It was on March 11, Governor Michelle Lujan Grisham became the first New Mexico Governor to invoke the 2003 Public Health Emergency Response Act (PHERA), issuing an Executive Order declaring a “public health emergency” giving her administration broad powers to deal with the coronavirus.
On March 16, as if not to be outdone by the Governor, the Albuquerque City Council voted 6 to 3 in favor of amending the city’s “Emergency Powers Ordinance” to help prevent further spread of COVID-19. The updated bill expands the mayor’s power to respond to the pandemic outbreak. City Councilors Isaac Benton, Diane Gibson, Cynthia Borrego, Klarissa Peña and Lan Sena voted Yes to pass the legislation while City Councilors Brook Bassan, Don Harris and Trudy Jones voted NO.
Passed in the 1960s, the Civil Emergency Powers ordinance was initially enacted to address potential widespread rioting and limits emergency powers to situations like riots and natural disasters. At the time, the country was experiencing extensive civil disobedience disorder as a result of the Viet Nam War and protests. The original bill includes many provisions that would be unenforceable or unconstitutional, such as closing down gun stores and gas rationing which are within the actual previews of the state or federal government.
At the March 16 City Council meeting, Albuquerque City Councilor Pat Davis offered a “floor substitute” of the “Emergency Powers Ordinance” containing original provisions of the ordinance, repealing some language of the ordinance and providing for significant amendments to the ordinance. The amendments essentially update the existing ordinance adding a public health provision to the provisions governing disasters like earthquakes and riots. The rules governing disasters like earthquakes and riots do not apply to situations such as the corona virus pandemic.
UPDATED “EMERGENCY POWERS ORDINANCE”
The new ordinance broadens the mayor’s “emergency powers”. Under the updated ordinance, the mayor can invoke specific powers like reallocating city resources to combat the epidemic and ordering the closure of streets, day cares and places of “mass assembly” like theaters and sports venues. The mayor could also require retailers to set limits on how many “medical, health and sanitation” products they sell to one person per day.
Under the changes to the “Emergency Powers Ordinance” the Mayor can declare a public health emergency for up to 7 days. While the mayor can issue the proclamation, the City Council is given the authority to amend, cancel or extend the order. The city council is also given authority to reverse any decision declared by the mayor. The powers granted to the mayor would only last for 30 days, but could be lengthened or shortened by the city council.
Under the updated ordinance, the Mayor now has the authority to close streets, limit the quantities of certain items sold at stores and close places where big gatherings happen such as places of worship. It also gives the Mayor power to close city facilities, relocate city staff and divert funding around to deal with a crisis. However, the ordinance does not let a Mayor seize private property or put individuals in quarantine. The emergency power would join others the mayor has like declaring a civil emergency if there is a riot or a natural disaster.
You can find the entire floor substitute containing all older provision and updated provisions here:
MAYOR TIM KELLER DECLARES EMERGENCY
On Wednesday, March 18, less than 48 hours after the Albuquerque City Council passed the amended “Emergency Powers Ordinance”, Mayor Tim Keller declared a Public Health Emergency to deal with the corona virus in the city. The Mayor announced and signed the emergency declaration even before the ink was dried on the enacted legislation and the city clerk’s signature on the transmittal notice of enactment.
Mayor Keller went out of his way to back up the declaration with a press release that that the new legislation would not allow him to confiscate guns or halt alcohol sales. The new legislation does not allow it either. The need to address the gun and alcohol issues was the result of severe criticism and false information spread about both issues on social media. Keller was forced to explain the primary purpose for the declaration was to give him more flexibility in freeing up financial resources to address the coronavirus threat.
The Mayor’s emergency declaration ends by making two specific requests for financial assistance from the New Mexico Department of Homeland Security and Emergency Management and state agencies and the Federal Emergency Management Agency. The entire written Emergency Declaration can be read here:
PAT DAVIS OFFERS DILUTED EXPLANATION OF SUBSTITUTE BILL
According to a city website analysis offered by City Councilor Pat Davis, what the ordinance does is as follows:
• Creates a new section of emergency law allowing the Mayor to declare an emergency in the case or actual or imminent outbreak of infectious disease
• Allow the Mayor to declare that emergency for up to 30 days, subject to amendment, extension or cancellation by the City Council
• Limit the kinds and quantities of items retailers may sell per customer per day
• Encourage private employers to take measures to limit exposures in their locations
• Order the closing of place of mass assembly, including sporting events, theatres clubs, etc.
• Order the closing of public and private educational and childcare institutions
• Cancel city-sponsored events
• Reallocate city staff and appropriations, as necessary, to address and respond to the threat
• Requires the Mayor to immediately share any order issued under this provision online, with the media and with the City Council
According to the same city website analysis offered by Councilor Davis, what the ordinance does not do is as follows:
• Does not address or change decades-old civil emergency laws, granting temporary (48-hour) authority to protect public safety in times of riot or natural disaster.
• Allow the city to quarantine any individual or seize any personal or private property
• Does not allow the prohibition of sales of any item during a public health
You can find the entire floor substitute containing all older provision and updated provisions here:
Councilor Pat Davis offered his own analysis of his substitute bill on the city website as follows:
“As we see too often today, social media posts can quickly spread misinformation. Unfortunately, we’ve seen those distract from the important work we need to do. These new provisions have nothing to do with gun ownership, or martial law. They simply allow the city to move staff and dollars to manage our response and impose common sense social distancing measures to prevent a crisis. Nothing more.”
COUNCIL VIOLATES NEW MEXICO OPEN MEETINGS ACT
On Monday, March 16, in an extraordinary first for the Albuquerque City Council, the general public was not allowed to sit in the public audience area of the council chambers. The City Council Chamber doors were closed to the public, audience seats were vacant, all as a precaution to stop the spread of the coronavirus. Only members of the media, city councilors and some city workers were allowed inside during the meeting. Outside of the council chambers, APD Police were stationed to keep people out or checking people’s credentials who were trying to get in. The city council meeting was broadcast on GOV TV and the public could watch the meeting online, but could not make comment. For those who wanted to participate in public comment, they could have emailed, faxed or hand delivered their comments to the councilors before the meeting.
The actions of City Council President Pat Davis, who presided over the meeting and not knowing the council was in violation of the open meeting act, can be fully explained by his well earned reputation for knee jerk reactions based upon news events, his arrogance, and ill-advised actions of not knowing what he is doing.
On Tuesday, March 17, the very day after the City Council meeting, Attorney General Hector Balderas issued “Guidance to Public Entities Regarding Open Meetings Act and Inspection of Public Records Act Compliance During COVID-19 State of Emergency”. It is more likely than not that the Attorney General found out about the City’s Council’s illegal actions after news accounts. The guidelines give specific steps to be followed by public entities to comply with the Open Meetings Act. You can read the Attorney General’s guidelines in the postscript to this blog article.
AMERICAN CIVIL LIBERTIES UNION RAISES OVERREACH CONCERNS
On March 17, the local chapter of the American Civil Liberties Union issued a statement and said Albuquerque’s newly approved emergency powers ordinance may be an “overreach.” In a statement issued by Peter Simonson, executive director of the ACLU of New Mexico, the ACLU said the ordinance passed by the city council is too vague, particularly in defining a “public health emergency” and a “reasonable threat,” which the organization said could allow the mayor to invoke “sweeping powers to shut down businesses and ban people from public spaces in response, for example, to a common flu outbreak.”
SERIOUSLY FLAWED 1960’s CITY CIVIL EMERGENCY POWERS ACT
The 1960’ s Civil Emergency Powers ordinance enacted by the City Commission, which was initially passed to address potential widespread rioting, “unlawful assembly “ and natural disaster such as “flood, conflagration, cyclone, tornado, earthquake” contains the following provisions:
“§ 2-9-1-3 EMERGENCY POWERS.
Whenever the Mayor shall, after consultation with the Chief of Police find that a civil emergency exists as defined herein and that invocation of the extraordinary powers conferred herein is necessary to ensure or to restore the public peace, he shall forthwith proclaim in writing the existence of such emergency. Upon such determination the Mayor is hereby empowered to invoke any or all of the following provisions:
(A) To declare hours of curfew upon all or any portion of the city thereby requiring all persons in such designated curfew areas to forthwith remove themselves from the public streets, alleys, parks or other public or semi-public places. The curfew shall be declared by proclamation which shall be delivered to the Chief of Police, who shall see that copies thereof are delivered to all news media within the city and who shall also use public address systems to notify the public of said proclamation and curfew hours and warn the public that violation of said curfew constitutes a misdemeanor and violators are subject to arrest.
(B) To close any and all streets, alleys and other public ways in the city to the public whenever it is necessary for the preservation of life and property and the maintenance of law and order.
(C) Order the closing of all retail package liquor stores and outlets.
(D) Order the closing of all bars and other establishments selling intoxicating liquor or beer by the drink.
(E) Order the discontinuance of selling, distributing or giving away gasoline or other liquid flammable or combustible products in any container other than a gasoline tank properly affixed to a motor vehicle said sale to be limited to not more than one gallon per motor vehicle, or in the alternative, order the closing of gasoline stations and other establishments, the chief activity of which is the sale, distribution or dispensing of liquid flammable or combustible products.
(F) Order the discontinuance of selling, distributing, dispensing or giving away of any firearms or ammunition of any character whatsoever, or in the alternative, order the closing of all establishments or portions thereof where arms and/or ammunition are kept for sale or distribution.
(G) Issue such other orders as are imminently necessary for the 2 protection of life and property [throughout the duration of the emergency, 3 including any provisions above that have not been previously invoked.”
2020 “EMERGENCY POWERS ORDINANCE” UPDATE
The major provisions contained in the substitute that were adopted in an effort to update the ordinance are as follows:
“§ 2-9-1-4 MAYORAL PROCLAMATION OF PUBLIC HEALTH EMERGENCY; EMERGENCY ORDERS
Whenever the Mayor shall, after consultation with the Director of the City Office of Emergency Management, find that a public health emergency exists as defined herein and that invocation of the extraordinary powers conferred herein is necessary to help preserve and maintain the health, safety, and welfare of the general public, he shall forthwith proclaim in writing the existence of such emergency.
Upon such determination the Mayor is hereby 12 empowered to invoke any or all of the following provisions:
(A) To close any and all streets, alleys and other public ways in the city to the public whenever it is necessary for the preservation of life and public health and safety.
(B) Order retailers to limit the kinds and quantities of items that a business may sell per customer per day.
(C) Order the closing of places of mass assembly, including but not 19 limited to theaters, clubs, places of worship, live or telecast performances 20 intended for a public audience, and athletic venues.
(D) Order the closing of places of institutional childcare or education 22 such as daycares, preschools, and private educational institutions.
(E) Order that places of private employment take reasonable measures (as determined by each employer) to minimize any exposures to infectious diseases or health risks to employees and customers by, for example, partial or full closures, or authorizing non-essential employees to work from home or take leave, or deploying social distancing protocols.
(F) Cancel city sponsored events and gatherings, cancel or impose limitations or special protocols for the provision of City services and the use of city facilities, and authorize the redistribution or rededication of city resources and budgetary appropriations as necessary to help address or combat the proclaimed emergency.
(G) Enter any agreements authorizing the use of City owned property by 2 third parties, or agreements for the City’s use of non-city owned property, 3 outside of the usual requirements for City real property transactions 4 prescribed ROA 1994 § 5-2-1 et. seq. as necessary to help address or combat 5 the proclaimed emergency.
(H) Issue such other orders as are imminently necessary for the 7 protection of life and property throughout the duration of the emergency, 8 including any provisions above that have not been previously invoked.
§ 2-9-1- PUBLICATION OF ORDERS
(B) Any public health emergency proclaimed in accordance with the 2 provisions of §§ 2-9-1-1 et seq. shall take effect immediately, and terminate upon the date set forth by the proclamation, not to exceed thirty (30) days from the issuance thereof, or may terminate sooner upon the issuance of a proclamation by the Mayor determining an emergency no longer exists, whichever occurs first; provided, however, that any emergency proclamation may be sooner terminated or amended by resolution of the City Council prior to the termination of 30 days or may be extended by any resolution of the Council as originally proclaimed or with amendments for any such additional periods of time as deemed necessary by the City Council up to a maximum of ninety (90) days per proclamation].
§ 2-9-1-8 NON-LIMITATION OR INTERFERENCE WITH OTHER AUTHORITY
Nothing herein is intended to limit the power or authority of the Mayor with respect to the control and management of City resources and facilities that generally exists even outside the existence of a civil emergency. However, notwithstanding the emergency powers authorized herein, closures or limitations for any office or place of gathering or meeting necessary for carrying out the business of the City Council may occur only by order of the City Council.”
COMMENTARY AND ANALYSIS
The entire 1960 Civil Emergency Powers ordinance should have been repealed out right. It contains archaic language and many provisions that are likely unenforceable and unconstitutional. In particular the provisions of the original ordinance regarding curfews (section A) gasoline sales and rationing (section E) and order the discontinuance of selling, distributing, dispensing or giving away of any firearms or ammunition (section F) are all likely unenforceable or unconstitutional. Sections (C) allowing the Mayor to close all retail package liquor stores and outlets and (D) allowing the Mayor to close all bars and other establishments selling intoxicating liquor or beer by the drink usurps the powers of the State that has exclusive authority over liquor licensing. Sections A, C, D E, F of § 2-9-1-3 of the 1960’s Emergency Powers Ordinance usurp the powers of the State or Federal Government and are not within the authority of the city council as provided by the city charter.
Instead of repealing the 1960 Civil Emergency Powers, the City Council, and in particular President of the City Council Pat Davis, had a knee jerk reaction because of current events involving the corona virus pandemic. The City Council rushed the enactment of amendments to the ordinance in a panic by calling an emergency meeting that violated the New Mexico Open Meetings Act. The city council barred the public from attending the meeting. It was also a mistake for Mayor Keller to sign off on the changes to the ordinance and he should have vetoed it. Instead, Keller declared an emergency less than 48 hours after passage of the ordinance amendments.
The Emergency Powers Ordinance as amended by the City Council gives the City Council the authority to amend, cancel or extend the Mayor’s order, which amounts to nothing more than a “power grab” by the city council. The City Council can now very easily usurp the authority of the Mayor once an Emergency Declaration is proclaimed, something the Mayor has now acquiesced in by not vetoing the ordinance amendments.
Mayor Tim Keller under the city charter already has inherent emergency authority powers to protect the public health, safety and welfare to do much of what is contained in his emergency declaration when it comes to allocating city staff and resources as necessary to address the current COVID-19 pandemic. The Mayor has authority to issues directive and set priorities for the Police, Fire, Planning Code enforcement and Family and Community services. He did not need the city council’s permission to make the declaration. Those inherent powers would also likely include making “emergency procurements”, likely subject to city council approval, to protect the health and safety of citizens and property.
Likewise, the Mayors’ requests for financial assistance from the New Mexico Department of Homeland Security and Emergency Management and state agencies and the Federal Emergency Management Agency could have been made with a Declaration of Emergency without the new provisions or the amendments to the ordinance.
The ordinance enacted is in fact void and unenforceable. Notwithstanding, Mayor Keller signed off on it and then immediately issued his Declaration of Emergency. But that does not excuse the City Council from following the law.
From a practical standpoint, the most prudent thing for the City Council to do now is to rewrite the ordinance and convene another meeting and ensure compliance with Open Meeting Act and to try to follow the guidelines of the Attorney General. The urgency of the legislation has been diminished significantly with the city implementation of actions as well as the Governor’s actions.
It is in time of crisis such as these that the character of elected officials and their true commitment to civil rights is revealed. No one is above the law, especially the Albuquerque City Council who acted irresponsibly and rushed to put forth and enact legislation without any real public input or listening to the public concerns. The City Council enacted legislation without allowing voters the right to exercise their constitutional rights of free speech and due process. Instead the city council engaged in a “power grab” to make sure they could take actions to interfere with the Mayor’s efforts to deal with the crisis.
On Tuesday, March 17, the very day after the City Council meeting, Attorney General Hector Balderas issued “Guidance to Public Entities Regarding Open Meetings Act and Inspection of Public Records Act Compliance During COVID-19 State of Emergency” following is the press release in full:
For Immediate Release:
March 17, 2020
Contact: Matt Baca — (505) 270-7148
AG Balderas Issues Guidance to Public Entities Regarding Open Meetings Act and Inspection of Public Records Act Compliance During COVID-19 State of Emergency
Santa Fe,NM—Today [March 17], Attorney General Balderas issued the following guidance to public entities across the State of New Mexico regarding their ongoing obligations to comply with the Open Meetings Act (OMA) and the Inspection of Public Records Act (IPRA) during the state of emergency in New Mexico.
“The health and safety of New Mexican families is the number one priority across our State, but government must remain transparent and accountable, especially during a state of emergency,” said Attorney General Balderas. “All public entities should follow the guidance of public health officials and make any necessary adjustments to ensure compliance with our transparency laws during this time.”
The Office of the Attorney General advises all public entities subject to OMA to first and foremost follow the guidance of the Department of Health and other health officials to ensure the health and safety of both members of the entity and the public. Accordingly, the most prudent thing to do to ensure compliance with OMA would be to postpone any non-essential public meeting during the pendency of the state of emergency. If, however, a public entity has an emergency or time-sensitive matter to attend to, it may proceed with a virtual meeting under the following guidelines:
· Notice of the meeting must still comply with the mandates of OMA, and it should contain detailed information about how members of the public may attend and listen via telephone, live streaming, or other similar technologies—this should include such detail as relevant phone numbers, web addresses, etc.;
· While provided by alternative means, the public must have some form of access to the meeting to substitute for the access it would during any normally scheduled public meeting subject to OMA;
· Where possible, videoconference is the best alternative method of holding meetings;
· At the start of the meeting, the chairperson should announce the names of those members of the public entity participating remotely;
· All members of the public entity participating remotely must identify themselves whenever they speak and must be clearly audible to the other members of the public entity and to the public;
· The chairperson or person leading the meeting should suspend discussion if the audio or video is interrupted;
· All votes of the public entity should be by roll call vote;
· The public entity should produce and maintain a recording of the open session of the meeting.
To comply with IPRA, the Office of the Attorney General recommends that, first, agencies continue to satisfy IPRA’s deadlines and fulfill IPRA requests however possible in light of Department of Health’s recommendations and any order pursuant to the state of emergency. Of paramount importance, as is always the case, a public entity’s records custodian should communicate promptly with the requesting party, however now regarding the circumstances of production in the context of the state of emergency.
Pursuant to public health guidelines during the state of emergency, public entities should suspend all in-person inspection of public records during the pendency of the state of emergency. Public entities should make every effort to comply with the mandates of IPRA by producing records electronically. If circumstances arise where records are not available electronically and cannot be produced in the timeframes mandated by IPRA, an agency may designate a request as excessively burdensome due to the state of emergency, and communicate to the requestor that the request will be fulfilled as required by IPRA when the state of emergency is lifted.
In short, IPRA very much still applies and all deadlines should be satisfied to the fullest extent possible. Where the state of emergency hampers or otherwise prohibits an entity’s ability to respond, we reiterate that the entity nonetheless should communicate promptly with the requester to make alternative arrangements to allow for the inspection of records, in keeping with the spirit and intent of IPRA.
The Office of the Attorney General continues to be available to any public entity that has questions or concerns about OMA and IPRA compliance, and will also continue to take OMA and IPRA complaints during the state of emergency.”
For a related blog articles see:
March 16 City Council Meeting Violated New Mexico Open Meetings Act By Excluding Public Attendance; Criminal Penalties Provided; City Council’s Enactment of Ordinance Giving ABQ Mayor “Emergency Powers” Void
Mayor Tim Keller Declares Public Health Emergency Without Press Conference; ACLU Raises Overreach Concerns; Rio Grande Foundation Files Suit Alleging Violation Of Open Meetings Act; Gov. MLG Upstages Mayor With Her Press Conference