Will Congressional Delegation Bail Out Berry On ART?

I wish our congressional delegation would be far more upfront with the fact that it is not likely we are going to see any money from the Federal Transportation Administration (FTA) for the ART Bus project.

Trump’s proposed 2018 federal budget, which was released March 16, 2017, does not contain the $69 million Federal Transit Administration grant the mayor and his staff have said repeatedly is coming.

Over 20% of the ART bus project is complete and construction should be finished sometime October.

The Albuquerque City Council refused to put the project on the ballot and voted to fund the construction without having the money from the Federal government.

U. S. House and Senate conference committees have recommended a $20 million cut in Albuquerque’s Grant under the 2017 Obama budget and funding has not been approved.

Officials at the FTA said that if ART does not appear on the current list of “fully funded” projects, it’s won’t get any more federal money, and Albuquerque’s ART Project does not appear on the list of “fully funded” projects.

Yet Mayor Berry still thinks all the federal money will be forthcoming.

Berry claims the plans are to complete the ART Bus project by the end of the year and then to get reimbursed with the approval of the $69 million dollar FTA grant by Congress.

Mayor Berry says he has great confidence in our congressional delegation to get the federal funding for the project.

Rep. Michelle Lujan Grisham comments to Channel 4 were not very reassuring about the ART Bus project funding when she said “We do not want the city to be in a situation that passes along its projects holes right or budget deficit to consumers … We’re going to have to figure it out, but until I get that budget in front of me with the details, I can’t really tell you exactly what’s going to hold and what isn’t … I don’t see any indication we’re trying to remove that infrastructure projects from their current commitments. … [The passage of the omnibus funding bill will] affirm all of those expenditures in this current fiscal year [and] in that context, I’m not as worried that the president’s budget for FY18 doesn’t specifically have that funding.”

(See “Congressional delegation address questions about ART” http://www.kob.com/albuquerque-news/congressional-delegation-address-questions-albuquerque-rapid-transit-project-art-michelle-lujan-grisham-ben-ray-lujan-steve-pearce/4450833/?cat=500)

Representative Steve Pierce likewise was not so reassuring about the ART Bus project funding when he said to Channel 4 “The president’s budget is just the beginning point … So we’ll actually go to work in the house and we’ll create the real budget, so you can just take that as an advisory position from the President.”

Rep. Ben Ray Lujan said “There’s no certainty with what this administration will do or how the Republican congress will respond.”

Now that Congresswoman Michelle Lujan Grisham is running for Governor, why should she even lift a finger or bother to help bail out Republican Mayor Berry on the ART bus project other than to make sure City voters do not have to pay for Berry’s mistake.

Berry just may be Michelle Lujan Grisham’s Republican opponent for Governor and she will need to remind voters how Mayor Berry crammed the ART bus project down our throats without a public vote to benefit all his construction buddies who no doubt will be contributing to Berry’s Governor’s race.

Why should Republican Congressman Steve Pearce lift a finger to help Republican Mayor Berry when they too may be facing off for the Republican nomination for Governor.

Pearce openly supported President Donald Trump, while Mayor Berry did not even bother to attend the Trump rallies in Albuquerque.

The City Council voted to spend the federal funding for the project before it has been received and the Berry City budget submitted for the 2017-2018 fiscal year starting July 1 has no money set aside in reserves in the event the federal funding is not approved by Congress.

I really do hope Berry runs for Governor so he can be held accountable for the ART Bus project and the destruction of the Albuquerque Police Department (APD).

The “No Bond Rule” Requires Clear and Convincing Evidence (Updated)

Attorney General Hector Balderas is now getting into the fray and supporting Bernalillo County District Attorney Raul Torrez position that District Judges are demanding too much evidence before holding alleged dangerous defendants in jail without bond prior to trial. (See April 10, 2017 Albuquerque Journal page A-1, AG supports DA in no-bail jail dispute; Amendments roll out has sparked conflict between judges and prosecutors.”)

District Attorney Torrez is requesting the New Mexico Supreme Court for guidance to the implementation of the constitutional amendment allowing pre-trial detention without bond.

The Attorney General’s action is not at all surprising and a little bit self-serving both politically and work load wise.

Politically, it is easy to get attention and garner public favor criticizing judges for not doing their jobs and letting felons out on the street knowing full well judge’s are restricted by the Code of Judicial Conduct from making public comments on pending cases and must be fair and impartial in their rulings.

From a work load stand point, the Attorney General handles all appeals in criminal cases for District Attorney’s, so if there are more appeals on “no bond” cases, the Attorney General’s workload increases.

What Torrez and Balderas just may get from the New Mexico Supreme Court is an admonishment telling them both to do their jobs and meet their burden of proof under the law.

The “no bond” amendment approved by voters states “bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.”

The “no bond” rule is very clear and unambiguous.

The “no bond rule” requires a court hearing and evidence to be presented.

The right to a reasonable bond pending a trial to guarantee appearance at trial and prevent a person from fleeing is also a critical right.

No judge can set bail amounts that are so unreasonably high to prevent a defendant from posting bail solely because of their financial inability to post the bond.

The “no bond” rule is not meant to be a circumvention of our constitutional rights.

“Presumption of innocence” and “due process of law” are two of our most critical rights guaranteed under our constitution.

These two constitutional rights offer all of us protections against overzealous prosecutors and overzealous law enforcement officials.

Our New Mexico Judicial system is replete with many cases where people have been falsely charged, unable to make high bonds pending trial for extended periods of time, only to be found not guilty at a later date or released because of lack of evidence, with those same accused walking away with large settlements or judgments against the City or State.

Not too long ago in Albuquerque, two traveling salesmen were accused of raping and murdering a prominent elderly couple in their Northeast heights home, the Defendants were held in jail for over a year pending a trial and unable to make bond.

The two defendants were later released because the two murders were confessed to by another and the two wrongly accused sued and walked away with a large judgement against the City.

In another Albuquerque case, a Defendant was charged with raping and murdering an 11 year old, held in jail for over a year unable to make bond, and the defendant was later released because of DNA evidence.

Once again, the falsely accused defendant sued and walked away with a million dollar plus settlement.

Judges cannot make rulings based upon emotions, inflammatory accusations, public outcry’s and publicity generated by heinous crimes.

Under the “no bond” rule, judges need to have evidence to “hang their hats” on to have their rulings sustained and upheld on appeal.

District Attorney Raul Torrez claims that District Judges are asking for “mini-trials” and that Judges won’t accept written criminal complaints by law enforcement officers as sufficient evidence to hold someone without bond.

The hearings required under the “no bond rule” are not “mini-trials” to determine guilt or innocence but a presentation of evidence.

The Attorney General and the District Attorney’s office do not want to be required to offer any clear and convincing evidence that no release condition exist to protect the public as required by the “no-bond” rule.

Ostensibly, both the Attorney General and the District Attorney want to be allowed to offer only pleadings and accusations such as criminal complaints filed with the court.

A criminal complaint is not a conviction, is not clear and convincing evidence, but merely an accusation of probable cause that must be proven in court to get a conviction.

The new “no-bond” rule requires prosecutors to present supporting evidence that shows there are no reasonable release conditions that will protect the public.

Testimony from investigating officers as to the violent nature of the allege crimes committed and even testimony from the victims and injury inflicted could easily be offered to the court.

Probation officers for those charged and who are familiar with the charged defendants could also be called to testify as to the violent propensity of a defendant and past conduct.

I suspect that the New Mexico Supreme Court will rule that the Attorney General’s office and all District Attorneys in the state need to step up their game, do their jobs, and present clear and convincing evidence to the courts to allow the courts to find a charged defendant is a danger to the public and to issue a “no bond” hold until trial.

Turn That Tank Turret Around and Aim for the Vault

UNM Athletic Director Paul Krebs has a striking facial resemblance to the German Tiger Tank Driver in the classic movie “Kelly’s Hero’s” starring Clint Eastwood, Donald Sutherland and Telly Savalas.

In the movie, three ranking army soldiers, along with their men, went rogue and robbed a bank behind German enemy lines where the Germans had stored tons of gold.

A classic scene is when the three soldiers approached the German Tiger Tank protecting the bank and convinced the tank commander to turn his tank’s cannon turret on the city bank and blast a hole in the vault and help them steal the gold inside in exchange for a share of the gold.

The Tiger Tank Commander knew that the war was lost, so he blasted the vault and walked away with his share of the gold.

UNM Athletic Director Paul Krebs probably knows many of UNM’s athletics programs are lost and are coming to an end.

Krebs now blasts a hole in a contract he was responsible for negotiating and takes money from the university bank vault to buy out yet another contract for $1 million.

It has been confirmed that the University of New Mexico will pay fired basketball coach Craig Neil $1 million to buy out the remaining 3 years of Niel’s contract.

The buyout will be paid in 24 monthly installments. (See April 6, 2017 Albuquerque Journal article “UNM has game plan for Neal buyout; Athletic department plans job cuts, potential naming rights deal to help balance budget”)

Krebs is paid $319,262 as UNM Athletic’s Vice President and has been on the job for 11 years.

During his tenure, Krebs has fired and bought out the contracts of football coaches Rocky Long, Mike Locksley and basketball coach Richie McKay, and the programs are still loosing money.

Krebs also could not convince basketball coach Steve Alford to stay and Alford went on to coach UCLA.

Virtually all the UNM athletics programs are operating in the “red”.

The UNM athletic department finished 2016 with a $1.5 million loss and it was the seventh (7th) deficit in the past nine (9) years.

When the UNM Athletic department runs a deficit, the university must cover it and is supposed to be paid back by the athletic department.

Last year’s Athletic Department’s $1.5 million dollar deficit was covered by the University and it remains to be repaid.

It is projected that the Athletic Department will have $444, 607 deficit while UNM is struggling with reduced revenues, reduced funding and budget cuts.

No doubt Paul Krebs will expect to be paid in full his $319,000 + salary despite UNM’s financial problems.

When will our UNM Board of Regents wise up and find someone who can attract, find and keep good coaches?

Just as important, when will the UNM Board of Regents hold Paul Krebs responsible and find someone else who can turn all our athletics programs around?

Sooner or later, if not already, the UNM bank vault will be empty of its gold, but Paul Krebs no doubt will walk away with his share.

Jumping For Joy

US Attorney Jeff Sessions has announced plans in a memo made public that the Department of Justice will be reviewing all existing consent decrees involving police reforms, which includes Albuquerque and APD’s consent decree. (See April 5, 2007 Albuquerque Journal, page A-1, “AG planning review of police reform projects.”)

According to Attorney General Sessions, the Department of Justice will be reviewing collaborative investigations and prosecutions, law enforcement task forces and “other Justice Department” activities, which are issues addressed in some form or another in the APD’s consent decree.

According to the Session’s memo, the goal of the Justice Department is to make sure the agreements align with the Trump Administrations goals and principals which include improving officer safety and morale, ensuring public safety is an honorable career, fighting crime, and promoting civil rights.

I suspect Mayor Berry, Chief Gordon Eden and the APD command staff are privately jumping for joy over Session’s announcement and they see it as an opportunity to get out from under the consent decree and the agreed to mandated reforms.

Mayor Berry in characteristic style puts a positive and false spin on the news that the Department of Justice will be reviewing Albuquerque’s consent decree saying Albuquerque is committed to the reforms and “I think we have something to show for it but nobody on my administration is saying Mission Accomplished” which reminds me of President George W. Bush.

Of course Berry would say that because APD and the command staff do not want to accomplish the “mission” of police reform.

While the Department of Justice reviews APD consent decree, you wonder if they will also review the 2013 DOJ investigation and finding of a “culture of aggression” found within APD, the 41 police officer involved shootings and excessive use of force cases over the last seven years and the $61 million dollars paid out by the city for excessive use of force and deadly force cases and for civil rights violations by APD.

What the Berry Administration has to show is two years of delay tactics.

The Federal Monitor was extremely critical of the Berry Administration and the APD command staff in his last three reports to the federal court reporting delay tactics and lack of progress in implementing the DOJ consent decree mandated reforms.

The truth has always been that Chief Gordon Eden and his command staff are not committed to implementing the DOJ reforms as evidenced by their actions and performance under the consent decree.

Just five months ago on November 12, 2016, the Albuquerque Journal published an article reporting that city Community Policing Councils were frustrated with Chief Gordon Eden not attending their meetings, the Police Oversight Board complaining that Chief Eden ignored its findings and discipline recommendations, and the city attorney, instead of Chief Eden, was often the person who publicly explained the reform efforts.

(See November 12, 2106 Albuquerque Journal article “Police reform groups say APD Chief not involved” at https://www.abqjournal.com/887736/groups-where-is-eden.html).
APD Forward, an APD oversight group, also said Eden had not been present for many settlement-agreement meetings.

The Berry Administration, Chief Eden and his command staff lack of commitment to the DOJ mandated reforms is documented in the second, third and the fourth progress reports submitted by Federal Monitor James Ginger to the Federal Court.

In his second report to the federal court, Federal Monitor James Ginger accused the City Attorney of what he called, “delay, do little and deflect” tactics saying his relationship with her was “a little rougher than most” compared with top attorneys in other cities and where he has overseen police reform.

The July 1, 2016 federal monitor’s third report states “Across the board … the components in APD’s system for overseeing and holding officers accountable for the use of force, for the most part, has failed … the serious deficiencies revealed point to a deeply-rooted systemic problem. … The deficiencies, in part, indicate a culture [of] low accountability is at work within APD, particularly in chain-of-command reviews. …”

The November 1, 2016 fourth federal monitor’s report states that when “excessive use of force” incidents are investigated by the APD Critical Incident Team, it“ [deploys] carefully worded excuses, apparently designed not to find fault with officer actions” and “[uses] language and terminology apparently designed to absolve officers and supervisors of their responsibility to follow certain CASA (Court Approved Settlement Agreement) related provisions.

As of last July 31, 2016, APD was in compliance with only 25% of the settlement agreement’s 278 requirements which does not show much of a commitment to the reforms by APD.

With Attorney General Jeff Sessions demanding the resignation of US Attorney Damon Martinez, Albuquerque lost a federal prosecutor who was committed to implementation of the APD consent decree and all the reforms.

The District of New Mexico will soon have a new United States Attorney to carry out the Trump Administration agenda and only time will tell if that person will be committed to carrying out the consent decree or seek its modification.

Notwithstanding all the changes at the Department of Justice, the fact that APD is under a court approved settlement agreement means that any changes or modifications to the agreement or a dismissal will have to be approved by the federal judge no doubt with input from the federal monitor.

Come December 1, 2017, the City of Albuquerque will have a new Mayor and likely a new Chief of Police.

Voters need to demand candidates for Mayor say what their position is on the DOJ consent decree, if they support the reform effort and to what extent they support the reform effort.

Voters also need to demand from candidates for Mayor if they are committed to hiring a Police Chief and a command staff who will cooperate with the Federal Monitor to ensure genuine implementation of the consent decree and all the mandated reforms.

Fear and Loathing of Voters and Workers

It has been reported that a lawsuit has been filed in State District Court to have Albuquerque’s proposed mandatory sick leave ordinance known as the “Healthy Workforce Ordinance” invalidated declaring that it is a form of “voter fraud” and alleging it is an unconstitutional ordinance. (See April 4, 2017 Albuquerque Journal, page A-1, “Lawsuit targets proposed sick leave ordinance”.)

The lawsuit also seeks to set aside changes to Albuquerque’s minimum wage ordinance enacted by city voter referendum a few years ago.

It is not at all surprising that the lawsuit was filed by the association of Commerce and Industry, the New Mexico Restaurant Association and the National Association of Industrial Office Parks.

The lawsuit is clearly a “pre-emptive strike” to subvert the possible passage of the ordinance by voters.

The lawsuit is nothing more than a fear and loathing of voters and the working class by the business community.

The “Healthy Workforce Ordinance” is not even the law yet but hopefully will be placed on October’s ballot by the Albuquerque City Council for voter approval.

ALBUQUERQUE’S MINIMUM WAGE ORDINANCE

Increasing the hourly minimum wage for work to a “living wage” level that a person can live on and perhaps support a family has been hotly contested for many years.

In the 2016 Presidential election it was argued that the minimum wage should be $15 dollars an hour.

During the 2017 New Mexico legislative session, the legislature enacted an increase of New Mexico’s minimum wage from $7.50 an hour to $9.25 an hour which was vetoed by Governor Susana Martinez.

When elected officials in congress and the states for that matter, refuse to do the right thing and fail to look out and take care of the working class, many times voters take matters into their own hands on a local level and push for public referendums and vote to fill the leadership void.

In 2012, by a two-to-one ratio, voters in the City of Albuquerque decided to raise the City’s minimum wage from $7.50 per hour to $8.50 per hour.

The amended Ordinance also requires a cost-of-living adjustment (COLA) to the minimum wage and Albuquerque’s current minimum wage is $8.75 per hour.

Employers who provide healthcare or childcare benefits equal to or in excess of an annualized cost of $2,500.00, the minimum hourly rate payable to those employees is $1.00 less than the then-current minimum wage.

The Mayor, many Albuquerque City Councilors and the business community at the time opposed and actually campaigned against the minimum wage voter initiative.

Opponents argued increasing the minimum wage would destroy small businesses, especially the restaurant and service industries in Albuquerque.

None of the “doom and gloom” predicted happened and for four (4) years the minimum wage ordinance has been in effect.

Other New Mexico communities such as Santa Fe increased their minimum wage.

After enactment of the City’s minimum wage ordinance, the Mayor did not object to his appointed City Attorney saying the City did not have the resources to enforce the law against all businesses who violated the minimum wage law.

The current attitude of City Hall is that workers need to go to court on their own if they were not being paid what they were entitled to under the ordinance.

One lawsuit was filed by a group of waiters and waitresses and they prevailed.

THE PAID SICK LEAVE ORDINANCE

In the summer 2016, supporters of “Healthy Workforce Act” gathered enough valid petition signatures from registered voters to place the initiative on the ballot.

The Southwest Organizing Project, among other organizations, led the campaign to get the signatures.

The campaign needed 14,218 signatures of registered voters but at least 24,000 valid signatures were gathered and submitted for verification.

The Bernalillo County Commission declined the Albuquerque City Council’s request to put the initiative on the November, 2016 ballot with a State District Court upholding the Commission’s decision not to put it on the ballot.

The District Court ruling makes it likely that the mandatory sick leave initiative will be placed on next year’ s 2017 municipal election ballot at the same time as the Mayor and City Council races.

A silver lining is that this may increase the 2017 Municipal election voter turnout if the Albquerquer City Council in fact puts it on the ballot.

The Healthy Workforce Act will require business owners to pay one (1) hour of sick leave for every thirty (30) hours worked.

Part time workers normally are not afforded paid sick leave and will likely be the biggest beneficiary from the ordinance.

Large employers would be required to offer seven sick days per year after working 40 hours a week for a full year. Workers with smaller businesses would earn five sick days per year.

The sick leave ordinance is in a real sense is an extension of increasing the minimum wage initiative passed by voters three years ago.
It is a first step toward a living wage.

The “paid sick leave” initiative will help the working class who have no rights, who are mostly “minimum wage” or low hourly wage workers and who are overwhelmingly “at will” employees in the private sector.

“At will” employees can be terminated without any cause or notice by their employers.

“At will” employees have little or no employment rights and no real vested rights in their jobs except those already required by law such as being paid the minimum wage.

Federal and state laws governing working conditions also provide protections to workers and prohibit sexual harassment and retaliation.

I support the mandatory sick leave initiative and intend to vote for it.

ENFORCING MINIMUM WAGE AND HEALTHY WORKFORCE ACT

The existing minimum wage ordinance and the sick leave ordinance if enacted by voters need to be enforced by the City, and not by the hourly wage workers, because these are the City’s ordinances.

Every single business in Albuquerque is required to register and have a license to do business and must agree to adhere to all enacted city ordinances and laws. Businesses cannot pick and choose what laws and City Ordinances they want to follow.

The City Attorney’s office and Planning Department have the authority to enforce existing ordinances.

Businesses licensed by the City can be ordered to follow the minimum wage law or the City will take court action to have their business licenses revoked and secure Court Orders to shut down the businesses for violating the law.

The City Attorney’s Office needs to do the right thing and enforce the existing minimum wage ordinance and the sick leave ordinance if enacted by the voters.

A COALITION OF THE USUAL OPPOSING SUSPECTS

A coalition of 26+ major business organizations has been formed to raise a significant amount of money to oppose the initiative, not only in Court, but in this year’s municipal election. The coalition includes as members:

• Apartment Association of New Mexico
• Associated Builders and Contractors
• Associated General Contractors New Mexico
• Albuquerque Economic Forum
• Albuquerque Hispano Chamber of Commerce
• American Subcontractors Association of New Mexico
• Commercial Association of Realtors New Mexico
• Greater Albuquerque Association of Realtors
• Greater Albuquerque Chamber of Commerce
• Home Builders of Central New Mexico
• National Association of Industrial and Office Parks (NAIOP)
• New Mexico Association of Commerce and Industry
• New Mexico Restaurant Association
• New Mexico Utility Contractors Association.

Notice not a single “mom and pop” or small business is listed?

What is interesting is a few of the organizations that oppose the sick leave ordinance have said publicly it’s a good idea in concept, many businesses voluntarily provide for paid sick leave, but they feel it will be an accounting nightmare and do not like the “red tape”.

The truth is, most of the coalition members do not like being on the financial hook for increasing wages or benefits they have to pay to their employees or being told by government what they should pay their employees.

Arguments that are being used to oppose the sick leave initiative are identical or similar to those made against increasing the minimum wage and include:

1. It will destroy small businesses
2. Businesses cannot afford it
3. People will be laid off
4. A small business will have to cut down on hours offered to work
5. Too much “red tape” to prepare and keep track of sick leave
6. Too much government regulation or intervention
7. No need for it, because many businesses already pay sick leave
8. Unskilled workers are already paid enough
9. “At will” employees do not want such a benefit

The arguments made against the sick leave ordinance, as was the case with the minimum wage, have little or no merit and no credible financial impact studies or compiled data has been offered to substantiate the claims, at least not yet.

I doubt if any of the coalition members listed will go bankrupt or be severely harmed financially by the sick leave ordinance, and for that reason, they should be ashamed of themselves. They need to be more appreciative of their employees.

The sick leave benefit will help attract and keep hardworking employees.

CONCLUSION

During Albuquerque’s 2017 municipal election, voters need to demand and ask where the candidates for Mayor and City Council stand on the issue and say what they will do if elected on enforcing the ordinances.

I Identify With Underdogs

Mayoral Field likely to Shrink

As this story notes, I agree and predict City Councilor Dan Lewis, State Auditor Tim Keller, attorney Brian Colón, former Bernalillo County Commissioner Deanna Archuleta and County Commissioner Wayne Johnson will secure the required signatures to get on the ballot mainly because of their experience running for office, their organizations and their fundraising ability.

I added retired Albuquerque police officer Michelle Garcia Holmes, University of New Mexico student Gus Pedrotty and Old Town resident Stella Padilla to my list of those who I think will make the ballot because of the “hustle” and hard work I have seen from all three of these candidates.

There is still a lot of time to gather qualifying signatures, and I hope all the 14 announced candidates make it on the ballot, but I acknowledge that is not likely.

To me, the more choices we have, the better for the City.

The more candidates we have will encourage a healthy discussion of issues and it will improve voter turnout.

Four years ago, only 19% of eligible voters voted in the election.

Political commentators all too often discount motivated candidates who are hardworking, that are clear underdogs and who have some very good ideas.

Simply put, I tend to identify with underdogs and voters at times prove political commentators wrong .