Civil Lawsuit On ART No Substitute For Criminal Investigation On Whole Project

On Tuesday, November 6, 2018, the Albuquerque Journal published an editorial that was an about face regarding its 3-year support of the Albuquerque Rapid Transit Project bus project.

Following is the Journal editorial entitled “Halloweens over, but ART woes still haunting ABQ”:

“BYD bills itself as the undisputed leader in American electric-battery buses, its Build Your Dreams moniker evoking images of sleek, futuristic vehicles transporting the masses in a safe and environmentally friendly manner.

That might play on the brochures, but on the ground in Albuquerque a more fitting name for the company might be Build Your Nightmares – buses it built for the Duke City experienced brake failures and doors opening during operation.

BYD is the Chinese manufacturer behind the Albuquerque Rapid Transit project’s ill-fated electric bus fleet. The buses are manufactured at the company’s California-based North America plant.

Former Mayor Richard Berry’s ART project was supposed to transform Central Avenue into a rapid transit corridor with a nine-mile stretch of bus-only lanes and median bus stations.

Instead, Mayor Tim Keller inherited a B-horror movie, with buses that appear to be unsafe “at any speed.”

“We are not going to let these buses on our streets until we are 100 percent sure they’re safe,” Keller said last week. “And what the tests found is that, today, several of them are not.” And he means for riders or drivers. According to city officials:

• There have been door malfunctions; bolts began to fall off doors, and rear doors have opened during bus operation without any action by the driver.

• There have been brake failures; specifically, ABQ Ride mechanics discovered last month the center and rear brakes had zero air pressure, yet the bus was able to move, something that should never happen. “It means that the center and rear axle brakes were not working – the buses were relying on their front brakes alone,” said Bernie Toon, the city’s transit director.

• And there have been air conditioning outages.

BYD disputes the buses are unsafe, saying they have been built to strict Federal Motor Vehicle Safety Standards and passed FMVSS brake and all other testing required for revenue service.

Here’s betting that doesn’t include doors flying open at random and 60 feet of bus relying on one set of brakes.

This is the latest in a long string of we say/they say problems with the ART project in general and the buses in particular. The project is more than a year behind schedule and the city still doesn’t have all buses ordered, despite the fact they were to be delivered in 2017. Bus battery life has also been an issue.

Keller told reporters he’s running out of patience with BYD, and he’s not alone. The public is also fed up with this stalled project and BYD’s tired excuses. One drive down a completely configured Central Avenue – with motorists cruising in the “bus only” lanes – proves it.

It’s time for Keller and his administration to do a cost-benefit analysis and determine whether the city should sever ties with BYD, and what that alternative route would cost in time and money. Of course, such a move is a last resort – but we may be approaching that intersection.”

Below is the link to the Albuquerque Journal editorial:

https://www.abqjournal.com/1242312/halloweens-over-but-art-woes-still-haunting-abq.html

INSPECTOR GENERAL REPORT

One glaring omission from the Albuquerque Journal’s editorial was any mention of the City’s June 6, 2018 Inspector General (IG) Report on the ART Bus Project.

The entire Inspector General report can be read here:

https://drive.google.com/file/d/1fA-D6dk6lp3DZgQzQCWVEVbziQ2vXov/view

According to the Inspector General report, former Chief Operations Officer Michael Riordan “was adamant about having a bus transported to the City before the end of the Mayor Berry administration.”

An Albuquerque transit employee told the Inspector General that “core processes on manufacturing buses was altered to ensure delivery of the first bus by the deadline.”

The IG report described two city employees interviewed who recounted a “tense” and “unusual” phone call between then-city Chief Operating Officer Michael Riordan and top executives from the manufacturer.

According to the IG’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 city employee further reported that the first bus was moved to whatever assembly station was available to ensure it was assembled in time in order to get it shipped to Albuquerque before Mayor Berry left office.

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.”

COMMENTARY AND ANALYSIS

It appears that the Albuquerque Journal Editors adopted more than a few thoughts and words from the November 2, 2018 blog article “Keller: New Art Buses Unsafe At Any Speed” especially when they said:

“[O]n the ground in Albuquerque a more fitting name for the company might be Build Your Nightmares. … Mayor Tim Keller inherited a B-horror movie, with buses that appear to be unsafe “at any speed.” … Keller told reporters he’s running out of patience with BYD. … It’s time for Keller and his administration to do a cost-benefit analysis and determine whether the city should sever ties with BYD”.

The November 2, 2018 blog article “Keller: New Art Buses Unsafe At Any Speed” contained the following COMMENTARY AND ANALYSIS:

“[On November 1, 2018] Mayor Keller proclaimed “I am running out of patience.”

Mayor Keller, it’s about time you lost all patience and probably way too late not to be held 100% responsible for this boondoggle that has destroyed Route 66 and been a major drag on your first year in office.

Mayor Tim Keller I suspect feels that the ART bus manufacture Build Your Dreams (BYD) should change its name to “Build Your Nightmares.”

For almost a full year, Mayor Keller and the Keller Administration have been working on resolving major issues with 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/

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.

If a “divorce” is what Keller really wanted, he should have hired a good lawyer, filed suit and seek damages for breach of contract for all the delays and breach of warranties relating to the buses.

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

One question Mayor Keller was asked during the status conference 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, a question Keller declined to answer.

In June of this year, after the Inspector General Report on the ART Project 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/

What is genuinely pathetic is that the Albuquerque City Council went along with this boondoggle and refused to put it on the ballot for a vote.”

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

CONCLUSION

After more than 3 years, the Albuquerque Journal came around to what most taxpayers have thought from day one: $130 million in taxpayer money has been spent on a “boondoggle” for a bus line that has destroyed the character of Route 66.

The 22 buses ordered represent only $25 million of the $130 million project.

The city has yet to pay for any of the buses, even those that have been delivered.

A breach of contract action by the city against the bus manufacture to sever ties and return the buses 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.

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.

When Tim Keller was New 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, so his reluctance now he is Mayor to turn the City Audit and the ART Bus project to prosecuting agencies is very puzzling.

No matter what Mayor Keller says or does now, no matter what eventually happens with the ART Bus Project, it is now Mayor Keller’s lemon to own and be held responsible and accountable for given his reluctance to scrap the project and helping save face for his predecessor.

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About

Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.