Being An Idiot Or A Moron Is Not A “High Crime Or Misdemeanor”

The Huffington Post has reported President Donald Trump is considering his own son-in-law Jared Kushner for the job of Chief of Staff to replace former General John Kelly who is leaving at the end of the year.

https://www.huffingtonpost.com/entry/donald-trump-chief-of-staff-jared-kushner_us_5c12c616e4b0f60cfa277b93

https://www.cbsnews.com/news/jared-kushner-under-consideration-for-white-house-chief-of-staff/

Kushner, who is already an official White House adviser, already has met with President Trump about the job.

According to media outlets, Kushner has been pushing his own candidacy with Trump, citing his work on a criminal justice reform package and a claimed ability to work with Democrats.

Trump is scrambling to find another Chief of Staff, considered one of the most powerful positions in the White House.

Nick Ayers, the Chief of Staff to Vice President Mike Pence, was seen as the frontrunner to replace Trump’s departing Chief of Staff John Kelly, until he withdrew from consideration.

Others that were said to being considered are Office of Management and Budget director Mick Mulvaney, Rep. Mark Meadows, a North Carolina Republican and the chairman of the House Freedom Caucus, Treasury Secretary Steve Mnuchin, U.S. Trade Representative Robert Lighthizer and former New Jersey Governor Chris Christie who ran for President against Trump.

FEDERAL NEPOTISM LAW

There is no doubt that if Trump appoints Jared Kushner Chief of Staff it would be in violation of the federal nepotism statute, but that does not matter because of the way the law is written.

Following is the statute:

5 U.S. Code § 3110 – Employment of relatives; restrictions

(a)For the purpose of this section—

(1)“agency” means—

(A) an Executive agency;

(B)an office, agency, or other establishment in the legislative branch;

(C)an office, agency, or other establishment in the judicial branch; and

(D)the government of the District of Columbia;

(2) “public official” means an officer (including the President and a Member of Congress), a member of the uniformed service, an employee and any other individual, in whom is vested the authority by law, rule, or regulation, or to whom the authority has been delegated, to appoint, employ, promote, or advance individuals, or to recommend individuals for appointment, employment, promotion, or advancement in connection with employment in an agency; and

(3) “relative” means, with respect to a public official, an individual who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.

(b) A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to a civilian position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.

(c) An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced.

(d) The Office of Personnel Management may prescribe regulations authorizing the temporary employment, in the event of emergencies resulting from natural disasters or similar unforeseen events or circumstances, of individuals whose employment would otherwise be prohibited by this section.

(e) This section shall not be construed to prohibit the appointment of an individual who is a preference eligible in any case in which the passing over of that individual on a certificate of eligibles furnished under section 3317(a) of this title will result in the selection for appointment of an individual.

The position of Chief of Staff does not have to be approved like cabinet secretaries with advise and consent of the United States Senate which means that Trump could go ahead with the appointment.

The problem with the statute is the penalty for violating it contains no criminal penalty.

According to section 3 (C) if Trump makes the appointment of Jared Kushner as Chief of staff the only penalty would be is that Kushner would not be paid, but he would have the enormous power within the White House.

Kushner is a millionaire, does not need to be paid, and is no doubt more interested in the power.

COMMENTARY AND ANALYSIS

Article II, Section 4 of the United States Constitution provides that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The power and authority to bring Articles of Impeachment rests solely with the United States House of Representatives and a trial is then conducted by the United State Senate for removal from office, unless of course there is a resignation like Richard Nixon.

A “high crime and misdemeanor” can be whatever the House of Representatives say it is in Articles of Impeachment.

However, being an idiot or a moron is not a high crime or misdemeanor, because if it were, well, let’s not go there.

Violating the provisions of the nepotism statute could easily be defined as an impeachable offense.

The biggest problem for Trump at this point is finding anyone within his own administration who is actually loyal to him, who does not think he is a “f…ing moron” as expressed by former Secretary of State Rex Tillerson or an “idiot” as expressed by John Kelly in private, and who does not think he has any business being President.

The appointment of Kushner would undermine the intent and spirit of the law but that has never mattered to Trump.

Jared Kushner and Trumps daughter Ivanka Trump may be the only two in the White House that Trump can trust at this point, but that still does not mean that they do not think he is a moron or an idiot.

It’s kinda like saying, I love my father, drunk or sober, moron or idiot.

For a related blog article see:

Trump Scrambles To Find A Loyal Chief of Staff

City: “Go Play On The Freeway and ART Bus Platforms”

On December 12, 2018, the Keller Administration announced it wants to make use of the unused ART Bus lanes and platforms on Central until new buses arrive.

There are 20 empty or unused ART platform bus stations along the 9-mile Central Ave route, all with electric utilities, including neon lighting and police monitors with adjoining dedicated bus lanes.

It could be another 18 months before new diesel-fueled ART buses from manufacturer New Flyer are manufactured, delivered and running full service along the 9-mile Central Avenue ART Bus route.

You can review news coverage here:

https://www.krqe.com/news/albuquerque-metro/mayor-proposes-pop-ups-events-for-empty-art-stations-bus-lanes/1656194054

https://www.abqjournal.com/1256889/dormant-art-stations-could-become-event-sites.html

The newly ordered New Flyer buses have a base price of $870,000, which is $500,000 less than the original electric buses.

CITY PROPOSES TEMPORARY ALTERNATIVE USE FOR THE PLATFORMS

The city will not allow use of the dedicated ART Bus lanes for regular traffic.

Mayor Tim Keller proclaims that even while there’s no bus movement in the ART lanes, it is still illegal to drive in them by crossing the double white lines and rumble strips.

Instead, Mayor Keller announced he wants to open the tens of millions of dollars of ART Bus infrastructure to local businesses, artists and anyone who wants to apply for a temporary permit for an event.

Permits to locate a “small pop-up business” at any one of the bus stops is also being considered.

According to ABQ Ride Public Information Officer Rick De Reyes:

“Marathons, 5 or 10K runs, for getting music and bands on the platforms, maybe to pop up events for businesses and even art shows, things like that [can be considered] … They’re trying to find a way to be able to block off the street in such a way that some cars can run on Central or that there will be detours … “

According to a Municipal Development spokesman, the city would assist to protect those hosting and attending events.

Safety barricades, security personnel or an Albuquerque Police Department presence is being suggested.

The city would also work to alert and educate drivers passing by the festivities.

The Department of Municipal Development is working out the permitting process, including the cost and how the city might redirect traffic for these proposed events and pop-ups.

The city is hoping to have events and pop-ups by springtime.

It’s also looking at issuing temporary permits to businesses along Central so they can load and unload merchandise from the ART lanes.

COMMENTARY AND ANALYSIS

Growing up, I often heard parents say “Do not play in the middle of the street!”

This recent proposal of using the ART Bus platforms makes it appear that the Keller Administration wants us all to go play in the middle of the street.

At first blush, from a civil liability standpoint, it does not sound too bright using public mass transportation infrastructure in the very middle of the street for private businesses and functions, especially when the city says it will provide safety barricades, security personnel or an Albuquerque Police Officer.

Central is congested enough as it is with the bus stations, and added functions or businesses to them is nothing more than a lawsuit ready to happen, just ask any personal injury lawyer in the city.

Once the city assists to protect those hosting and attending events on the city owned and maintained platforms it is assuming an extent of liability if and when someone gets hurt.

Allowing unloading activities on dedicated bus lanes is probably just as illegal as to drive in them by crossing the double white lines and rumble strips as Keller argues.

Mayor Keller needs to cut our losses as best he can and scrap ART as much as he can wherever he can and business pop ups is not a solution, temporary as it may be.

The City has already completed and paid for all the construction and it will never recoup the estimated $110 million paid out, but would be wise not to spend another $25 million for the new buses ordered.

Mayor Keller has said that too much has been spent on the entire ART Bus project and it would be too costly to restore Central and to remove the platforms.

Keller has repeatedly suggested in public it would cost as much as $200 million to return Central to the way it was, a figure that is highly questionable, especially given the fact that it will eventually have to happen anyway.

What Keller apparently does not know or just chooses to ignore is that a traffic study of the project found that the project has a 20-year shelf life.

Because of projected population growth and traffic flows along Central, one lane each way, as opposed to the original two, the platforms will sooner rather than later have to be removed to accommodate the increased traffic.

Within 12 years the buses will have to be replaced.

In general, transit systems expect buses to have a useful life of 12 years or a little less depending on wear and tear and 250,000 miles.

The 12-year time frame is due to the fact that after buses have been used for 12 years, a city is eligible to receive replacement bus funding from the federal government.

Common sense dictates that the dedicated buses lanes for ART should be opened up for all traffic use and not any other function.

City Hall needs to rededicate the bus lanes for all traffic and do its best to restore Route 66.

The Keller Administration should explore if the center bus platform stops can be modified permanently with a totally new purpose and a permanent alternative found.

The platforms have utilities installed that could be used for other purposes.

Tearing down the ART Bus stop platforms would have too much of another negative impact on Route 66 businesses, and so will allowing “pop up” businesses to compete with Central store front businesses and parking.

Examples of new dedicated purposes for the platforms could be elevated landscaping with distinctive lighting fixtures or use the platforms for large sculptures that would commemorate Route 66.

Mayor Keller proclaimed the BYD Buses as unsafe at any speed but apparently feels it’s alright and safe to play in the middle of the street.

Dinelli Blog Articles On ART Bus Project Listed

Trump Scrambles To Find A Loyal Chief of Staff

Nick Ayers, the Chief of Staff to Vice President Mike Pence, was seen as the frontrunner to replace Trump’s departing Chief of Staff John Kelly.

https://www.apnews.com/7a5a0eb3f15c4f4a9f7fd34680c1bc68

White House officials were caught off guard when President Trump and Nick Ayers, whose selection by Trump was believed to be a done deal, could not come to terms.

Ayers turned down the job with Trump proclaiming they could not reach an agreement on his length of service.

Ayers and Trump had discussed the job for months.

Ayers had long planned to leave the administration at the end of the year.

Ayers was willing to serve in an interim basis through next spring.

Trump wanted a 2-year commitment and wants his next chief of staff to hold the job through the 2020 presidential election.

With Ayers out of the running, Trump is considering other candidates for the post.

Those being considered are Office of Management and Budget director Mick Mulvaney, Rep. Mark Meadows, a North Carolina Republican and the chairman of the House Freedom Caucus, Treasury Secretary Steve Mnuchin, U.S. Trade Representative Robert Lighthizer and former New Jersey Governor Chris Christie who ran for President against Trump.

Most of those under consideration are very happy with their present jobs

COMMENTARY AND ANALYSIS

It is obvious that Trump is scrambling to find another Chief of Staff, considered one of the most powerful positions in the White House.

Outgoing Chief of Staff John Keller was able to impose some discipline on the President and White House personnel, until he quickly got on Trump’s bad side.

The biggest problem is, can Trump find anyone within his own administration who is actually loyal to him, who does not think he is a “moron” as expressed by former Secretary of State Rex Tillerson or an “idiot” as expressed by John Kelly in private, and who does not think he has any business being President.

On September 6, 2018, The New York Times’s took the rare step of publishing an anonymous Op-Ed essay from a “senior White House Official” in President Donald Trump’s administration whose identity is known only to the New York Times.

The entire New York Times letter can be read hear.

https://www.nytimes.com/2018/09/05/opinion/trump-white-house-anonymous-resistance.html

The author wrote in part:

“many of the senior officials in [Trump’s] own administration are working diligently from within to frustrate parts of his agenda and his worst inclinations. I would know. I am one of them.”

The letter talks about the bright spots and accomplishments of the Trump presidency as “effective deregulation, historic tax reform, a more robust military and more. … But these successes have come despite — not because of — the president’s leadership style, which is impetuous, adversarial, petty and ineffective.”

Notwithstanding, the author of the letter wrote that Trump is amoral.

It was stunning that a senior official for the President of the United States would say:

“The root of the problem is the president’s amorality. Anyone who works with him knows he is not moored to any discernible first principles that guide his decision making. … Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. … the president’s leadership style … is impetuous, adversarial, petty and ineffective. … Meetings with him veer off topic and off the rails, he engages in repetitive rants, and his impulsiveness results in half-baked, ill-informed and occasionally reckless decisions that have to be walked back. There is literally no telling whether he might change his mind from one minute to the next.”

At the time the New York Times letter was published, Vice President Pence’s Chief of Staff Nick Ayer’s was viewed as the biggest suspect as the one who wrote the letter.

The rationale for the New York Times keeping the author of the letter anonymous was that the person’s job would be jeopardized by disclosing who wrote it.

The use of the term “Senior Official” was no doubt carefully chosen by the New York Times.

The term Senior Official could mean a Cabinet Secretary, a Deputy Secretary, a member of the National Security Council or for that matter a high-ranking speech writer or press relations person.

Some news media outlets went so far as to suggest that Vice President Michael Pence, Pence’s Chief of Staff Nick Ayers, Director of National Intelligence Dan Coats, and Homeland Security Secretary Kirstjen Nielsen wrote the letter, and all denied it at the time.

https://www.vox.com/2018/9/6/17826830/new-york-times-trump-official-anonymous-oped

It is obvious who ever in fact wrote the piece is articulate, knows how to write an op ed piece, has dealt with the New York Times in the past and had the ability to get it to the paper on their own without having to use an assistant or secretary and was able to secure a commitment from the paper not to release their name.

Washington Post’s sources called Trump’s reaction to the letter as “volcanic,” and news agency Politico source said the White House went into “total meltdown.”

https://www.vox.com/2018/9/6/17826830/new-york-times-trump-official-anonymous-oped

Trump went on the rampage to find out who the writer was, using the word “treason”, but he never found out who wrote the letter.

Treason is not an act against a President, but against the Country.

Trump’s use of the word “treason” shows just how ignorant he is of our United States Constitution which defines “treason” as acts of a citizen leveling war against the United States or adhering to enemies of the United States and giving aid or comfort the enemies of the United States. (See Constitution of the United States, Article 3, Section 3).

It is clear that the American public elected someone who is emotionally unstable and not mentally nor morally fit to be President of the United States.

It is at the point that Trump has now done more damage to this country as well as his own party than anyone could have ever dreamed or imagined.

It may take years as was the case with “Deep Throat” who brought Richard Nixon down, but I have no doubt the American Public will learn one day who the anonymous writer is.

Nick Ayers probably feels he will be Chief of Staff soon enough once Trump is force from office and is gone and Mike Pence becomes President.

Any one who does not think things will get any worse is kidding themselves and Nick Ayers and others within his own administration are betting on it.

“Mobocracy” Threatens Freedoms; Judges Cannot Be Politicians In Black Robes

Judge Daniel E. Ramczyk is a judge of the Bernalillo County Metropolitan Court.

Judge Ramczyk was appointed to the Bernalillo County Metropolitan Court in April 2003 and was elected in 2004 and has been retained by voters through all elections since.

His prior work experience includes service as an assistant district attorney, assistant city attorney, and several years in private practice.

He serves as a criminal judge and also presides over the Competency Court.

He received his undergraduate and, in 1983, his law degree from the University of New Mexico.

GUEST EDITORIALS

On September 7, 2018 and December 7, 2018, the Albuquerque Journal published guest editorials written by Judge Ramczyk.

The opinions expressed in both letters are solely those of Judge Ramczyk individually and not those of the entire court system.

Both articles are insightful and give a very rare glimpse to the public of what Judges are required to do in performing their judicial duties.

Both letters merit a read by any one concerned about New Mexico’s Judiciary.

Following are the articles with the Journal links.

September 7th, 2018

JUDGES CANNOT BE CONCERNED WITH POPULARITY

“Catch-22 — a situation presenting two equally undesirable alternatives.”
Merriam-Webster

Consider the following hypothetical:

A man commits a horrific murder. A murder weapon undeniably proves his guilt. The weapon, however, is seized without a valid search warrant. The man moves to suppress the gun as evidence. With the gun, the state can convict. Without it, it cannot. The so-called “exclusionary rule” requires the presiding judge to suppress the evidence. The man walks free. The public is outraged. Not at the man who committed the murder. Not at the circumstance which warranted suppression. The public is outraged at the judge.
Sound familiar?

Judges find themselves in Catch-22s throughout their careers. If a judge refuses to follow the law, a higher court can remove that judge from the bench. However, if a judge does apply the law and angers constituents, that judge also can be removed from office either by election or recall.

What’s a judge to do?

When I was appointed to the Metropolitan Court bench in 2003, I took the following oath:

“I, Daniel Ramczyk, do solemnly swear that I will support the Constitution of the United States and the Constitution and laws of the state of New Mexico and that I will faithfully and impartially discharge the duties of the office of Metropolitan Court Judge, Division XII, Bernalillo County.”

I must enforce laws passed by the New Mexico Legislature, follow appellate decisions handed down by higher courts, and comply with the rules and orders issued by the New Mexico Supreme Court.
Going into this job, my eyes were wide open. I realized inevitably and probably more than once I was going to render a decision that would be unpopular to my constituents but was required by my oath. No wiggle room. No ifs, ands or buts. I must honor my oath. Period. End of story.

Any judge who reacts and responds to public sentiment when it violates his or her oath of office essentially is supporting a mobocracy form of government.

Mobocracy is defined as rule or government by the mob or the masses. A mobocracy attempts to intimidate legitimate government authority. Think Salem witch trials. The lynching of black Americans following the American Civil War. Think McCarthyism. Mobocracy is synonymous with chaos, destruction and loss of freedoms.

A mobocracy might be darkly satisfying to some people when they are members of the mob du jour. But what happens when any of them suddenly are the individual whom the mob is persecuting? They will be the first to insist upon the protection of their individual constitutional and legal rights. And who will they rely upon? The courts, of course.

Though a judge should not allow public sentiment to influence his or her legally mandated decisions, judges nevertheless should avoid adding fuel to the fire of a mobocracy.
I need to explain all my decisions clearly and cite those laws and rules upon which I rely. Then, if people are upset with my decision, they at least know to whom to petition for a change. Perhaps the Legislature needs to change a law. Maybe the Supreme Court needs to modify or strike a rule of procedure.

This is key. Shooting the messenger solves nothing and changes nothing.

I also need to avoid the appearance of being insensitive to the concerns of the people I serve. I have a responsibility to remain informed as to serious issues in my community and to find solutions within the parameters of my duties as a judge. Acting as though I am above and beyond of what people think will invite disrespect for the courts. I should never let this happen.
And finally, if I make a mistake, I have a duty to change my decision. If I make a bad decision, I should not dig my heels in and try to justify that which cannot be justified. I am human. When I am wrong, I must admit and fix it.

In the final analysis, serving as a judge is extremely challenging because the next decision I make may mean the end of my judicial career. That is the stark reality for people in my profession. But the focus of my job as a judge has never been about keeping my job as much as doing my job.

https://www.abqjournal.com/1217925/judges-cant-be-concerned-with-their-popularity.html

Friday, December 7th, 2018

JUDGES ARE NOT POLITICIANS IN BLACK ROBES

“Judges and politics don’t mix. Everyone believes that.

But why?

In a word? Impartiality.

The essence of the judicial branch is to provide an impartial forum to parties embroiled in a dispute. Judges resolve disputes, both criminal and civil, by determining the truth and then applying the law. This process guarantees justice for all.

Politics, however, is about amassing power and influence through promises and engaging in quid pro quo. The leaders of our executive and legislative branches obtain power directly through this Machiavellian process. Politics, by its nature, is not designed to ensure justice and equality for everyone. Indeed, to the victor goes the spoils.

So it is indeed refreshing, not to mention vital, to have a major branch of government that serves everyone from the standpoint of truth and justice.

Unfortunately, there is a public perception in our country today that the judicial branch is becoming just as political as the legislative and executive branches. Today, people seem to believe that judges’ decisions are based upon political party affiliation and beliefs. Also, some people have opined that judicial campaigns force judges to “sell” their impartiality.

I disagree with both propositions.

My own experience on the bench has convinced me that a judge’s political beliefs prior to becoming a judge do not ultimately influence his or her legal decisions. Call me naïve, but I believe judges who take the oath of office understand the seriousness and gravity of the oath – and honor it. Upholding the Constitution and the laws of the land takes priority over previously held political beliefs. Judges bend over backward to enter fair and impartial decisions.

Insofar as political campaign donations are concerned, judges are not allowed to accept contributions directly. Instead, judicial candidates must appoint treasurers, who create a firewall between the judges and the donors. Ideally, the identities of the donors are never known to the judicial candidate. And if there ever is an appearance of impropriety, a judge must recuse himself from a case. If the parties have a problem with a judge, they, too, may motion for an excusal.

Finally, everything we judges do is in public and on the record. Every single decision we make must be supported by facts and law and must be recorded. Corruption, bias and political prejudice cannot survive the level of public scrutiny which judges face every day.

And, yet, the perception persists that politics have permeated and are corrupting the judicial branch of government. I believe the perception stems, in part, from the growing cynicism the average American has of anything government-related. And part of the perception is related to the never-ending saturation of sensationalistic “news” spewed forth to the public through the internet. Everyone and everything, including judges, are under attack. As they say in the news business, “if it bleeds, it leads.”

Reasons for the perception notwithstanding, I believe that judges can take certain steps to avoid the perception of themselves as politicians. Personally, I never place bumper stickers of any kind on my car, I never place political signs in my yards, and I never discuss politics with people. I never support or oppose any political candidate or elected official. I do not praise, criticize or otherwise comment on a political candidate or elected official. I do not participate in, contribute to or attend political events.

Most importantly, I always explain the reasons for my decisions at length in the courtroom.

Former United States Supreme Court Justice Sandra Day O’Connor once stated that “the legitimacy of the judicial branch rests entirely on its promise to be fair and impartial.”

Think about it. The executive branch of government has the power of the military. The legislative branch has the power of the purse strings. And the judicial branch? All it has to back up its decisions is its integrity. If judges lose the appearance of integrity, then they will lose the legitimacy of their decisions and will be viewed as just politicians in black robes. And then our third branch of government will become powerless.

As someone who has given his all to supporting the integrity of the bench, I have to believe that I am a typical judge and that our judicial branch of government is healthy and will endure.
… .”

https://www.abqjournal.com/1254750/your-judges-are-not-politicians-in-black-robes.html

DINELLI COMMENTARY AND ANALYSIS

All State of New Mexico Judges are strictly prohibited by the Code of Judicial Conduct from holding any elected or appointed positions in political parties.

All State Judges are strictly prohibited from endorsing any candidate for office and cannot solicit donations for elections.

Candidates running for Judge must have a confidential finance committee set up to raise money for them, the committee is prevented from disclosing to the judicial candidate names of donors to prevent the Judges from knowing who donated to their campaigns to avoid the appearance and accusation of giving preferential treatment in decisions rendered.

A Judge is also prevented by the Code of Judicial Conduct from making “extrajudicial comments” to the media or groups that may reflect on their fairness and impartiality.

Judges are prohibited from defending their decisions and sentencings and their job performance in a public forum outside of their courtrooms so criticizing judges is like “shooting fish” in a barrel.

Going after and complaining about elected judges for their rulings and decisions is a very popular thing to do especially by those running for office.

As practicing attorney for over 40 years, including 7 years as a Workers Compensation Judge, I have seen firsthand how lawyers and parties can react and even carry a grudge when they disagree with a ruling, now matter how sound the ruling is based on fact and the law.

Attacking and criticizing Judges to garner votes and “gin up” a political base has become a tried and true tactic of way too many politicians.

“Judicial activism” is always a favorite term used to criticize judges.

Judicial activism refers to judicial rulings that are based on personal opinion, rather than on existing law, and calls into question a judge’s fairness and impartiality.

Judicial activism usually is used to advocate for judicial restraint in controversial political issues such as abortion, civil rights and campaign finance reform.

Attacking any Judge for a decision made all too often is a red flag of ignorance of our criminal and civil justice system or even worse pandering to appeal to people’s worst fears to get votes or lying to the public.

Mayor Keller Better Late Than Never On ART Politics

On Friday, December 7, 2018 Mayor Tim Keller held a press conference and announced the city is taking legal action against the California based BYD bus company, the manufacturer of the 60-foot, fully electric buses for the disastrous $135 million ART Bus project and making good on a threat of litigation.

https://www.abqjournal.com/1254901/city-sues-over-art-buses.html

The lawsuit has been filed in 2nd Judicial District Court in Albuquerque and claims breach of contract, breach of warranty, fraudulent and negligent misrepresentation and violations of New Mexico Unfair Practices Act.

The New Mexico Unfair Trade Practices Act is usually enforced by the New Mexico Attorney General’s office, but the act does provide for private remedies which do extend to municipalities.

The significance of an Unfair Trade Practices action is that an aggrieved party can be awarded “triple damages” proven and attorney fees under the act.

The 15 buses that were manufactured and delivered were picked up by BYD after the city made a demand of the company to take back the buses due to a significant number of safety and battery-life issues.

The city demanded the buses be taken back by November 30, 2018.

During his press conference announcing the city’s action Keller had this to say:

“The short story is we’re taking BYD to court. … We need to hold … [BYD] accountable for what they’ve done to our city and for their lack of adherence to a contract that they signed. … We think … this actually is going to all wash out at a minimum, if not us actually recouping more. … For a city of our size, the pain that we went through and the trauma that Route 66 has gone through to put this in, was that worth being the first city to have these fancy electric buses? … I don’t think so.”

On the same day as the filing of the lawsuit, the city released an independent report by the Center for Transportation and the Environment (CTE) which tested the buses’ batteries.

In a news release, the Keller Administration had this to say about the CTE report:

“CTE’s simulations found that the operational plan developed for ART – running the electric buses during the day, then recharging them overnight in preparation for the next day, could not be achieved by the buses BYD delivered to Albuquerque.”

In response to the filing of a lawsuit by the city, BYD issued a statement that it was “considering all legal options in response to the City’s actions”, which means a counterclaim, and proclaimed:

“BYD once again disputes the Mayor’s false and misleading statements regarding BYD and its products … It is unfortunate that the City has chosen to file a lawsuit. Prior to today’s press conference the City had refused to provide BYD with inspection reports documenting alleged problems with the buses. The City has never stated the amount of damages it claims to have suffered.”

The city has also ordered 10 diesel buses made New Flyer that have a price tag of $870,000 apiece to replace the BYD buses.

The new buses are expected to arrive in 2019, but Keller had previously stated it would take upwards of 18 months.

Among the reported problems found with the BYD buses are:

1. The center and rear brakes had zero air pressure, yet the 60-foot-long articulated buses were able to move, meaning that the center and rear axle brakes were not working and the buses were relying on their front brakes alone.
2. Rear doors would open during bus operation without any action by the driver.
3. The buses have air conditioning outages.
4. Bolts flying off doors.
5. The electric buses delivered are supposed to operate for 275 miles, but city officials found the buses cannot go more than 177 miles before they need recharging.
6. The lack of undercarriage protection.
7. Buses that wouldn’t stop when emergency doors were utilized.
8. Cracking on bus exteriors.
9. Mirrors not set up correctly.
10. Wiring problems and electrical system problems.
11. The handicap electric chair lock becoming unsecured when the driver turns on the air conditioner.
12. The bus batteries heat up so much that they can’t take a charge.
13. The batteries or not properly stored or cooled on the buses posing a fire hazard. 14.Wheelchair ramps that deploy when weight is on them
14. Doors that open while the bus is in motion.
15. Exposed high-voltage wires.
17. Failure to construct extra charging stations promised.

ANALYSIS AND COMMENTARY

In announcing that the city was filing the lawsuit for damages in State Court, Mayor Keller said in part:

“For a city of our size, the pain that we went through and the trauma that Route 66 has gone through to put this in, was that worth being the first city to have these fancy electric buses? I don’t think so.”

How pathetic that Mayor Tim Keller uses opportunistic references to Route 66 and only now admits the damage done to the historic road in an effort to distance himself from his own failure to act for well over a year.

Keller made no mention of the pain Federal litigation caused to the 250+ businesses along Central with many of those businesses having to close or going out business because of ART construction.

During his year and a half quest to become Mayor of Albuquerque, Tim Keller never called upon his predecessor to stop the ART Bus project, nor to cancel the bus contract nor did he ever condemn it as destroying historical Route 66.

Tim Keller did not attend a single public hearing or meeting held by the Berry Administration on the project, including the meetings hosted by city councilors where councilors were urged to place it on the ballot.

When the federal lawsuit was filed to enjoin and stop the construction of ART, Keller did not attend any of the federal court hearings to stop the project.

Keller is given some credit for his efforts to secure the grant from the Federal Transportation Administration, but he and his predecessor always said the money was inevitable.

Mayor Keller has said that too much has been spent on the entire ART Bus project and it would be too costly to restore Central and to remove the platforms.

Keller has repeatedly suggested in public it would cost as much as $200 million to return Central to the way it was, a figure that is highly questionable, especially given the fact that it will eventually have to happen anyway.

What Keller apparently does no know is that a traffic study of the project found that the project has a 20-year shelf life.

Because of projected population growth and traffic flows along Central, one lane each way, as opposed to the original two, the platforms will sooner rather than later have to be removed to accommodate the increased traffic.

Within 12 years the buses will have to be replaced.

In general, transit systems expect buses to have a useful life of 12 years or a little less depending on wear and tear and 250,000 miles.

The 12-year time frame is due to the fact that after buses have been used for 12 years, a city is eligible to receive replacement bus funding from the federal government.

Keller has now wasted the first year of his 4-year term by failing to be decisive and trying to save the project by giving BYD the benefit of the doubt in their ability to deliver the buses.

For ART under Keller see postscript below.

It is almost a sure bet that BYD will now file a counterclaim against the city for damages.

It is likely that BYD will attempt to have the case moved to federal court because they are a California based company, the buses were manufactured in California and the buses were funded by a federal grant from the Federal Transportation Administration mandating certain specifications.

You can also anticipate that former Mayor Richard Berry, former Chief Operations Officer Michael Riordan and former Transit Director Bruce Rizzeri will probably have to be named “necessary and proper parties” in a BYD counterclaim in that all 3 were involved with the selection of BYD and there will be a need to determine what was represented to them, what they agreed to and what was expected of BYD.

Mayor Keller proclaims “We need to hold … [BYD] accountable for what they’ve done to our city … .”

When Tim Keller was New Mexico State Auditor before becoming Mayor, he was a champion for accountability to stop “waste, fraud and abuse of taxpayer money”.

As State Auditor, Keller seemed never be reluctant to turn cases over to prosecuting agencies which garnered him much publicity

Keller’s reluctance now that he is Mayor to turn the City Audit and the ART Bus project to prosecuting agencies such as the Attorney General or the District Attorney is very puzzling.

Those truly responsible for ART are the ones that need to be held accountable for “what they have done to our city”, namely former Mayor Richard Berry, former Chief Operations Officer Michael Riordan and former Transit Director Bruce Rizzeri.

A breach of contract action by the city against the bus manufacture will not approach the real financial losses involved with the project to the city, let alone bring back those businesses along central that had to close all because of the construction, that is why an Unfair Trade Practices action is so critical.

What many taxpayers feel is that crimes occurred with the ART Bus project, but we will never know because no law enforcement agency has investigated it.

The city will now waite 30 days after BYD is served with complaint to find out about a counterclaim will be filed.

Taxpayers can expect lengthy litigation, but there is always the prospect that the City Attorney’s Office and Mayor Keller will just roll over and settle the case for a nominal amount on a $25 million dollar breach on contract case and not seek all the damages to which the city is entitled to under the law.

Keller supporters are always quick to go to his defense over ART saying it was a project he inherited.

No matter what Mayor Keller says or does now, no matter what eventually happens with the ART Bus Project and the litigation, it is now Mayor Keller’s lemon to own and be held responsible and accountable for his failure to act given his reluctance to scrap the project from the get-go.

In politics of ART, better late than never to try and sound good by finally making a right decision even though all the damage has already been done.

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POSTSCRIPT OF ART UNDER KELLER

The $135 million ART Bus project was considered a legacy project of former Mayor Richard Berry and spans 9 miles of Central Avenue from the West side to Louisiana with dedicated bus lanes and specially built platforms to transform the Central corridor into a Rapid Transit area.

CHRONOLOGY OF ART UNDER KELLER

Berry dedicated the ART Bus project in November of 2017 as fully operational with only one bus that had been delivered to this city.

The only purpose for the delivery of the one bus was so that Berry could have his photo op before he left office.

Keller was sworn into office December 1, 2017.

For over a full year, Mayor Keller and the Keller Administration have been working on resolving major issues with the ART Bus project and bus performance.

Within 6 weeks after taking office, Keller proclaimed the project “as bit of lemon” but pushed forward to try and salvage the project anyway.

http://www.petedinelli.com/2018/01/10/this-project-is-a-bit-of-a-lemon/

In January of this year it was recommended to Mayor Tim Keller and the City Attorney to file a civil complaint city for breach of contract, breach of warranties, misrepresentation and unfair trade practices and Keller declined the suggestion.

Two months after taking office, Mayor Keller was urged by many within the community to scrap the project and find alternatives, but he refused saying it would be too costly.

http://www.petedinelli.com/2018/01/22/mayor-keller-should-scrap-art-bus-project-and-find-alternatives/

In June of this year, Mayor Keller said the buses were like kids in a divorce where parents are fighting for who gets custody.

http://www.petedinelli.com/2018/06/04/want-a-divorce-hire-a-lawyer/

On June 6, 2018, the city of Albuquerque’s Inspector General (IG) issued a report on the ART Bus Project.

According to the Inspector General’s report the first bus delivered in August 2017, was assembled by the manufacturer using a “frame intended for buses being built for [another city’s transit authority].”

Frames intended for the Albuquerque’s buses had not yet been shipped nor received by the manufacturer.

The Inspector General found that the bus manufacturer used “parts and pieces” intended for another city’s buses for the first ART bus delivered.

The last 4 sentences of the 72-page Inspector General’s findings and report is worth quoting relating fraudulent activity:

“The inspection was proactive in nature and not due to any allegations that were made. While this inspection didn’t identify instances of fraud, it is important to note that it doesn’t mean fraud did not occur. The inspection did identify several problems that offer opportunities to improve and could be vulnerabilities for fraudulent behavior. City leaders should consider the problems identified and recommendations made to develop a more efficient and stronger procurement process that will help prevent and deter fraud, while also ensuring more quality and confidence in the products and services that the taxpayer funds. This is essential to protecting the public’s trust.”

One question Mayor Keller was asked during one of his many the status conference after the Inspector General’s Report is if any attempt will be made to hold former Mayor Richard Berry accountable for the ART Bus Project given that he rushed to have buses delivered to dedicate the project before he left office.

Keller laughed off the question and declined to answer.

After the Inspector General’s report was released, Mayor Keller was urged turn the ART Bus project over to the City Attorney, the New Mexico Attorney General and the District Attorney, to investigate for criminal activity but Mayor Keller declined to make the referral.

http://www.petedinelli.com/2018/06/11/give-art-work-to-city-attorney-nm-attorney-general-and-district-attorney/

On November 1, 2018, Keller proclaimed that the buses delivered were “unsafe at any speed”, demanded the manufacture pick up the buses and he threatened litigation by the city.

http://www.petedinelli.com/2018/11/02/keller-new-art-buses-unsafe-at-any-speed/

On Tuesday, November 13, 2018, Mayor Tim Keller held a press conference to announce the city’s plans to cancel the manufacturing contract with Build Your Dreams (BYD).

http://www.petedinelli.com/2018/11/19/when-you-hire-a-lawyer-you-keep-your-mouth-shut-depose-berry-riordan-rizzieri-on-art-bus-project-under-oath/

On November 28, 2018, it was reported that all 15 of the BYD buses were picked up by the manufacturer.

https://www.kob.com/albuquerque-news/art-buses-sent-back-to-manufacturer/5160241/

https://www.krqe.com/news/albuquerque-metro/bye-bye-buses-art-vehicles-leave-albuquerque/

For more articles on ART, see the below link:

Dinelli Blog Articles On ART Bus Project Listed

ALB’s 2019 NM Legislative Priorities

On December 3, 2018 by a news release, Mayor Tim Keller announced his administration’s priorities for the 2019 New Mexico legislative session.

The priorities focus on five major areas: public safety, homelessness, children’s issues, job creation and infrastructure updates.

Keller is quoted as saying in the news release:

“We know that as New Mexico’s largest city Albuquerque has the potential to impact the rest of the state. With this legislative agenda, our city can help lift up the entire state by tackling crime from all sides, increasing economic opportunity, addressing homelessness and stepping up for our kids. We’re setting our sights on tangible projects that can make a real difference in our communities.”

Following is a listing of the legislative priorities by topic:

1. PUBLIC SAFETY

• Improved radio technology for better coordination between all emergency service providers in Albuquerque and the surrounding area
• DNA processing automation to help resolve the rape kit backlog and ensure timely processing
• Dedicated funding to support public safety, and infrastructure and equipment needs
• Money for electronic gunshot detection
• More support for the APD Gun Intelligence Center to solve gun-related crimes
• Updates to the police academy to better equip officers for community policing
• Anti-auto theft technology money to reduce and better solve auto theft crimes.
• Bunker gear to prevent risk of contracting cancer among first responders

2. JOB CREATION

• First phase of redevelopment at the Rail Yards
• Adding Balloon Fiesta Park access improvements
• Roadway improvements at Central and Unser
• Increasing job training funding for the film industry through JTIP
• KiMo Theater repairs to support Albuquerque’s creative economy.
• Full funding for Local Economic Development Act so that the city can expand economic opportunities

3. CHILDREN’S ISSUES:

• Money for two new child development centers on the West Side
• More support for pre-K programs
• Public library in the International District

4. HOMELESSNESS

• Operating funds for expanded hours of operation for a 24/7 emergency shelter with crisis triage support
• Construction of two centrally located shelter facilities with onsite supportive services

5. INFRASTRUCTURE UPGRADES

• ADA updates to sidewalks and intersections throughout Albuquerque
• Animal welfare upgrades

https://www.cabq.gov/mayor/news/mayor-tim-keller-outlines-priorities-for-2019-legislative-session

ANALYSIS AND COMMENTARY

This will be Mayor Tim Keller’s second New Mexico legislative session and it will be a sixty-day session.

January 1, 2019 will not only be the beginning of a new year, but also the first day of work of our new Governor.

The biggest and most significant difference is that New Mexico Governor Michelle Lujan will be in charge and the Democrat Majority in the house has increased substantially.

Further, it is being projected that upwards of $2 billion additional monies will be available thanks to the oil and gas revenues.

This will probably be the first time in 8 years that we will not see an “all crime all the time” legislative session.