, but she’s not fully confident it’ll get done during the special session. She said this:

“I would hate to think there would be no bills, but there certainly is that possibility. …  I don’t think it will be, you know, all the time will be wasted, because I think we’ll have some good discussions that will lay the groundwork for the 60 day.”

Chandler said the committee will meet again at least twice before the special session begins.

https://www.kob.com/new-mexico/legislators-prepare-to-tackle-complex-public-safety-proposals-during-special-session/

MENTAL HEALTH COURT

It was in 2007, a full 9 years before the Assisted Outpatient Treatment was created, that the Second Judicial Court located in Bernalillo County established the states only specialized Mental Health Court (MHC).  It is a state-certified specialty treatment court program specifically for individuals whose involvement with the legal system is directly related to an untreated or un-stabilized mental health disorder, indicating a clear need for intervention, treatment and support. The program serves individuals charged and/or convicted of felony level charges within Bernalillo County.

Mission And Goal Of Mental Health Court 

The Mission and Goal of the Mental Health Court are very straight forward:

Engage individuals with serious mental health diagnosis who are involved in the criminal system. The program strives to improve one’s quality of life through treatment, linkage to community resources, specialized supervision and extensive supportive measures.

The overall goal of the MHC program is to minimize and/or eliminate involvement with the criminal justice system while improving one’s overall mental health and quality of living.

Focus of Mental Health Court

The Mental Health Court has an overall focus on assisting with improving participants’ quality of life, appropriate treatment services and discontinuing involvement with the criminal justice system.  The program includes both pre and post plea tracks. The program serves individuals at high levels of risk and need, as assessed. The program duration typically ranges from 18-24 credit earned months. Time in the program is dependent on the severity of risk and need, level of participation and overall progression through the program.

The Mental Health Court (MHC) team members take into special consideration that participants typically have extensive trauma histories, limited support systems and a history of substance abuse, mental health and co-occurring disorders. In addition, participants often lack basic resources such as housing, education and/or employment.  In an effort to meet the individualized needs of each participant, MHC provides intensive clinical case management, individual, group, and family treatment services, housing, academic and vocational support through community service providers.

The services provided are unique to the person and are identified through individualized assessments and treatment planning. Each participant is given ample opportunity to receive the needed services to develop the life skills needed to live a life that is substance and criminal justice free.

The program is 100% voluntary, and is an alternative to the standard judicial process. The courts current capacity is 35.  The recidivism rate from September 1, 9/1/2017 to 1/1/2023 is  5.5% with a success rate of 94.5%

Pre-Adjudication, Post-Adjudication

Program referrals are accepted from attorneys, judges, treatment providers, community agencies, family members and from individuals involved in the justice system that are interested in participating in jail diversion programs, as an alternative to traditional court processes.

The MHC program accepts both pre-adjudication and post-adjudication referrals:

Pre-Adjudication: Participants can screen for the program pre-adjudication upon a referral to determine eligibility.

Post-Adjudication: Participants enter the program upon the filing of a formal plea agreement or upon a trial conviction. Sentencing is completed upon graduation of the program. Participants are advised appropriately of the possible sentence and penalties they may face, should termination or a voluntary withdrawal occur.

Eligibility For Mental Health Court

There are 4 major eligibility criteria to for the court:

1. MHC accepts individuals with a Serious Mental Health Illness (SMI) as a primary diagnosis.
2. Participants must have current felony charges-pending in Bernalillo County.
3. Participants must have identifiable substance abuse, mental health and/or social service needs, and be willing to participate in treatment for the duration of the program. Treatment services may include psychiatric evaluation, medication management, substance abuse individual and/or group counseling, and other behavioral treatment services as recommended.
4. Participants are not excluded from participation in MHC due to lack of residence and/ or stable residence.

All referrals are reviewed and considered on a case-by-case basis and a decision is made if a person is disqualified.

Disqualification Criteria For Mental Health Court 

There are 5 areas where a person can be disqualified from court participation:

1. Individuals who have pending charges or who have been convicted of capital offenses and/or sex offenses are disqualified.
2. Individuals who have been found incompetent, or competency is pending and/or do not have the cognitive capacity to participate in the program are disqualified.
3. Individuals who do not engage in completing clinical assessments and who stop showing up for program requirements are disqualified.
4. Individuals unwilling to follow treatment recommendations (e.g. medication management, counseling, case management services), are disqualified.
5. Individuals with cognitive impairment or learning disabilities that prohibit the ability to advance through the program are disqualified.

Service Delivery For Mental Health Court 

Community treatment and case management is provided by many entities in the community. Referrals for clients are based on need and agency availability. Participants complete a therapeutic assessment and develop an individualized treatment plan that focuses on identifying strengths and addressing needs. Services are strength-based and client centered for individuals who are challenged by substance abuse and co-occurring disorders and/or are deemed high-risk to reoffend in the community. Clients are ideally engaged in MHC for a period of 18 to 24 (credit-earned) months by transitioning through four phases, with an ongoing relationship of care in the areas of treatment, case management, housing, medication, stability, job readiness, parenting, and educational referrals.

The link to the quoted source is here:

https://seconddistrictcourt.nmcourts.gov/home/programs-specialty-courts/pre-trial-services/jsdp-programs/mental-health-court/

CIVIL MENTAL HEALTH COMMITMENT HEARINGS

The are laws on that books that deal with when and under what circumstances formal civil commitment hearings can be initiated for 3-day, 7-day and even 30-day observation and diagnostic evaluations for the mentally ill and the drug addicted. These time frames to allow treatment can be expanded to allow for far more time, perhaps 6 months to a year or even two years and could be made mandatory.  The civil commitment deals with those who are a danger to themselves and others.  The law also  provides that the District Attorney can initiate civil mental health commitment actions for evaluations and treatment.

The link to review the applicable New Mexico state statutes NM Statute §43-1-1 (2019), NM Stat § 43-1-1 (2019), NM Stat § 43-1-11 (2020) on civil mental health commitments is here:

https://law.justia.com/codes/new-mexico/2020/chapter-43/article-1/section-43-1-11/#:~:text=An%20interested%20person%20who%20reasonably,grounds%20exist%20to%20commit%2

NEW MEXICO’S CRIMINAL JUSTICE COURT SYSTEM

There are 13 Judicial District Courts in the State of New Mexico that are courts of general jurisdictions that handle both civil and criminal matters for the 33 counties in the State of New Mexico. Each of the 13 Judicial District Courts have primary jurisdiction over one or more counties based on population.

State District Courts are primary courts of jurisdiction over criminal cases, including felonies and misdemeanor cases. State District Courts have jurisdictions over civil matters with disputes of more than $10,000, domestic relations, mental health and civil commitment cases, appeals from administrative agencies, disputes over real estate, contract disputes, tort actions for personal injury.  District Court criminal convictions and criminal matters are appealable to the one New Mexico Court of Appeals and/or the New Mexico Supreme Court.

New Mexico also has a small claims court or Magistrate Court and Metropolitan Court System that are courts of limited jurisdiction that handle civil disputes of up to $10,000 and misdemeanor criminal matters and appeals are to the State District Courts.

An Administrative Office of the Courts (AOC) has been established and is funded by the New Mexico legislature to enable the courts to accomplish their mission by ensuring that the courts have adequate, equitable distributed resources. The AOC ensures that the courts have and use current technology and it provides a statewide human resources system. The AOC is responsible for developing and implementing improved court processes and supporting the courts in their  use.  The AOC ensures sound financial, budgeting and procurement practices in the management of court resources.

https://www.nmcourts.gov/court-administration/administrative-office-of-the-courts-aoc/

SUBSTANCE ABUSE, MENTAL ILLNESS, HOMELESS BIG PART OF CRIMINAL JUSTICE SYSTEM

On May 22, 2023  the NM Legislative Finance Committee (LFC) released a report on the state’s homeless and the affordable housing shortage which included the preliminary estimates of the 2023 Point In Time (PIT) annual homeless count. The “Point in Time” (PIT) survey is conducted once a year to determine how many people experience homelessness on a given night in communities across New Mexico. The PIT count is the official number of homeless reported by communities to the federal Department of Housing and Urban Development (HUD).

According to the LFC Report on Homelessness and Affordable Housing, New Mexico’s homeless numbers increased 48% in 2023 going from upwards of 2,600 people to 3,842. The increase was driven by an increase in the unsheltered count with 780 more people in Albuquerque and 232 more in the rest of the state.  About half the emergency shelter beds available were used indicating overall adequate bed numbers statewide. However, shelter accessibility was reported as significantly lowering utilization rates because some individual emergency shelters are full while others are extremely hard to reach.

According to the LFC report the causes of homelessness points to many risk factors representative of vulnerable situations and populations. The following 7 risk factors for homelessness and housing insecurity were identified:

BEHAVIORAL HEALTH:  Over 1-in-5 adults in New Mexico have a mental illness. Nearly 1 in 5 youths had a major depressive episode in the last year.  New Mexico ranks 29th for adult mental health disorders and 17th youth mental health disorders in the country.

SUBSTANCE ABUSE:  On average, every day five New Mexicans die of alcohol-related causes, and nearly three die from a drug overdose. New Mexico ranks 1st alcohol-related deaths and 2nd  in drug overdose deaths in the country.

POVERTY: Nearly 1-in-5 New Mexicans live below the federal poverty line. New Mexico ranks 3^rd in the country in poverty

LABOR FORCE PARTICIPATION: In 2022, the labor force participation rate in New Mexico was 55%, compared to 62% nationally. New Mexico ranks 4^th in labor force participation.

PHYSICAL HEALTH:  Nearly 1-in-10 adults in New Mexico have multiple chronic health conditions.

DOMESTIC VIOLENCE:  In New Mexico, over 1-in-3 women experience domestic violence in their lifetime. Nearly 6,000 children suffered maltreatment in New Mexico in 2021. New Mexico ranks 26th in the country for domestic violence and 8th for child maltreatment.

INCARCERATION:  New Mexico has a relatively low incarceration rate, with 203 individuals incarcerated per population of 100,000.

According to the LFC report, people experiencing unsheltered homelessness are more likely to exhibit multiple risk factors. These individuals tend to have higher service needs, tend to be more frequent users of community services, such as emergency room visits and inpatient and outpatient treatments, and require more acute care.

The Point In Time data breakdown for the unsheltered for the years 2009 to 2022 reports 46% of the unsheltered suffer from serious mental illness and that 44% of the unsheltered suffer from substance abuse for a staggering 89% combined total.  When it comes to the  homeless in Albuquerque, 30.19% of the homeless  self-reported as having a serious mental illness and  25.5% self-reported as substance abusers.

There is an overlap with homeless suffering both mental illness and substance abuse.  In other words, a whopping 55.69% combined total of those surveyed self-reported as having a serious mental illness or were substance abusers. When it comes to the balance of the state homeless numbers, 43% were identified as adults with serious mental illness and 40% were identified as adults with substance use disorders or a staggering 83% combined figure.

The link to the entire  2023  PIT survey is here:

https://www.nmceh.org/_files/ugd/6737c5_4ecb9ab7114a45dcb25f648c6e0b0a30.pdf

COMMENTARY AND ANALYSIS

It’s very disappointing that the Governor has failed to reach any real consensus with legislative leaders on what needs to be done and what measures should be enacted before the special session she has called.  All five measures Governor Lujan Grisham is proposing for the Special Session are a good start, but in no way come even close to what is actually needed. Three of the measures should be withdrawn.

THREE MEASURES SHOULD BE WITHDRAWN

Three of the Governors measures are ones that can not be consider as a having a real sense of urgency and she should withdraw those measures.  All 3 should be handled in the regular session for the following reasons:

The bill that would strengthen penalties for a felon convicted of possessing a firearm, making the crime a second-degree felony, punishable by a minimum of nine years in prison is one that standing alone will not make that much of a difference.  During the Governors tenure, the legislature has in fact increased criminal penalties of crimes upwards of 6 times.

The bill to prohibit pedestrians from occupying highway medians, on-ramps and exit ramps is an exercise in futility. Such laws are difficult to enforce and law enforcement needs to concentrate on far more serious crime. Albuquerque has enacted such an ordinance, as has other communities, and it goes unenforced as panhandlers and the unhoused continue to occupy medians and on ramps and as the ACLU is saucerful at  challenging the laws in court.

The bill that would require law enforcement agencies to report certain monthly crime incident reports and ballistic information could likely be accomplished by executive orders and does not necessarily need legislation. Better cooperation between law enforcement is what is needed.

SPECIAL SESSION SHOULD CONCENTRATE ON WHAT REALLY MATTERS

Warehousing the mentally ill, drug addicted or the unhoused who are mentally ill or drug addicted in jails for crimes committed is not the answer and does not address treatment. The court’s must be looked to as part of the solution. Governor Michelle Lujan Grisham and the legislature should strengthen and expand the state’s mental health commitment laws coupled with full funding for mental health facilities. The legislature in Special Session should seek to create and  designate a  14^th Judicial District Court  specialty “Mental Health Treatment Court” functioning as outreach and treatment court for the drug addicted and the mentally ill in mandatory  hospital or counseling settings and not involving jail incarceration.

The creation of a new 14^th Judicial District Court designated as a  Mental Health Court  should have 3 separate regional divisions: one located in Albuquerque, one in Las Cruces and one in Las Vegas, New Mexico with the creation of at least 3 District Court Judge positions with 6 year terms.   The Assisted Outpatient Treatment program should be consolidated with the Mental Health Court so as to achieve one singular court with statewide jurisdiction.  The Administrative Offices of the Courts must play  a pivotal role in setting up the new court process, including locating the new Mental Health Treatment Court in existing court houses in all 3 locations.

As has been  pointed out by New Mexico State Representative Christine Chandler, there is a major  need for the construction and staffing of a mental health facilities or hospitals to provide the services needed to the mentally ill or drug addicted. As it stands now, there exists less than adequate facilities where patients can be referred to for civil mental health commitments and treatment.  In other words there is nowhere for people to go or be placed to get the mental health and drug treatment needed. There is glaring need for a behavioral health hospital and drug rehabilitation treatment facilities.  The Bernalillo County Behavioral Health Center and the Las Vegas Mental Health hospital could be expanded to accommodate for court referrals and a new behavioral health facility could be constructed in Las Cruces to handle mental health commitment and treatment.

New Mexico is currently experiencing historical surplus revenues and this past legislative session the legislature had an astonishing $3.6 Billion in surplus revenue. Now is the time to create a statewide Mental Health Court and dedicate funding for the construction of behavioral health hospital and drug rehabilitation treatment facilities the courts can rely upon for referrals.  Creation of a new court system must include funding for District Attorneys and Public Defenders with dedicated personnel resources for the filing and defending of civil mental health commitments as prescribed by law.

A statewide mental health court with mandatory civil commitments will get treatment to those who need it the most, help get the unhoused off the streets and help families with loved ones who resist any mental health treatment.

Links to related blog article are here:

Convening Special Session Of NM Legislator For Public Safety Must Include Expanding Existing Mental Health Court; Create New 14th Judicial District Court With 3 Regional Divisions For Mental Health Commitment Hearings; Build Regional Treatment Facilities And Hospitals For Mandatory Treatment Ordered

ABQ Journal Dinelli Guest Opinion Column: “Lawmakers should set up statewide mental health court”; Related Column: Laws, Statistics, and Resources Needed To Create 14th Judicial District Court For Mental Health Commitment Court

https://www.petedinelli.com/2024/04/17/gov-mlg-to-call-special-session-on-july-18-focus-to-be-public-safety-special-session-should-include-creating-state-wide-mental-health-court-for-civil-mental-health-commitments-to-assist-mentally-il/

 

 

 

City Desk ABQ  is an independent nonprofit newsroom serving and supported by readers and institutions working together to become more informed and better engaged residents of Albuquerque and Bernalillo County. City Desk ABQ is a project of Citizen Media Group which is a 501(c)3 organization. Citizen Media Group is an IRS-recognized 501(c)3 nonprofit organization (EIN 13-4302938) based in Albuquerque, New Mexico. According to its web page “City Desk ABQ  believe [s] local democracy and civic engagement require a strong local press. To support this purpose, [it] supports programs that develop and provide capacity for local journalists to report on the communities where they live.” City Desk ABQ has a policy that allows the republishing of articles by other media outlets. Links for more information on City Desk ABQ can be found in the  postscript below .

CITY DESK ABQ ARTICLE

On June 11, 2024 City Desk ABQ published an alarming report  written by  its staff reporter TIERNA UNRUH-ENOS disclosing that the City’s Inspector General has found that Mayor Tim Keller’s  staff has received preferential treatment and has been give over $52,000 in taxpayer dollars in improper sick leave payouts.   Following is the unedited  article:

City Desk Headline: “Inspector general finds mayor’s staff received preferential treatment, gave over $52,000 in taxpayer dollars in sick leave payouts”

BY TIERNA UNRUH-ENOS, City Desk ABQ, June 11, 2024

Exclusive in City Desk ABQ

“After a monthslong investigation into allegations that the mayor’s staff and top administrators received preferential treatment and sick leave bonuses upon resignation, the city’s inspector general released its findings this week. The report details the investigation into 11 employees, who received a total of more than $52,000 in taxpayer money that the inspector general told the administration it should now try to recover.

On Jan. 4, the Office of Inspector General (OIG) received a complaint alleging violations of the city’s personnel policy and abuse of power by a department director. 

A City Desk ABQ investigation earlier this year raised questions about the city’s use of sick leave bonuses for employees who submitted their resignations. The newly published the OIG report confirms the use of that practice for top city officials. 

The most high-profile recipient of the “special leave” was Sarita Nair, Mayor Tim Keller’s top aide and the city’s chief administrative officer. 

Nair announced her resignation from the city less than four months into Keller’s second term in March 2022. According to city documents and payroll records, Nair physically worked for the city through April 2022. Upon her resignation in April, Nair signed a memo that granted her almost 40 extra days of pay — costing the city more than $33,000 through a process outside of normal city policies. According to the OIG, Nair continued to earn vacation and sick leave through June 2022 and then accrued paid leave from June to August 2022 when she collected her last paycheck, even though she was not physically working at the city. 

The investigation also revealed that on July 1 Nair received a pay raise per the city’s approved budget, despite not physically working for the city. 

Under city policy, employees who resign are compensated for unused vacation leave but the rules for cashing out sick leave are more restrictive. 

Nair is now the state’s secretary of the Workforce Solutions Department.  

City Desk ABQ reached out to Nair for comment but did not hear back as of press time. 

“The City can create exceptions for leave policies, and it is not unusual to do so for senior employees, as the demands of their roles often restrict them from taking large chunks of leave during their service,” Ava Montoya, spokesperson for the Department of Human Resources, told City Desk ABQ.  “We acknowledge the City’s longstanding practice of negotiating vacation and sick leave, and we disagree with the OIG’s subjective opinions. It is noteworthy that the Accountability in Government oversight committee, which oversees the OIG, did not approve the report.”

HOURS LOST, REGAINED

City payroll records reviewed by City Desk ABQ and interviews with city employees also identified additional employees who had received sick leave payments after resigning. According to the OIG report, one of those employees — a department director who oversaw risk management and spoke with City Desk ABQ — was granted a special settlement agreement that restored 500 hours of sick leave she lost when she resigned from her position with Council Services years before. 

According to the OIG, the total cost of that sick leave was over $40,000. The director was put on personal leave in September 2023, through when her resignation went into effect in December. 

Previous investigations by City Desk ABQ revealed that the director who oversaw risk management was one of the city officials who raised concerns about the city’s mishandling of asbestos exposure during the construction of the Gibson Health Hub. She and at least one other official were threatened with reassignment and then quietly placed on sick leave.

The OIG’s investigation also revealed at least two other city administrators who signed settlement agreements for sick leave payouts skirted the law that requires settlements to be approved by the Settlement Advisory Committee, which includes members of the City Council. 

Those settlements amount to more than $17,000 in sick leave bonuses. 

According to the OIG’s investigation, each manager who received a special payout may have also received additional benefits from the extended city-provided insurance and PERA, the state’s retirement fund. 

‘WASTE OF TAXPAYER MONIES’

The OIG’s investigation of the 11 city employees who allegedly received benefits that were not given to other city employees found that the practice creates a perception of preferential treatment, in addition to costing the city and the taxpayer money that would have otherwise not been paid out. 

The OIG found that the violation of the city’s own policies resulted in the city paying out over $52,000 to certain employees in the form of sick leave bonuses. Although the payouts totaled more than $52,000, the OIG was not able to substantiate all claims of abuse. 

The OIG recommended that Nair and at least three other managers pay the city back for their sick leave bonuses. 

Only one employee who is not a top official who had been overpaid has already reimbursed the city for $526.86. 

In a previous investigation released by the inspector general, one other city official who is still currently working for the city, was found to have been given excess leave totaling $12,116. That investigation also recommended the city should calculate the value of all additional benefits given to the official and recoup the cost of those benefits.

In both investigations, the OIG recommended that the city’s Human Resources Department should undergo training on the city’s own policies. 

In response, the [Keller] administration ignored all recommendations and replied that policies allowed them to pay out sick leave for retiring employees. However, only one of the employees named in City Desk ABQ or OIG reports retired and the rest voluntarily resigned.”

DINELLI COMMENTARY AND ANALYSIS

The payment of $52,000 in taxpayer dollars to 11 city hall employees sick leave bonuses, with $30,204 to former Chief Administrative Officer Sarita Nair in the form of sick leave converted to “Paid Leave – Other (PLO)”,  is so very wrong on so many levels and reflects a level of sure hypocrisy by Mayor Tim Keller. It simply does not pass the smell test. It is difficult to see how the practice of converting sick leave to annual leave on a “one for one” hourly basis is not “waste, fraud and abuse” in government, something  Mayor Keller fought against and first made his reputation on combating when he was New Mexico State Auditor.

It cannot be ignored that the two individuals who approved the payment to former Chief Administrative Officer Sarita Nair were Human Resources Department Director Anthony R. Romero and Chief Financial Officer Sanjay Bhakta who  reported directly to then CAO Sarita Nair.  For that reason alone there is little doubt there was a level of undue influence or preferential treatment involved and they would not deny the request from their departing supervisor.  It is painfully obvious that both Human Resource Director Romero and Chief Financial Officer Bhakta simply ignored city personnel rules and regulations governing the payment of sick leave and simply broke personnel rules and regulations by creating a whole new category of “paid leave” in order to give Sarita Nair, and others, a large financial payout they were not entitled to.

Nair with just 313.32 hours of sick leave on the books, knew or should have known that she had not met the minimum amount of sick leave to be cashed out but she asked for it anyway and her subordinates Romero and Bhata made it happen. Sarita Nair  is now the cabinet  Secretary of  the Department of Workforce Solutions and State employment has essentially identical policy when it comes to sick leave not being compensated when any state employ terminates employment.

Chief Administrative Officer Nair was no doubt fully aware that sick leave is lost and not paid when an employee quits and that unused sick leave is not paid out.  Accrued annual leave is totally different and becomes a vested property right upon being earned and must be paid out upon termination.  The underlying philosophy is that sick leave is to be used or it is lost and is not to be accumulated as a benefit to be cashed out upon termination. Nair likely lost all sick leave when she left the State Auditors Office and she likely did not want that to happen again when she left the city.

The blunt truth as was originally reported by CITY DESK ABQ is there is no such thing as “Paid Leave – Other (PLO)” in the city’s personnel rules and regulations and it was essentially made up  by Mayor Keller’s Human Resources Director Anthony Romero and Chief Financial Officer Sanjay Bhakta. In Nair’s case, there was no conversion of accumulated sick leave in excess of 500 hours on the basis of three (3) hours of sick leave to one (1) hour of cash payment. Instead, there was a “one for one” hour conversion greatly inflating the cash payout. It is more likely than not that Mayor Tim Keller was aware of what was being done and  he gave his approval given it was his departing loyalist CAO Sarita Nair that was being paid.

Now that the  City’s Inspector General report has been released and has identified those who  have been improperly cashed out for sick leave, the city needs to make demand for full reimbursement.  The City Attorney should  initiate collection actions against those who have been improperly paid sick leave and seek reimbursement from them.  It’s unacceptable that the Keller Administration has ignored all recommendations and replied that city policies allowed them to pay out sick leave for retiring employees.  Only one of the employees named in City Desk ABQ or OIG reports retired and the rest voluntarily resigned.

If Mayor Tim Keller refuses to instruct the City Attorney to initiate collection and reimbursement actions, the City Council needs to order the City Attorney to take action.

____________________________________________________________

POSCRIPT

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The June 4 New Mexico Primary has come and gone. The unofficial statewide voter turnout was just under 23%, or a fifth of registered voters. A little more than 1 in 5 eligible voters turned in Bernalillo County, a tally slightly lower than the 2022 primary contest.  Low turnout also marked the statewide results where 225,000 New Mexicans voted in the primary election, or about 22% of the state’s 1,011,000 eligible voters.

Democrats turned out in greater numbers than Republicans in Bernalillo County.  About 47,500 Democrats cast primary votes, or about 66% of the total votes cast in the county. Republican voters cast 23,972 votes and Libertarians, 259 votes.  In total, Bernalillo County has about 199,209 registered Democratic voters, 117,889 Republican voters and 5,173 Libertarians, according to the New Mexico Secretary of State’s Office.

All 112 seats in Legislature are on this year’s general election ballot. Members of the state Senate stand for election every four years while House districts are on the ballot every two years. Democrats hold majority control in both chambers. There are 45 Democrats and 25 Republicans in the New Mexico House of Representatives. There are 27 Democrats and 15 Republicans in the New Mexico Senate. The 2025 New Mexico legislature convenes on January 21, 2025 and ends on March 22, 2025.

PROGESSIVE DEMOCRATS PURGE CONSERVATIVE DEMOCRATS

All but 7 Democratic incumbent legislators beat back challengers in the June 4  primary.  Republican voters in southeastern New Mexico ousted 2 recent Republican appointees of Governor  Michelle Lujan Grisham to select their own candidates.

In a final analysis one week after the election, the biggest take away is that progressive democrats purged conservative democrats from the New Mexico legislature.

With the unofficial statewide voter turnout of just under 23%, or a fifth of registered voters, progressives had some potential gains in the House of Representatives.  If the Democratic candidates nominated  can win in the general election, it will result in the state House moving  slightly further  to the left.

DEMOCTATIC PARTY PRIMARY RACES

Three House Democrats from rural areas of New Mexico lost their bids for reelection. Those legislators were Willie Madrid from Chaparral, representing District  53  who lost to Jon Hill  58.06%  to 41.94%; Ambrose Castellano representing District 70’s representing Torrance and San Miguel counties who lost to Anita Gonzales 55.24% to 44.76% and  Harry Garcia of Grants, representing District 69 who lost to Michelle Abeyta 56.76% to  34.94%.  In the 2024 New Mexico legislative session, all 3 Democratic Representative voted against Senate Bill 3  which would have created the Paid Family Medical Leave Act. The bill died on the House floor on a 34 YES vote to a 36 NO vote.

Other House incumbents who voted NO on the  Paid Family Medical Leave Act legislation earlier this year survived their primary challenges. District 27 Democratic State Representative  Marian Matthews of Albuquerque’s Northeast Heights overcame a bid by  Progressive Democrat  candidate Greg Seely.  Mathews secured  56% of the vote compared to  Seely’s 44% in the Democratic primary. Matthews faces Republican Gregory Gallegos in the general election.

Democrat State Representative  Patricia Lundstrom  from District 9 successfully and forcefully fended off two challengers, taking 62% of the vote.  In the District 9 race , Christopher Hudson garnered 29%, and Arval McCabe had 9% percent. Lundstrom has no general election opposition. Lundstrom also voted against the Paid Family Medical Leave Act.

In the State Senate District  26  Democratic Primary, Incumbent Moderate Democrat Antonio “Moe” Maestas prevailed over Progressive Democrat Julie Radoslovich  in a highly contentious race 59.24% to  40.76%. There is no Republican running in the general election so Maestas returns to the Senate for a 4 year term.

Long time Democratic State Senator Daniel Ivy-Soto, District 15, lost in a major landslide to new newcomer and progressive Heather Berghmans 80% to 20%. Ivy-Soto for the past 2 years was plagued with accusations of sexual harassment.  Even though the ethics charges were dismissed and not proved, Ivy-Soto was pummeled with sustained attacks on his character. Berghmans will faces Republican Craig Degenhardt in the general election.

Long time Democratic Progressive incumbent State Senator Bill O’Neill, whose District 13 boundaries in Albuquerque were changed under redistricting, lost to the more progressive former Albuquerque City Councilor and former Bernalillo County Commissioner Debbie O’Malley by fewer than 200 votes.  O’Malley secured 52% of the vote to O’Niell’s 48% of the vote.

In Albuquerque Senate District 21, incumbent Conservative Republican Mark Moores did not seek reelection. Progressive Democrat Athena Ann Christodoulou, who has run for the position 3 times before, prevailed over Moderate Democrat Philip A. Snedeker 76.09%  to 23.91%  In the Republican Primary for Senate District 21, Nicole Tobiassen garnered 43.96% prevailed over  Republicans Michael Wiener who garnered 30.45%  and  John C. Morton who garnered  25.58%. Senate District is considered a Republican leaning district and  conservative Republican Nicole Tobiassen is considered to have the distinct advantage over Progressive Democrat Athena Ann Christodoulou.

Native American advocate and Democrat Angel Charley beat out former State Senator Clemente Sanchez for Senate District 30 with 64% to 37% of the vote. Redistricting played a key role in this race. The Republican incumbent, Joshua Sanchez, decided to run for District 29 instead, and some Native communities like Isleta Pueblo are now part of District 30. Charley’s opponent, Sanchez, served eight years in the legislature until 2020 when he lost to progressives in the primaries.

REPUBLICAN PARTY PRIMARY 

On the Republican side, Greg Nibert, a Roswell attorney and former state representative, lost to rancher Patrick Henry Boone IV by 101 votes. In the three-way race, Larry Marker received 15% of the vote, compared with 41% for Nibert and Boone garnering 43%.  Nibert  was appointed by Governor Michelle Lujan Grisham  in January to fill the District 27 Senate seat vacated with the retirement of Republican Senator Stuart Ingle. Boone has no Democratic opposition in the general election.

Republican Larry Scott, who vacated his House seat to run for the state Senate this year, handily won over incumbent Steven McCutcheon in District 42. McCutcheon, a Carlsbad rancher and businessman, was appointed by Lujan Grisham to the seat in 2023.   Scott secured 61% of the vote compared with McCutcheon’s 39% of the vote.  Scott has no Democratic opposition in the general election.

Catherine Jeanette Cullen won the three-way Republican primary for House District 57 in Rio Rancho. She received 37% of the vote compared to John D’Antonio Jr. with 33% and Corrine Rios receiving 29%. They were vying for the open seat left by the resignation of Republican Rep. Jason Harper. Cullen now faces Democrat Michelle Sandoval in the general election.

In House District 31 in the far ABQ NE Heights, Nicole Chavez took the GOP nomination for the only Bernalillo county Republican House seat. But she is expected to get a strong Dem challenge in November.

Sandoval Republican County Commissioner Jay Block, an Trump Republican, prevailed over  former state Senator Candace Gould 68% to 32%. Block is expected to prevail over a Democratic  rival in the Republican leaning seat in November.

https://www.abqjournal.com/election/primary-is-over-who-won-who-lost-and-why-and-whats-next/article_66b2a59e-2375-11ef-a246-d3a37d4ec3e8.html#tncms-source=home-featured-7-block

DEMOCRATIC SPEAKER OF HOUSE JAVIER MARTINEZ DECLARES “OUR DIVERSITY IS OUR STRENGTH, OUR UNITY IS OUR POWER”

On June 10, the Albuquerque Journal published the following guest opinion column written by New Mexico Speaker of the House Javier Martinez regarding the Democratic Party primary election and the divide between “progressives” and “moderates”.  Below  is the guest column in full followed by the link:

“Throughout the recent primary election, we heard a lot about the supposed growing divide between “progressives” and “moderates” in New Mexico. While there certainly can be substantive policy differences among Democrats, we have to remember that there’s far more that unites us than divides us, especially since there is so much on the line this November.

The reality is that the robust competition in our primary actually demonstrates that New Mexico’s Democratic Party remains a “big tent.” That is certainly true in our House of Representatives, where our Democratic caucus is one of the most diverse in the country. As we prepare to welcome new faces and say goodbye to a few familiar ones, I am reminded of the saying: “Our diversity is our strength, our unity is our power.”

Your New Mexico House Democrats come from a wide variety of backgrounds, including educators, working parents, veterans, small business owners, Indigenous leaders, and immigrants. The majority of our Democratic representatives are women and people of color. Our lived experiences inform our perspectives as lawmakers and how we show up for our communities.

When we disagree with one another, we don’t shy away from difficult conversations. We work to find common ground without compromising our values. We understand that while we may sometimes have different views on the specific policies in front of us, we’re all united by a set of shared beliefs that guide our decisions in the Roundhouse.

We believe that hardworking New Mexicans should be able to get ahead and that all of our children deserve the best start possible. We believe our fundamental freedoms and rights are worth safeguarding. We believe in protecting our Land of Enchantment for generations to come and creating a sustainable economic future so that our children and grandchildren will choose to raise their own families in New Mexico.

Lastly, we believe that a community’s ability to elect the people who will serve them best is fundamental to our democracy.

New Mexico voters understand that elections have real, meaningful consequences on our lives. The 2016 election of former President Donald Trump, for example, resulted in tax cuts to benefit the wealthiest Americans on the backs of working families and the upending of federal protections for abortion, civil rights, and access to the ballot box.

On the other hand, electing a Democratic majority in the Roundhouse here in New Mexico allowed us to cut taxes for working families, safeguard reproductive freedom, and protect fair and open access to the ballot for all eligible New Mexicans.

This November we can choose the future we want for our state: Do we want to continue building a brighter, more equitable, welcoming, and inclusive New Mexico? Or, do we want to roll back our hard-won rights and freedoms and perpetuate the kinds of unequal systems that make it difficult for hard-working New Mexicans to get ahead?

Whatever our differences, New Mexico’s Democrats share a commitment to keep our state moving forward, not backward. In the coming months and weeks, we invite anyone who shares that vision to come under our big tent.”

https://www.abqjournal.com/opinion/opinion-democrats-supposed-division-will-be-healed-by-shared-beliefs/article_fb6a2248-2375-11ef-ae03-5b191914434b.html

COMMENTARY AND ANALYSIS

Despite being a very low voter turn out, election night in the Democratic primary was clearly a major victory for Progressives within the Democratic Party. The hotly contested primary election campaigns focused on incumbent moderate to conservative Democrats seeking legislative posts who were opposed by far more  progressives candidates.

The 2024 primary saw progressives defeating incumbent State Senator Daniel Ivey-Soto and ousting conservative House Democrats Ambrose Castellano, Willie Madrid and Harry Garcia, all while bolstering turnout among women voters.  Ambrose Castellano was defeated 55% to 45%  by Governor Lujan Grisham  endorsed Anita Gonzales in District 70 in the Las Vegas area, and in House District 69  incumbent  Representative Harry Garcia was beaten  in a 3 way race to Michelle Abeyta, a lawyer and Navajo nation member. Representative Willie Madrid of House District 53 near Las Cruces was defeated by progressive Democrat Dr. Jon Hill, a lifelong educator. Long time State Senator Bill O’Neill was unable to fend off and aggressive campaign and lost to progressive and former Bernalillo County  Commissioner Debbie O’Malley 52% to 48%.

https://www.abqjournal.com/election/new-faces-looking-to-take-legislative-seats-following-primary-wins/article_5baff5b0-22f4-11ef-a9c1-7bd674cd2504.html

Notwithstanding, there were two major losses for Progressive Democrats. Albuquerque Democrat State Representative Marian Matthews came under severe attack from Progressive Greg Seeley for voting against the Paid Family Medical Leave Act but Matthews defended her vote and defended her seat by defeating Seeley with 56% of the vote.  Although Matthews represents a conservative leaning district, she does stick with the Democratic party on most votes.   Another defeat for progressives was State Senator Moe Maestas who successfully beat an aggressive challenge  by  the far more Progressive Julie Radoslovich beating her 59.24%  to  40.76%.

The primary election results will likely  decide the politics of next year’s 60-day legislative session which will convene in January 21,  2025.  With the  election of more Progressive Democrat candidates over more Conservative to Moderate Democrats there will be the passage Legislative bills that failed to win enough votes in the past. The best example is the Paid Family Medical Leave Act. New Mexico’s Democratic-led House of Representatives narrowly rejected a bill during the 2024 legislative session that would have guaranteed paid time off for workers to cope with serious illnesses or care for newborns and loved ones, amid concern about companies’ opposition in an election year. The proposal failed 34-36 on a final vote. Eleven Democrats in the House voted with Republicans to kill the measure. Watch the legislation reemerge in the 2025 session and  be enacted.

Speaker of the House Speaker  Javier Martinez is to be commended for the leadership he has exerted through out his time as Speaker and  can be proud of what he has  been able to accomplished.  He is commended for reminding all Democrats what is truly at stake in the 2024 election.

The link to a related blog article is here:

2024 New Mexico Primary Election Results For Bernalillo County,  State Senate and House Races And Santa Fe DA Race; Low Voter Turn Out

 

On April 17, New Mexico Gov. Michelle Lujan Grisham announced she was calling state legislators into a Special Session starting July 18 with a  focus on addressing public safety proposals. The governor said she expected the session to wrap up within several days. She decided to convene the session to allow lawmakers to finish what they started during the regular 30-day session.  The upcoming special legislative session will be the fifth special session the governor has called while in office.

The Governor’s news release at the time said in part:

“While we made some progress toward a safer New Mexico during the 30-day day session, we agree that we must do more. The special session in July will enable us to deliver additional statutory changes that reduce the danger and risk New Mexico communities face every day. The best proposals for making our state safer will be under consideration, and I welcome input from my colleagues in the legislature.”

https://www.governor.state.nm.us/2024/04/17/gov-lujan-grisham-announces-special-session-starting-july-18/

Senate Majority Leader Peter Wirth said at the time a special session would give lawmakers more time to work through details on complex public safety bills. Wirth said this in a press release:

“The Governor’s announced date for a special session gives us enough time to find consensus public safety legislation that can pass both chambers. Discussions between the Governor and legislative leadership to date have focused on bills from the recent 30-day session that required more work due to their legal complexity, namely: criminal competency, felon in possession of a firearm and panhandling. We have agreed additional gun safety and pre-trial detention bills will wait for the sixty-day session in January. In the next several months, we will also focus on finding ways to expand the critical safety net of mental health and treatment services that are vital to the success of the legislation that will be considered.”

Sen. Joe Cervantes, D-Las Cruces, who chairs the Senate Judiciary Committee, said he believes the special session should focus on the “absence of resources to enforce existing law. … The fundamental problem with crime in Albuquerque is not a lack of laws. It’s lack of accountability and enforcement of those laws.”  Cervantes said he hoped the governor would be receptive to initiatives from the Legislature before the special session “and that my colleagues will step up to consider some changes in law.  It’s hard to imagine that you can accomplish in a matter of a couple of days the work that it’s going to take to restore public trust in public safety in Albuquerque and elsewhere.”

The links to quoted news sources relied upon are here:

https://www.krqe.com/news/politics-government/governor-lujan-grisham-calls-for-special-session-in-july/

https://www.kob.com/new-mexico/new-mexico-governor-calls-special-session-on-public-safety/

https://www.koat.com/article/governor-announces-special-session-public-safety/60524385

https://www.abqjournal.com/news/special-legislative-session-on-crime-slated-for-july/article_e0033e54-fcce-11ee-a2cc-972f1ab7c84e.html

GOVERNOR ANNOUNCES FIVE PUBLIC SAFETY MEASURES FOR JULY 18 SPECIAL SESSION

On June 6, Holly Agajanian, the Governor’s Chief General Counsel, outlined the bills to the Court, Corrections and Justice Interim Committee the governor’s office will back during the upcoming special session Governor Michelle Lujan Grisham will ask lawmakers to pass 5 public-safety measures during the July 18 special session of the New Mexico legislature.

The governor’s spokeswoman, Jodi McGinnis Porter, released a “discussion draft” of  4 of the 5  bills and said the governor would “welcome input” from legislators.  Porter said in a statement:

“These five legislative proposals are designed to address the pressing public safety issues that our communities face every day, reducing danger and risk for all New Mexicans.”

The 5 public safety measures provide as follows:

The first bill  would make changes to the state’s criminal competency law. The bill, which did not make it very far in the previous legislative session, is at the top of the special session agenda. The bill would send criminal defendants who are found incompetent to stand trial to a mental health or behavioral health treatment program. Supporters say there are far too many suspects who are arrested, deemed incompetent to stand trial, and then released back on the streets only to commit more crimes. It’s a bill designed to address in part the  so-called “revolving door” where defendants are arrested only to be found incompetent to stand trial and then released. The legislation is intended to strengthen a 2016 law and a program originally signed into law by former Governor Susana Martinez that allows district judges to order involuntary treatment for people with severe mental illness who have frequent brushes with law enforcement. It involves a program called the “Assisted Outpatient Treatment” (AOT).

The second bill  would  expand a program that mandates involuntary treatment for people with mental illness. The bill involves civil mental heath commitments where there are no criminal charges involved.   The bill is an assisted out-patient treatment bill proposal that would allow a judge to mandate out-patient treatment, including involuntarily commitments. It would  allow individuals, whether first responders, family members or community members who work with mentally ill individuals on the streets to request involuntary out-patient treatment.

The third bill  would strengthen penalties for a felon convicted of possessing a firearm, making the crime a second-degree felony, punishable by a minimum of 9 years in prison.

The fourth bill  would prohibit pedestrians from occupying highway medians, on-ramps and exit ramps.  The bill is intended to address individuals loitering on street medians despite a similar bill receiving pushback in the 2024 legislature over its constitutionality. It failed to pass.  The new bill would contain language that says that in places where a speed limit is more than 30 miles per hour, individuals may not loiter on a median that is 36 inches or less. The bill is similar to a city ordinance enacted by the Albuquerque City Council last year.

The fifth bill  would require law enforcement agencies to report certain monthly crime incident reports and ballistic information.

Three of the five measures are leftovers  from the 2024 legislative session. The  3  “leftover”  measures are median safety bill that is often described as a panhandling ban, increasing penalties for felons caught with firearms, and new data collection and sharing requirements for law enforcement agencies.  It is the two new proposals on mental health commitments that are complicated and where it appears there is no consensus arrived at by legislators. One of them is reworking the state’s criminal competency laws, ideally making it easier for the courts to mandate certain suspects into behavioral health treatments. The other is an assisted outpatient treatment bill.

It costs taxpayers roughly $50,000 a day to bring lawmakers back for a special session. The goal any Special Session is to get in and out as quickly as possible. But lawmakers say the governor’s public safety agenda includes some extremely complicated proposals and they need as much time as they can get to discuss them.

HOUSE COURTS, CORRECTIONS AND JUSTICE COMMITTEE

On June 4, the AOT involuntary treatment for people program dominated the Court, Corrections and Justice Interim Committee  discussion. Holly Agajanian, the Governor’s Chief General Counsel told committee members that the law and the AOT program needs to be extended statewide and have broader eligibility. Agajanian told committee members this:

“The question then becomes, ‘How do we do this? …. How do we have AOT everywhere? Because that’s what we need. And that’s what this bill has.”

Some lawmakers questioned the need for a special session to make changes to a program originally signed into law by former Gov. Susana Martinez in 2016. Representative Alan Martinez, R-Bernalillo, asked:

“Why do we need this immediately if the AOT is already on the books and jurisdictions can implement that today? …  When we can come back in the [upcoming 2025] 60-day we can take care of whatever changes to the law we need to do.”

Agajanian said changes to the law proposed by Lujan Grisham will mandate implementation of the program and as proposed would require all of New Mexico’s thirteen  judicial districts to institute AOT program by July 1, 2026. Agajanian said this:

“Even though jurisdictions are already statutorily allowed to implement these programs, they aren’t doing it. … This is something that is going to take so long to implement.  … [By waiting until next year]  we will lose time and we will lose the lives of New Mexicans.”

In addition, the proposed bill will expand the number of people eligible for the program.  Agajanian said this:

“I think you’re going to end up being able to provide services for more folks than you had before.”

ASSISTED OUTPATIENT TREATMENT PROGRAM

The court-supervised Assisted Outpatient Treatment program is intended for those who have a history of arrests and hospitalizations and who do not or who are unlikely to voluntarily adhere to prescribed treatments.  The law passed in 2016 allows for State District Court Judges to order people into mandatory treatment programs, which includes medication, therapy or drug testing. Participants have to be at least 18 years old, have a mental illness diagnosis and have a history of not following through with treatments ordered. Under the original law passed, cities and counties have to opt into the program to participate.

Jamie Michael, the county’s Health and Human Services director, told  the committee  that  only the 3rd Judicial District in Doña Ana County has a functioning AOT program, which was initiated in 2016 under a federal grant.  The program serves about 40 people a year, she estimated.

The 2nd Judicial District in Bernalillo County also launched a pilot AOT program in November 2017. Leaders with the city, county, courts and University of New Mexico Hospital announced the program that year.  Witnesses told the House Courts, Corrections and Justice Committee lawmakers that the Bernalillo County program is no longer in effect.

State Representative Christine Chandler, who Chairs  the House Courts, Corrections and Justice Committee said this:

“I think maybe we should try to get the Bernalillo County people in for the next meeting, because I want to know why it fell apart in Bernalillo County.”

https://www.abqjournal.com/news/special-session-will-focus-on-mental-health-treatment/article_87510b56-246a-11ef-8f8b-67d64ab06e18.html#tncms-source=home-featured-7-block

PUSHBACK FROM LEGISLATORS

Both Democrats and Republicans asked why a special session was needed to be called for legislation that they believed could or should be addressed during a regular session of the legislature. Even some Democrats had harsh  words for Governor Lujan Grisham’s proposal.

Mesilla Democrat State Representative Micaela Lara Cadena said it was hard for her not to feel that the Governor’s proposals are more about “political wins.”  Cadena said this:

“I was part of tabling or not passing bills my good friend Representative (Bill) Rehm brought. We put them in the dumpster and now we’re slapping some Democrat’s names on them and plagiarizing Representative Rehm here….Folks have been trying to have these conversations for a long time now and very quickly in a short summer we have to go because New Mexico is in crisis?”

Espanola Republican Representative Alan Martinez asked why the state must spend thousands of dollars a day for a special session. Martinez asked:

“Why not say, you work on a pilot project, we come back in January?”

Holly Agajanian, the Governor’s Chief General Counsel said the reason for a special session now is because New Mexico is in a crisis in terms of both mental health and violent crime. She said recent reports show that the state has higher than average mental health problems and that New Mexico  ranks 43^rd  in the nation for beds available for individuals with mental health issues. She said New Mexico led the nation for violent crime in 2022. Agajanian said this:

“Against this backdrop the governor has called this special session to deal with this crisis that has come to grip our state.” 

Several members of the committee expressed concern about the portion of the assisted out-patient treatment program proposal that would allow individuals who have a relationship with the individual suffering mental health problems to seek a process by which the individual could be placed into treatment involuntarily.

Albuquerque Democrat State Senator Antoinette Sedillo Lopez, a licensed New Mexico attorney, said she was worried the mandatory mental health commitment law changes could violate an individual’s constitutional rights.

Albuquerque Democrat State Senator Katy Duhigg  said she didn’t feel she had been presented with “great data that this is a solution that solves this problem and that is data I’d want to see before passing this legislation.” Duhigg said she found data from other countries with a quick online search that suggests that involuntary mental health treatment could lead to worse outcomes, rather than better ones. Duhigg asked why the state needed legislative changes in order to establish the assisted outpatient treatment program in every county. In response The Governor’s Chief General Counsel Holly Agajanian said this in response:

“I have to go back to the fact that I don’t suggest that they don’t have the authority to do it on their own. I’m suggesting, it hasn’t been done. We need to require it.”

Courts, Corrections and Justice Chair Christine Chandler, D-Los Alamos, said she was confused over the logistics. She asked if the legislature would be mandating that the judicial branch set up these assisted outpatient treatment programs.  Agajanian said the proposal breaks up the areas for the treatment programs based on the judicial boundaries of the state court system because those are smaller than regional boundaries and that would make it easier for an officer to take an individual suffering mental health problems to treatment rather than to jail. Agajanian also said the court would have a memorandum of understanding with the county and either Medicaid, private insurance or indigent funds would pay for the treatment.

Milan Democrat State Representative Eliseo Lee Alcon expressed support for holding a special session and said this:

“Nobody wants to get something done. The sky is falling if we go into special session…Who knows what’s happening in Santa Fe or Las Vegas or Grant or Milan. We have no idea if anybody is getting treated or helped. I honestly do not think the sky is going to fall if we do something about this problem,”

Albuquerque area Republican State Representative Bill Rehm said he has introduced a bill for 15 years prohibiting a felon in possession of a firearm. He said during this past session, that bill passed the House but never made it through the Senate Judiciary Committee. Rehm also said he is an expert witness in traffic crash reintroduction and that he’d like to work with the governor’s office on both the bill prohibiting a felon in possession of a firearm and on the no loitering on a median proposed legislation. Rehm retires at the end of this term.

Duhigg asked if Lujan Grisham would consider adding “serious sanctions” to managed care organizations to provide mental health treatment. Agajanian responded by saying  that was “music to my ears” and said she thought Lujan Grisham would be amenable to such a proposal.

The link to quoted and relied upon news source material is here:

https://nmpoliticalreport.com/nmleg/both-republicans-and-democrats-skeptical-of-guvs-proposals-for-special-session/

NO TREATMENT FACILITIES  MAKES IT COMPLICATED

New Mexico State Representative Christine Chandler, District 23 represents Los Alamos, Sandoval & Santa Fe counties. She chairs the House Courts, Corrections and Justice Committee. Representative Chandler said this about the Special Session:

“I wouldn’t call it optimism, I think maybe you might say people are hopeful we’ll have a productive session. …. You’ll see from our agenda that we’re definitely putting in the work. I am approaching it, and I think my colleagues are approaching it in good faith, and with a willingness to try to resolve the issues.”

Chandler said the Assisted Outpatient Treatment measure expanding the program and allowing involuntary treatment for people with mental illness is by far the most complex measure.  She noted the original law took three years to pass, and now Governor Lujan Grishma is asking state lawmakers to make significant changes to the law in just a few weeks.  She noted there is also the looming issue when it comes to behavioral health treatment in New Mexico itself.

Representative Chandler said this:

“[The legislation] is aimed at providing an avenue for people who are concerned about individuals with serious mental illness. … I believe the governor is interested in maybe loosening it up a little bit, so that it will be easier to encourage them and require them to get treatment. It’s not a voluntary program, it is requiring these individuals who meet the criteria to get treatment. … The concern of many of us, me included, is that we can set up these laws, you know, we can work very hard to make the best possible law that we can. But if there aren’t the behavioral health resources and professionals to assist these people, it’s all for naught.”

Chandler said state lawmakers seems to understand the governor’s motivations to expand behavioral health resources, and they are giving it their best effort, but she’s not fully confident it’ll get done during the special session. She said this:

“I would hate to think there would be no bills, but there certainly is that possibility. …  I don’t think it will be, you know, all the time will be wasted, because I think we’ll have some good discussions that will lay the groundwork for the 60 day.”

Chandler said the committee will meet again at least twice before the special session begins.

https://www.kob.com/new-mexico/legislators-prepare-to-tackle-complex-public-safety-proposals-during-special-session/

MENTAL HEALTH COURT

It was in 2007 that the Second Judicial Court located in Bernalillo County established the states only specialized Mental Health Court (MHC).  It is a state-certified specialty treatment court program specifically for individuals whose involvement with the legal system is directly related to an untreated or unstabilized mental health disorder, indicating a clear need for intervention, treatment and support. The program serves individuals charged and/or convicted of felony level charges within Bernalillo County.

Mission And Goal Of Mental Health Court 

The Mission and Goal of the Mental Health Court are very straight forward:

Engage individuals with serious mental health diagnosis who are involved in the criminal system. The program strives to improve one’s quality of life through treatment, linkage to community resources, specialized supervision and extensive supportive measures.

The overall goal of the MHC program is to minimize and/or eliminate involvement with the criminal justice system while improving one’s overall mental health and quality of living.

Focus of Mental Health Court

The Mental Health Court has an overall focus on assisting with improving participants’ quality of life, appropriate treatment services and discontinuing involvement with the criminal justice system.  The program includes both pre and post plea tracks. The program serves individuals at high levels of risk and need, as assessed. The program duration typically ranges from 18-24 credit earned months. Time in the program is dependent on the severity of risk and need, level of participation and overall progression through the program.

The Mental Health Court (MHC) team members take into special consideration that participants typically have extensive trauma histories, limited support systems and a history of substance abuse, mental health and co-occurring disorders. In addition, participants often lack basic resources such as housing, education and/or employment.  In an effort to meet the individualized needs of each participant, MHC provides intensive clinical case management, individual, group, and family treatment services, housing, academic and vocational support through community service providers.

The services provided are unique to the person and are identified through individualized assessments and treatment planning. Each participant is given ample opportunity to receive the needed services to develop the life skills needed to live a life that is substance and criminal justice free.

The program is 100% voluntary, and is an alternative to the standard judicial process. The courts current capacity is 35.  The recidivism rate from September 1, 9/1/2017 to 1/1/2023 is  5.5% with a success rate of 94.5%

Pre-Adjudication, Post-Adjudication

Program referrals are accepted from attorneys, judges, treatment providers, community agencies, family members and from individuals involved in the justice system that are interested in participating in jail diversion programs, as an alternative to traditional court processes.

The MHC program accepts both pre-adjudication and post-adjudication referrals:

Pre-Adjudication: Participants can screen for the program pre-adjudication upon a referral to determine eligibility.

Post-Adjudication: Participants enter the program upon the filing of a formal plea agreement or upon a trial conviction. Sentencing is completed upon graduation of the program. Participants are advised appropriately of the possible sentence and penalties they may face, should termination or a voluntary withdrawal occur.

Eligibility For Mental Health Court

There are 4 major eligibility criteria to for the court:

1. MHC accepts individuals with a Serious Mental Health Illness (SMI) as a primary diagnosis.
2. Participants must have current felony charges-pending in Bernalillo County.
3. Participants must have identifiable substance abuse, mental health and/or social service needs, and be willing to participate in treatment for the duration of the program. Treatment services may include psychiatric evaluation, medication management, substance abuse individual and/or group counseling, and other behavioral treatment services as recommended.
4. Participants are not excluded from participation in MHC due to lack of residence and/ or stable residence.

All referrals are reviewed and considered on a case-by-case basis and a decision is made if a person is disqualified.

Disqualification Criteria For Mental Health Court 

There are 5 areas where a person can be disqualified from court participation:

1. Individuals who have pending charges or who have been convicted of capital offenses and/or sex offenses are disqualified.
2. Individuals who have been found incompetent, or competency is pending and/or do not have the cognitive capacity to participate in the program are disqualified.
3. Individuals who do not engage in completing clinical assessments and who stop showing up for program requirements are disqualified.
4. Individuals unwilling to follow treatment recommendations (e.g. medication management, counseling, case management services), are disqualified.
5. Individuals with cognitive impairment or learning disabilities that prohibit the ability to advance through the program are disqualified.

Service Delivery For Mental Health Court 

Community treatment and case management is provided by many entities in the community. Referrals for clients are based on need and agency availability. Participants complete a therapeutic assessment and develop an individualized treatment plan that focuses on identifying strengths and addressing needs. Services are strength-based and client centered for individuals who are challenged by substance abuse and co-occurring disorders and/or are deemed high-risk to reoffend in the community. Clients are ideally engaged in MHC for a period of 18 to 24 (credit-earned) months by transitioning through four phases, with an ongoing relationship of care in the areas of treatment, case management, housing, medication, stability, job readiness, parenting, and educational referrals.

The link to the quoted source is here:

https://seconddistrictcourt.nmcourts.gov/home/programs-specialty-courts/pre-trial-services/jsdp-programs/mental-health-court/

CIVIL MENTAL HEALTH COMMITMENT HEARINGS

The are laws on that books that deal with when and under what circumstances formal civil commitment hearings can be initiated for 3-day, 7-day and even 30-day observation and diagnostic evaluations for the mentally ill and the drug addicted. These time frames to allow treatment must expanded to allow for far more time, perhaps 6 month to a year of two years and could be made mandatory.  The civil commitment deals with  those who are a danger to themselves and others and provides that the District Attorney can initiate civil mental health commitment actions for evaluations and treatment.

The link to review the applicable New Mexico state statutes NM Statute §43-1-1 (2019), NM Stat § 43-1-1 (2019), NM Stat § 43-1-11 (2020) on civil mental health commitments is here:

https://law.justia.com/codes/new-mexico/2020/chapter-43/article-1/section-43-1-11/#:~:text=An%20interested%20person%20who%20reasonably,grounds%20exist%20to%20commit%2

NEW MEXICO’S CRIMINAL JUSTICE COURT SYSTEM

There are 13 Judicial District Courts in the State of New Mexico that are courts of general jurisdictions that handle both civil and criminal matters for the 33 counties in the State of New Mexico. Each of the 13 Judicial District Courts have primary jurisdiction over one or more counties based on population.

State District Courts are primary courts of jurisdiction over criminal cases, including felonies and misdemeanor cases. State District Courts have jurisdictions over civil matters with disputes of more than $10,000, domestic relations, mental health and civil commitment cases, appeals from administrative agencies, disputes over real estate, contract disputes, tort actions for personal injury.  District Court criminal convictions and criminal matters are appealable to the one New Mexico Court of Appeals and/or the New Mexico Supreme Court.

New Mexico also has a small claims court or Magistrate Court and Metropolitan Court System that are courts of limited jurisdiction that handle civil disputes of up to $10,000 and misdemeanor criminal matters and appeals are to the State District Courts.

An Administrative Office of the Courts (AOC) has been established and is funded by the New Mexico legislature to enable the courts to accomplish their mission by ensuring that the courts have adequate, equitable distributed resources. The AOC ensures that the courts have and use current technology and it provides a statewide human resources system. The AOC is responsible for developing and implementing improved court processes and supporting the courts in their  use.  The AOC ensures sound financial, budgeting and procurement practices in the management of court resources.

https://www.nmcourts.gov/court-administration/administrative-office-of-the-courts-aoc/

COMMENTARY AND ANALYSIS

It’s very disappointing that the Governor has failed to reach any real consensus with legislative leaders on what needs to be done and what measures should be enacted before  the special session she has called.   All five measures Governor Lujan Grisham is proposing for the Special Session are a good start, but in no way come even close to what is actually needed.  Warehousing the mentally ill or drug addicted in jails for crimes committed is not the answer and does not address treatment and the court’s must be looked to as part of the solution.

Governor Michelle Lujan Grisham and the New Mexico Legislature need to proceed with  the  Special Session of the legislature for public safety, but the primary emphasis should  be the creation of a new 14^th Judicial District Court designated as a  Mental Health Court  with 3 separate regional divisions one located in Albuquerque, one in Las Cruces and one in Las Vegas, New Mexico with the creation of at least 3 District Court Judge positions with 6 year terms appointed by the New Mexico Supreme Court.  Appointment by the Supreme Court would ensure rapid filling of the new positions and take the elective partisan politics out of the process.  The Administrative Offices of the Courts must play  a pivotal role in setting up the new court process, including locating the new Mental Health Treatment Court in existing court houses in all 3 locations.

Governor Michelle Lujan Grisham and the legislature should seek to designate the 14^th Judicial District Court a specialty “Mental Health Treatment Court” functioning as outreach and treatment court for the drug addicted and the mentally ill in mandatory  hospital or counseling settings and not involving jail incarceration.

As has been  pointed out by New Mexico State Representative Christine Chandler, there is a major  need for the construction and staffing of a mental health facilities or hospitals to provide the services needed to the mentally ill or drug addicted. As it stands now, there exists less than adequate facilities where patients can be referred to for civil mental health commitments and treatment.  In other words there is nowhere for people to go or be placed to get the mental health and drug treatment needed. There is glaring need for a behavioral health hospital and drug rehabilitation treatment facilities.  The Bernalillo County Behavioral Health Center and the Las Vegas Mental Health hospital could be expanded to accommodate for court referrals and a new behavioral health facility could be constructed in Las Cruces to handle mental health commitment and treatment.

New Mexico is currently experiencing historical surplus revenues and this past legislative session the legislature had an astonishing $3.6 Billion in surplus revenue. Now is the time to create a statewide Mental Health Court and dedicate funding for the construction of behavioral health hospital and drug rehabilitation treatment facilities the courts can rely upon for referrals.

Creation of a new court system must include funding for District Attorneys and Public Defenders with dedicated personnel resources for the filing and defending of civil mental health commitments as prescribed by law.

A statewide mental health court with mandatory civil commitments will get treatment to those who need it the most, help get the unhoused off the streets and help families with loved ones who resist any mental health treatment.

Links to related blog article are here:

Convening Special Session Of NM Legislator For Public Safety Must Include Expanding Existing Mental Health Court; Create New 14th Judicial District Court With 3 Regional Divisions For Mental Health Commitment Hearings; Build Regional Treatment Facilities And Hospitals For Mandatory Treatment Ordered

 

ABQ Journal Dinelli Guest Opinion Column: “Lawmakers should set up statewide mental health court”; Related Column: Laws, Statistics, and Resources Needed To Create 14th Judicial District Court For Mental Health Commitment Court

https://www.petedinelli.com/2024/04/17/gov-mlg-to-call-special-session-on-july-18-focus-to-be-public-safety-special-session-should-include-creating-state-wide-mental-health-court-for-civil-mental-health-commitments-to-assist-mentally-il/

 

On May 13, 2024 Federal Court Appointed Monitor James Ginger filed his 19th Independent Federal Monitor’s report. The 19th Monitor’s Report covers the time period of August 1, 2023, through January 31, 2024.  The report is 115-pages long.  It is the shortest report filed to date with the previous reports averaging about 300 pages.  The link to review the entire 19^th report is here:

https://www.cabq.gov/police/documents/final-imr-19.pdf/view

The Court Approved Settlement Agreement mandates 271 police reforms, the appointment of a Federal Monitor and the filing of Independent Monitor’s reports (IMRs) on APD’s compliance with the reforms. There are 276 paragraphs in 10 sections within the CASA with measurable requirements that the monitor reports on. The ultimate goal of the settlement was to implement constitutional policing practices.  Its aim is to make sure APD police officers follow policy and don’t use excessive force or deadly force. The U.S. Department of Justice investigation a decade ago found a disturbing pattern and practice of the use of unconstitutional excessive force by Albuquerque Police officers, particularly with the mentally ill or those in crisis as the victims.  The link to the 118-page CASA is here:

https://documents.cabq.gov/justice-department/settlement-agreement.pdf

The 19^th Federal Monitor’s report finds that APD has reached 100% Primary Compliance,  100% Secondary Compliance and 96% Operational Compliance.  Under the terms and conditions of the CASA, once APD achieves a 95% compliance rate in all 3 identified compliance levels and maintains it for 2 consecutive years, the case can be dismissed. Originally, APD was to have come into compliance within 4 years and the case was to be dismissed in 2018. However, because of delay and obstruction tactics by both APD management and the police union to implement in full the reforms, a 5 year delay resulted.

The 3 compliance levels are explained as follows:

PRIMARY COMPLIANCE

Primary compliance is the “policy” part of compliance. To attain primary compliance, APD must have in place operational policies and procedures designed to guide officers, supervisors and managers in the performance of the tasks outlined in the CASA. As a matter of course, the policies must be reflective of the requirements of the CASA; must comply with national standards for effective policing policy; and must demonstrate trainable and evaluable policy components.

SECONDARY COMPLIANCE

Secondary compliance is attained by implementing supervisory, managerial and executive practices designed to and be effective in implementing the policy as written, e.g., sergeants routinely enforce the policies among field personnel and are held accountable by managerial and executive levels of the department for doing so. By definition, there should be operational artifacts such as reports, disciplinary records, remands to retraining, follow-up, and even revisions to policies if necessary, indicating that the policies developed in the first stage of compliance are known to, followed by, and important to supervisory and managerial levels of the department.

OPERATIONAL COMPLIANCE

Operational compliance is attained at the point that the adherence to policies is apparent in the day-to-day operation of the agency e.g., line personnel are routinely held accountable for compliance, not by the monitoring staff, but by their sergeants, and sergeants are routinely held accountable for compliance by their lieutenants and command staff. In other words, the APD “owns” and enforces its policies.

EXECUTIVE SUMMARY

The 19^th Federal Monitors report contains the following succinct summary of the 115 page report:

“APD and CPOA  [Civilian Police Oversight Agency] have made significant progress during the IMR-19 reporting period. The monitor acknowledges that progress has taken a significant effort from APD, CPOA, and the City. The number of APD self-monitored paragraphs is at the highest point in the history of the CASA compliance efforts. This is a significant achievement, indicating that APD is now capable of assuming responsibility for oversight of CASA requirements and is not reliant on the monitoring team to do so.

We note that all the CASA paragraphs relating to discipline are compliant. This represents another milestone for APD’s compliance efforts. As of the 19th reporting period, APD is effectively self-monitoring 191 paragraphs.

Perhaps more importantly, we found all force investigation processes compliant during the 19th reporting period. Level 2 and Level 3 use of force incidents were down 16 percent from the last reporting period. We consider this strong evidence that APD’s policies, supervisory oversight, and disciplinary systems are working as designed.

We note that the External Force Investigation Team (EFIT) is no longer providing oversight to the Internal Affairs Force Division (IAFD). Similar progress is evident at CPOA during this reporting period. All the CPOA investigations reviewed by the monitoring team this reporting period were compliant with the CASA requirements. The CPOA Board has been fully reconstituted and are currently working to complete training and other requirements of the CASA.

We would be remiss, however, if we did not note some remaining areas that are still in need of improvement. These include:

• CPOA issues related to timelines and staffing;
• Completing the implementation of effective training for the CPOA Board members; and
• Continuing improvement of supervisory oversight of in-field activities such as use of force.

Frequent readers of the monitor’s reports will note that this “to-do list” is markedly shorter than in the past. This is reflective of the significant progress APD has made over the last six months.”

The link to review the entire 19^th report is here:

https://www.cabq.gov/police/documents/final-imr-19.pdf/view

STATUS HEARING ON 19^TH FEDERAL MONITORS REPORT

On June 4, Federal U.S. District Judge James Browning, the presiding Judge over the Court Approved Settlement Agreement (CASA) held a status conference to go over the 19^th Federal Monitor’s report and listened to testimony from the parties. During the five-hour hearing before Judge Browning, he asked a number of questions of city officials, the party’s to the lawsuit and the Federal Monitor ranging from APD’s staffing to whether Albuquerque is number 1 in the country for violent crime per capita.

Federal Monitor James Ginger and Department Of Justice (DOJ) officials reported that APD is now at fully compliant with the court-approved settlement agreement known as the CASA.   The significance of APD being in compliance is that APD has now entered into  a new “sustainment” phase to last until the end of 2025. If there’s no backsliding, which has occurred in the past,  the DOJ consent decree can be dismissed as mandated by the settlement.

The DOJ officials applauded APD leadership for increasing transparency in the department and praised the quality and thoroughness of its Internal Affairs investigations of police misconduct.   Federal Monitor James Ginger and Department Of Justice (DOJ) officials reported a significant improvement and turnaround in the operations of the Albuquerque Police Department (APD).  DOJ officials told Judge Browning the improvement is due in part to the creation of a new city agency to handle calls from those in distress and the overhaul of police excessive force policies and training, and improvements in supervisory oversight and evaluation.

CIVILIAN POLICE OVERSIGHT AGENCY PROBLEMATIC AS TO ACHIEVING COMPLIANCE

Paul Killebrew, the Deputy Chief of the U.S. Department of Justice Civil Rights Division said the city is at 96% Operational Compliance with several hundred reforms set out in the Court Approved Settlement  Agreement:

“This is a victory we’ve long wanted to see.”

While APD achieved compliance in all 3 areas, the remaining 4% of the  Operational Compliance noncompliance pertains to the city’s Civilian Police Oversight Agency. According to the DOJ, Compliance failure was reported primarily due to lack of staffing and timeliness of its investigations of complaints.  Paul Killebrew, the Deputy Chief of the U.S. Department of Justice Civil Rights Division, told Judge Browing  that the civilian agency is improving its operations, and increased staffing is expected to help.

As for the APD, Killebrew said this:

“For two years, we want to see compliance be maintained and that can persuade us the reforms are durable. … We’ve learned over time these institutional reform cases can be complicated. We need to see systems implemented that will prevent a recurrence in the future.”

Killebrew told the court that the police agencies in  Portland, Seattle and the Virgin Islands have  achieved compliance with DOJ consent decrees but could not sustain that compliance for the 2 years that followed.  Killebrew said it was premature to say what would happen if APD  failed to sustain compliance over the next two years. Killebrew said this:

“We would have to see what noncompliance looks like.”

OTHERS REPORT

Independent Monitor James Ginger, whose monitoring team of experts is expected to stay on through the next two years, said this:

“Overall, I’m optimistic.”

Richard Necelis, associate monitor on Ginger’s team for his part said this:

“What I’ve seen is more than box-checking.  I’ve been looking at the disciplinary system since 2015. There really has been deep-rooted change.”

U.S. Attorney for New Mexico Alexander Uballez for his part told the court this:

“We do have a reason to celebrate a milestone.  … [but] much remains to be done. … The coming years offer hope. … This change is about taking our city back. This milestone belongs to our city, and to all of us.”

APD POLICE OFFICER INVOLVED SHOOTINGS STILL “TROUBLING”

It was reported that despite the improvement and gains made by APD to implement the reforms, APD Police Officer involved shootings are still occurring at “deeply troubling” rate.  Judge Browning said he has been asked how APD can be in compliance with the CASA given that the level of police shootings is “at the same level as it was when you started this process. We are still having, I would say, troubling police shootings.”

In response to Judge Browning, Killebrew said this:

“The number of police shootings is deeply troubling. It’s not what we anticipated. In 2024, we’re still watching what’s going on.”

In the past, the DOJ investigation concluded, there was a high number of “unlawful” shootings followed by little to no accountability of officers who violated the Fourth Amendment.  Killebrew said in the DOJ’s evaluation of 2022 and 2023 individual incidents and the internal systems used by the APD to evaluate them, “we did not see the pattern continuing.” Killebrew added that with training and de-escalation skills, police officers are using a different approach to handling difficult encounters. Killebrew said this:

“All of these things help to ensure officers use force when necessary and only the amount of force necessary.”

According to DOJ officials, it is monitoring those incidents.  Notwithstanding, DOJ officials testified and told Judge Browning that serious use of force incidents are down.  DOJ officials testified the shootings generally have been found to be constitutionally sound.

Taylor Rahn, an Albuquerque attorney representing the city of Albuquerque, told Judge Browning that in 2023, in every APD officer-involved shooting, the suspect was armed and only one didn’t involve a firearm and that incident involved a knife.

A trend reported to the court was that much of the past “use of deadly force” was directed at people who were “in crisis.”  However, in 2023, none of the officer-involved shootings stemmed from calls initiated as behavioral health calls. Rahns said each started as an actual crime in process.

Killebrew said serious force incidents “continue to decline” and there is progress the city has made outside of the court-approved settlement agreement, such as the creation of the Albuquerque Community Services agency that has diverted calls involving potentially mentally ill or distressed people away from an initial police response.

APD RANKS #1 IN CIVILIAN KILLINGS OUT OF THE 50 LARGEST CITY POLICE DEPARTMENTS IN THE COUNTRY

During the June 4 status conference, Judge Browning asked Chief Medina whether Albuquerque is number one in the country for violent crime per capita as reported by the media. Chief Medina told the Judge Browning that contrary to some news reports, it is the state of New Mexico that is highest in the country per capita for violent crime. What was not discussed during the June 4 hearing was the extent of killings of civilians by APD.

On April 10, the on line news publication Searchlight New Mexico published a remarkable story researched and written by its  staff reporter Josh Bowling.  The article is entitled “Can the Albuquerque Police Department ever be reformed?”  The article goes into great detail explaining the Court Approved Settlement Agreement, what has been done to reform APD and the the role of the Federal Monitor. The link to read the full, unedited Searchlight New Mexico article with photos and graphs is here:

https://searchlightnm.org/can-the-albuquerque-police-department-ever-be-reformed/?utm_source=Searchlight+New+Mexico&utm_campaign=ca4e266790-4%2F10%2F2024+-+Albuquerque+Police+Department+Reform&utm_medium=email&utm_term=0_8e05fb0467-ca4e266790-362667516&mc_cid=ca4e266790&mc_eid=ccd9412715

The Search Light New Mexico article reported that  last year, the Albuquerque Police Department killed 10.6 people per million residents,  more than any other sizable police department in the nation, according to data tracked by the national nonprofit Mapping Police Violence.

Following are the relevant excerpts from the Search Light New Mexico article

In 2022, the department set a record for police shootings with 18, 10 of which were fatal. That year, a Searchlight analysis found, only the police departments in Los Angeles, New York and Houston killed more people than APD.

Law enforcement officials, including police leaders and district attorneys, say such figures are nuanced. They point to the acute dearth of mental health resources in New Mexico and, anecdotally, stories of people who draw guns on police officers as explanations for why the problem of police violence is so outsized locally.”

…

“In the past four years, Albuquerque police repeatedly shot people who were suffering visible mental health crises. They shot 26-year-old Max Mitnik in the head during a “schizoaffective episode” in which he asked officers to fire their weapons at him; they shot and killed 52-year-old Valente Acosta-Bustillos who swung a shovel at officers and told them to shoot him; they shot and killed 33-year-old Collin Neztsosie while he was on his cell phone, pleading for help with a 911 dispatcher.

These grim numbers have led reform advocates, critics and law enforcement leaders themselves to question what it means to be “in compliance.”

“You can improve things on paper or comply with the terms of a consent decree and still have these things happening. … Albuquerque is a prime place to be asking the questions…about what impact consent decrees have. The city should be ground zero for the national conversation on police reform” said UCLA law professor Joanna Schwartz, author of the 2023 book “Shielded: How the Police Became Untouchable.”

This is not to say that the consent decree has been without merit. The 2014 Court-Approved Settlement Agreement between the DOJ and Albuquerque laid out nearly 300 mandated reforms: Since its launch, APD has fulfilled hundreds of reform requirements, including overhauling scores of policies and training procedures.”

The Search Light New Mexico article contains a horizontal graph listing the 50 largest cities in the United States. According to the graph, among the 50 largest cities, Albuquerque Police killed people at the highest rate than all the other city police departments in 2023  at the rate of  10.6 per 1 Million population. It is worth comparing Albuquerque’s 10.6 kill rate to the largest cities in the surrounding border states of Texas, Colorado, Arizona and also including Oklahoma and Nevada:

• Albuquerque, NM: 10.6
• San Antonio, Texas:  9.8
• Phoenix, Arizona: 8.7
• Austin, Texas: 7.3
• Denver, Colorado: 5.6
• Tucson, Arizona: 5.5
• Fort Worth, Texas: 5.4
• Houston, Texas: 5.2
• Colorado Springs, Colorado: 4.2
• Dallas, Texas: 3.1
• El Paso, Texas: 2.9
• Las Vegas, Nevada: 2.6
• Oklahoma City, Oklahoma: 2.0

APD PERSONNEL LEVELS

APD Chief Harold Medina gave Judge Browning a report on APD personnel levels. Medina told Judge Browning the current  number of APD sworn police officers currently is at 950, but that is questionable.  Chief Medina did not report that for the last 15 years, APD has had a consistent meltdown and decline in overall number of APD sworn officers.

On December 1, 2009 when Mayor Richard Berry was sworn into office succeeding Mayor Marty Chavez, the Albuquerque Police Department (APD) was the best trained, best equipped, best funded police department in its history. In 2009, APD was fully staffed with 1,100 sworn police officers.  APD response times had been brought down below the national average and violent and property crime rates in Albuquerque were hitting historical lows.

During the 8 years Mayor Richard Berry was in office, the city’s violent crime and property crime rates hit historical highs and APD went into a personnel meltdown going from 1,100 sworn police officers to 853 sworn police, a loss of 247 sworn police. Since taking office on December 1, 2017 Mayor Tim Keller has made Public Safety his number one priority over the last 7 years because of the city’s spiking violent crime rates.

Notwithstanding all of APD’s efforts to recruit and expand APD, the department is still seriously short staffed. This is despite the millions being spent on salary increases, sign on bonuses and being the best paid law enforcement agency in the state and the region.

According to the 2024-2025 proposed budget, by mid-fiscal year 2024, APD had 856 sworn officers which is only 3 more sworn police than the day Keller took office in 2017.  Given the volume of arrests and cases, APD is critically understaffed to complete its mission.

The link to a quoted and relied upon news source  is here:

https://www.abqjournal.com/news/doj-outside-experts-praise-apds-compliance-with-use-of-force-reforms/article_79c2735a-22b0-11ef-a007-23c3b4e2a3d7.html

APD BRIBERY AND CONSPRACY SCANDAL TO DISMISS DWI CASES

It was on Friday January 19, 2024 that the Federal Bureau of Investigation (FBI) executed search warrants and raided the homes of 3 Albuquerque Police officers and the home and law office of prominent DWI criminal defense attorney Thomas Clear, III.  All 6 are allegedly involved in a bribery and conspiracy scheme spanning a decade to dismiss DWI cases. Bernalillo County District Attorney Sam Bregman ordered the dismissed 196 DWI cases because of the scandal due to the main witnesses’ credibility being called into question which in all the cases are APD officers. All 6 of the APD officers have since resigned.  The Albuquerque Police Department has opened its own Internal Affairs investigation of the 6 APD officers and the FBI Investigation is continuing and no one has yet to be charged.

The ongoing FBI criminal investigation of APD’s bribery and conspiracy scandal was a topic of discussion during the June 4 status conference on the Court Approved Settlement Agreement. During the hearing, U.S. District Judge James Browning brought up the criminal investigation of the DWI unit and asked, “If what I read in the paper might be occurring, would that violate any of the terms of [the agreement]? If the police department was unable to discover such a large problem, would that cause any concern [related to the consent decree compliance]?”

Paul Killebrew, deputy chief of the U.S. Department of Justice’s Civil Rights Division, responded that he wasn’t privy to the investigation by the DOJ’s criminal division. He said it would be premature to draw any conclusions. Killebrew told Judge Browning this:

“… APD can’t solve its force problem if it doesn’t solve its accountability function. … I don’t know what’s going on or how far-reaching things are [with the DWI dismissal investigation], but with any large organization, you have to expect there will be some people who violate the law. We don’t know if it’s a systems breakdown or individual violations.”

Browning pressed Killebrew and asked: “Is that an area that could be a problem with continued compliance over the next two years?”  Killebrew responded “Oh, yes. [If a widespread problem is uncovered by the FBI criminal investigation that implicates the accountability of the APD] that would raise some serious questions about the efficacy of reform.”

U.S. Attorney Uballez told Judge Browning that there was much he and Medina could nor  divulge about the FBI inquiry, but Uballez added that the investigation has proceeded in full partnership with APD and he said  “People will be held to account.”

The link to the quoted and relied upon news source is here:

https://www.abqjournal.com/news/how-the-dwi-unit-probe-nearly-got-derailed/article_05863e82-24e9-11ef-af2e-f39f8b82dfee.html#tncms-source=home-featured-7-block

COMMENTARY AND ANALYSIS

The announcement that APD,  after over 9 years,  is now in full compliance with the Court Approved Settlement and implementation of the reforms is indeed a historic milestone.  APD is commended for at last getting the job done.  The 19^th report from the monitor essentially says APD is “effectively self-monitoring” and that APD’s uses of force have decreased. The monitor’s report notes that APD still needs to improve supervisory oversight of in-field activities. The monitor also has said  the Civilian Police Oversight Agency, which focuses on police accountability, needs to address timeliness and staffing issues.

The resulting settlement agreement with the DOJ led to an overhaul of APD use of force policies, recruitment, training, internal affairs procedures and field supervision of officers.  The implementation of all the reforms took over twice as long as was originally agreed and required the expenditure of millions of dollars and oversight by an outside independent monitor. The Federal Monitor and his team have been paid upwards of $11 Million for their services and reports. The city has also spent over $40 million to implement the reforms.

The Court Approved Settlement Agreement requires 95% Operational Compliance by APD. Operational compliance tracks whether officers follow policies and whether they’re corrected when they don’t. According to this latest report  APD is  at 96% Operational Compliance.

Since October 2019, APD has been and has remained at 100% Primary Compliance, meaning all required policies and procedures are in place. APD is also at 100% Secondary Compliance regarding the training of officers.

The achievement of 96% of Operational Compliance now allows APD to enter a new phase of implementation directed towards the  dismissal of the case. What the 19^th report means is that APD can move toward self-monitoring with all of its remaining sections that have not already been dismissed by the court. If compliance can be sustained at 95% or more in all 3 compliance levels for two years, the case can be dismissed.

PEOPLE IN MENTAL CRISIS

The Court Approved Settlement Agreement was the result of an 18-month long investigation by the Department of Justice (DOJ) that found that the Albuquerque Police Department engaged in a pattern of “excessive use of force” and “deadly force”, especially when dealing with the mentally ill and the homeless.  The 19^th Federal Monitor’s report states in part as follows:

“[In evaluating APD’s  and the city’s current response to] individuals in crisis and people who are unsheltered, we note that APD has met, and in many cases, far exceeded, the requirements of the CASA as it relates to mental health response planning, crisis intervention, training development and delivery, and services delivery. … We remain highly concerned about the sheer number of officer-involved shooting of people in crisis or people with mental illness. We appreciate the CIU’s efforts to continuously review officer behavior in the field and take appropriate corrective actions when necessary. Still, APD leadership and accountability structures must also effectively address these issues.”

FLY IN THE OINTMENT

The only fly in the ointment at this point continues to be the Civilian Police Oversight Agency. Issues found with the Civilian Police Oversight Agency include inadequate staffing and late completion of investigations, due to excessive caseloads the report said.

The 19^th Federal Monitor’s report put it this way:

“From the monitor’s perspective, CPOA remains in crisis. … The change in compliance levels does not effectively demonstrate the progress made by APD and the CPOA (Civilian Police Oversight Agency) during this reporting period. … In this report, APD has demonstrated its commitment to policies, supervisory oversight, and importantly, a disciplinary process that holds officers accountable when necessary.”

It was the 18^th  Federal Monitor’s Report that identified the failures of civilian oversight as  representing  the largest remaining roadblock to the city in ending the consent decree with the U.S. Department of Justice.  Twelve of the remaining 15 paragraphs of the Court Approved Settlement Agreement involve failures with the Civilian Police Oversight Agency (CPOA) which is appointed and overseen by the Albuquerque City Council.  The Civilian Police Oversight Advisory Board (CPOA) was formed in January, 2023 after the City Council abolished the previous Civilian Police Oversight Board.

The 18th Federal Monitor’s Report found that the civilian oversight mandated by the CASA is “in crisis” with understaffing and excessive caseloads leading to inadequate investigations by the external board tasked with everything from evaluating civilian complaints to weighing in on police shootings.  The report also showed that 12 of the remaining 15 sections of the settlement that are noncompliant revolve around the operations of the Civilian Police Oversight Advisory Board. The monitor found that since the change made in January, 2023, the CPOA had not been able to properly function.

The 18^th Monitor’s  Report states:

“From the monitor’s perspective, CPOA is in crisis. This crisis was birthed by understaffing, the need for the City to fill supervisory and oversight positions, and the need to improve the organizational structure of the agency.”

The CPOA’s problems led the city to fall behind on Secondary Compliance which had reached 100% compliance in the 17th report but dropped by 1% and is  now at 99%  in the 18^th IME Report due to a drop in CPOA training.

Then City Council President Pat Davis  said in a letter to Mayor Tim Keller that changes to “key leadership” within the City Council and the administration “slowed things down” over the summer, but they have since interviewed more than a dozen applicants for the vacant board positions.  Davis said the council expected to reach its initial goal of having those positions filled, as well as filling a crucial leadership role, by the end of the year.

Davis said the board was  expected to be fully staffed and hire a contract compliance officer, who would make sure the CPOA abides by the settlement agreement and would be in charge of staffing, by the end of December. Davis said this:

“We’re on track. … This is the last big-ticket item, the administration wants it done fast, the monitor wants it done fast, we want it done well — and fast.”

On January 1, 2024  a new city council was  sworn in.  During a November 8 news conference announcing the 18^th Federal Monitors Report, Mayor Keller emphasized the CPOA is the responsibility of the City Council, but said his administration is “here to help.”

When asked if the city could reach full compliance without the CPOA portions of the CASA fulfilled, city and police officials replied, “Just barely.”  Keller said if the City Council doesn’t get the CPOA into compliance with the CASA, one option would be to split the CASA into two, calling the CPOA half “a little casita.”

REFORMS ACHIEVED UNDER THE CASA

On November 16, 2023, it was a full 9 years that has expired since the city entered into the CASA with the DOJ. It was originally agreed that implementation of all the settlement terms would be completed within 4 years, but because of previous delay and obstruction tactics  by APD management and the police officers’ union found by the Federal Monitor as well as APD backsliding in implementing the reforms, it has taken another 5 years to get the job done.

After 9 full years, the federal oversight and the CASA have produced results. Reforms achieved under the CASA can be identified and are as follows:

1. New “use of force” and “use of deadly force” policies have been written, implemented and all APD sworn have received training on the policies.
2. All sworn police officers have received crisis management intervention training.
3. APD has created a “Use of Force Review Board” that oversees all internal affairs investigations of use of force and deadly force.
4. The Internal Affairs Unit has been divided into two sections, one dealing with general complaints and the other dealing with use of force incidents.
5. Sweeping changes ranging from APD’s SWAT team protocols, to banning choke-holds, to auditing the use of every Taser carried by officers and re-writing and implementation of new use of force and deadly force policies have been completed.
6. “Constitutional policing” practices and methods, and mandatory crisis intervention techniques an de-escalation tactics with the mentally ill have been implemented at the APD police academy with all sworn police also receiving the training.
7. APD has adopted a new system to hold officers and supervisors accountable for all use of force incidents with personnel procedures implemented detailing how use of force cases are investigated.
8. APD has revised and updated its policies on the mandatory use of lapel cameras by all sworn police officers.
9. The Repeat Offenders Project, known as ROP, has been abolished.
10. Civilian Police Oversight Agency has been created, funded, fully staffed and a director was hired.
11. The Community Policing Counsels (CPCs) have been created in all area commands.
12. The Mental Health Advisory Committee has been implemented.
13. The External Force Investigation Team (EFIT) was created and is training the Internal Affairs Force Division on how to investigate use-of-force cases, making sure they meet deadlines and follow procedures.
14. Millions have been spent each year on new programs and training of new cadets and police officers on constitutional policing practices.
15. APD officers are routinely found using less force than they were before and well documented use of force investigations are now being produced in a timely manner.
16. APD has assumed the self-monitoring of at least 25% of the CASA reforms and is likely capable of assuming more.
17. The APD Compliance Bureau has been fully operational and staffed with many positions created dealing directly with all the reform efforts and all the duties and responsibilities that come with self-assessment.
18. APD has attained a 100% Primary Compliance rate, a 100% Secondary Compliance rate and a 96% Operational Compliance rate.

CITY SHOULD SEEK DISMISSAL OF CASE AND NOT WAITE ANOTHER 2 YEARS

Simply put, the Court Approved Settlement Agreement was never designed to guarantee or completely stop nor prevent police officer involved shootings, but it was  designed to implement constitutional policing practices, especially when dealing with the mentally ill.  There never was a guarantee that police officer shootings of civilians would simply never occur again even with training.  What the CASA reforms ensure is that police officers are being held accountable when they violate constitutional policing practices and peoples civil rights.  All that really can be done is to train and  implement constitutional policing practices in the hopes that it will bring down police officer shootings of civilians. 

Over the last 9 years, APD has devoted thousands of manhours and the city has spent millions of dollars on the reform process, creating and staffing entire divisions and roles and rewriting policies and procedures.  APD has implemented oversight outside of the CASA requirements, implementing 6-month reviews of police shootings to identify shortcomings and possible solutions.

Despite the fact that the Court Approved Settlement Agreement mandates 2 years of sustained compliance of all 3 levels, it can be said that the spirit and intent of the CASA have now been fully achieved.  Given the extent of the compliance levels, the work of the Federal Monitor is done. The purpose and intent of the settlement has been achieved and it should now be dismissed.

The city should seek to negotiate a stipulated dismissal of the case with the Department of Justice (DOJ) sooner rather than later.  Should the DOJ refuse, the City Attorney should move to immediately to dismiss the case under the termination and suspension provisions of the CASA by filing a Motion to Dismiss the case and force the issue with an evidentiary hearing and let the assigned federal judge decide the issue of dismissal.

Search Light New Mexico Article: “Can The Albuquerque Police Department ever be reformed?”; APD Ranks #1 In Civilian Killings Out Of The 50 Largest City Police Departments In The Country; APD Killing More People Than Ever Despite Implementation Of Reforms