On Monday, March 16, 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 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.
The changes to the ordinance broadens the mayor’s “emergency powers”. The Mayor can declare a public health emergency for up to 7 days. While the mayor can issue the proclamation, the City Council gave itself 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 ordinance, the Mayor has the authority to close streets. The mayor can also require retailers to limit how many “medical, health and sanitation” products they sell to one person per day. The ordinance gives the Mayor authority to close places of big gatherings and gives the Mayor power to close city facilities, relocate city staff and divert funding around to deal with a crisis. The mayor can invoke specific powers such as 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.
MAYOR TIM KELLER DECLARES A PUBLIC HEALTH 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 “Declaration of Local State of Emergency Due to Novel Corona Virus COVID-19” on a video posted on social media and distributed to the local new outlets. In the video announcement, Keller said the declaration “frees up financial resources for our city and flexibility so we can deal with this situation the best way possible.”
You can review the entire video here:
The emergency declaration allows the Keller administration to allocate city staff as necessary to address the current COVID-19 pandemic. It will also allow for the city to make “emergency procurements” to protect the health and safety of citizens and property. It also serves as a request for state and federal assistance.
The Mayor’s “Declaration of Local State of Emergency Due to Novel Corona Virus COVID-19” makes 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:
Mayor Keller’ emergency declaration does not invoke many of the powers specifically allowed in the ordinance but he did say he could issue “other orders as are imminently necessary.” In the video announcement, Keller went out of his way to emphasize that his declaration does not “do anything with respect to firearms or alcohol sales.”
In a separate press release, Mayor Keller clarified that his declaration does not
• limit the sale or transfer of firearms
• prohibit the sale of liquor
• close streets
• declare a curfew
POWERS OF THE MAYOR
The government of the city of Albuquerque is often referred to as a strong Mayor, weak council, form of government because of the extent of the authority given to the Mayor under the City Charter.
Article 5, Sections 3 and 4 of City Of Albuquerque Charter provides and delineates the powers and duties of the Mayor.
Article 5, Section 3 entitled “POWERS; PERFORMANCE; APPOINTMENTS” provides:
“The executive branch of the city government is created. The office of Mayor is created. The Mayor shall control and direct the executive branch. The Mayor is authorized to delegate executive and administrative power within the executive branch. The Mayor shall be the chief executive officer with all executive and administrative powers of the city and the official head of the city for all ceremonial purposes. The Mayor shall devote full time and attention to the performance of the duties of office and shall hold no other paid public or private employment.”
Article 5, Section 4 entitled DUTIES OF THE MAYOR, provides in part as follows:
The Mayor shall:
(a) Organize the executive branch of the city;
(b) Exercise administrative control and supervision over and appoint directors of all city departments, which appointments shall not require the advice or consent of the Council except as provided in (d) of this Section;
[EDITORS NOTE: c, d, e, f, g, h, i, j deals with appointments of Chief Administrative Officer, Deputy Administrative Officers, the Chiefs of Police and Fire, City Attorney, City Clerk, Department Directors, Boards and Commissions, city budget preparation, reports and citizen complaints.]
(k) Perform other duties not inconsistent with or as provided in this Charter; and
(l) Faithfully execute and comply with all laws, ordinances, regulations and resolutions of the city and all laws of the State of New Mexico and the United States of America which apply to the city.
AMERICAN CIVIL LIBERTIES UNION RAISES OVERREACH CONCERNS
On March 17, the local chapter of the American Civil Liberties Union in a statement issued 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.”
Below is the full statement released by Peter Simonson, executive director of the ACLU of New Mexico:
“We recognize the very real fear and concern gripping our communities during this uncertain time and appreciate the efforts of elected officials to contain the spread of COVID-19. As we confront this pandemic, some measures, grounded in science and public health, must be taken to protect the health, safety, and civil liberties of us all.
While the emergency powers legislation approved last night by the Albuquerque City Council is an understandable reaction to the mounting disease threat, we fear that the Council overreached. Specifically, the ordinance too vaguely defines the term ‘public health emergency,’ and leaves too much discretion as to what could be considered a ‘reasonable threat,’ thereby granting the mayor sweeping powers to shut down businesses and ban people from public spaces in response, for example, to a common flu outbreak. We also have concerns about the extent of the mayor’s new powers and their duration.
In times of crisis, we become susceptible to rash legislation that grants excessive power to government. One need only look to the USA Patriot Act for an example of how the rush to address the community’s fear can result in the making of law that causes unintended consequences and widespread abuse for years to come. Once such changes make their way into our laws, they are onerous to reverse. That’s why other local governments considering legislation like Albuquerque’s should proceed with caution and concern for future generations. Down the line, administrations that are hostile to civil liberties may use this power in unintended ways.”
RIO GRANDE FOUNDATION FILES COMPLAINT ALLEGING VIOLATION OF OPEN MEETINGS ACT
The Rio Grande Foundation is an economic policy think tank located in Albuquerque, New Mexico. The Foundation is affiliated with the U.S. nationwide State Policy Network. It was founded in 2000 by Hal Stratton, a former Republican NM State representative and Republican NM Attorney General of New Mexico, and Harry Messenheimer, an economist then at George Mason University. Paul Gessing became president of the foundation in 2006.
The policy goals of The Rio Grande Foundation includes supporting tax cuts, reduced government spending, school choice, specifically by means of tax credits or school vouchers. It opposes the use of eminent domain and supports expansive private-property rights. The foundation is considered by many as a government watch dog group of city, county and state government action. The Foundation is a 501(c)(3) charitable, tax-exempt, non-profit organization.
On Monday, March 16, the Albuquerque City Council convened a meeting where 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.
On March 18, the Rio Grande Foundation filed a lawsuit in New Mexico State District Court alleging that the City violated the New Mexico Open Meetings Act by holding the City Council meeting March 16, without proper notice and without conducting such according to the provisions of the Open Meetings Act thereby violating the Due Process owing to the citizens of Albuquerque. On Friday, March 13, 2020, the City Council announced that it would be holding a closed meeting on Monday, March 16, 2020 and the public was prohibited from attending.
The Open Meetings Act is clear when it says “All meetings … of a quorum of members of policy making body of any … municipality … are declared to be public meetings open to the public at all times …” There are no exceptions that would permit the city council to bar the public from a meeting such as they did.
The Open Meetings Act is equally clear when it says “No resolution, rule, regulation, ordinance or action of any board, commission, committee or other policy making body shall be valid unless taken or made at a meeting held in accordance with the requirements [the Open Meetings Act].” In other words, where the Open Meetings Act is violated , the actions of the policy making body are “void”.
The Open Meeting Act provides that any person can apply to enforce the purpose of the Open Meetings Act, by injunction, mandamus or other appropriate order. If they prevail, the court shall award costs and reasonable attorney fees to any person who is successful in bringing a court action to enforce the provisions of the Open Meetings Act. Conversly, if the public body defendant prevails it can be awarded attorneys fees. (Section 10-15-3 C, NMSA 1978)
The New Mexico Attorney General’s Office publishes a “Compliance Guide For The Open Meetings Act”, that also contains the full act and commentary with a checklist for compliance, and it can be found here:
GOVERNOR MICHELLE LUJAN GRISHAM HOLDS PRESS CONFERENCE
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. The governor urged people to avoid public gatherings, sanitize common surfaces and minimize contact with other individuals, even if it means staying home from church or going out less often in order to slow transmission of the virus. During a press conference declaring the emergency, Lujan Grisham said New Mexico had 2,400 tests available to determine who has the coronavirus.
On March 18, in a very dramatic and stark contrast to Mayor Tim Keller’s controlled video signing ceremony, Governor Mitchelle Lujan Grisham held a sweeping and very lengthy press conference in the New Mexico House Chambers. The Governor stood for at least an hour takinq questions from all media.
The Governor moved New Mexico closer to a quarantine in an attempt to keep the coronavirus under control, closing restaurants and bars to in-person dining while temporarily shutting down theaters, indoor malls, gyms and resort spas. The closures also include prohibiting public gatherings of 10 or more people and barring shoppers from hoarding supplies. The closures are the latest in an escalating series of actions ordered by the Lujan Grishham in an effort to slow the spread of the virus. In the days after New Mexico’s first case of coronavirus was announced, Lujan Grisham’s administration closed public schools for three weeks, directed most state personnel to work from home and ordered a ban on large public gatherings.
During her press conference in the state capital, the Governor had this to say:
“There are still far too many New Mexicans that are coming into contact with one another. ”
Testing in the state for the virus has escalated substantially. The number of coronavirus cases in New Mexico has reached 28 by Wednesday, March 18 when 5 additional cases were confirmed. To date, there have been about 1.2 positive cases in New Mexico for every 100 people tested. One of the new cases confirmed involved a woman who had not traveled. According to Department of Health deputy epidemiologist Chad Smelser, hat is significant because all of the state’s previous cases of COVID-19 had been attributed either directly to travel or to contact with people who were infected while traveling. Smeler opined:
“That means to us, there is spread in the community,”
COMMENTARY AND ANALYSIS
It is clear that the corona virus is a very infectious disease that is spreading like a wild fire throughput the world, the United States and now New Mexico. Given the magnitude of what is happing with the corona virus, it is understandable that the Albuquerque City Council gave the Mayor expanded authority. It is also very understandable that Mayor Keller wanted to make an Emergency Declaration even before the ink was dried on the enacted legislation and the city clerk’s signature on the transmittal notice of enactment.
AVOIDING BEING QUESTIONED
The fact that Mayor Keller proclaimed and signed his “Declaration of Local State of Emergency Due to Novel Corona Virus COVID-19” on a video posted on social media and then distributed to the local new outlets raised more than a few eyebrows within the media and from political observers. The “signing ceremony” video only had Keller speaking with no public safety officials and Keller looking into the camera all alone sitting at a table and signing the declaration as he spoke. Keller’s message appeared very well rehearsed, but slick none the less.
One reason for concern is that Keller has a penchant for almost daily press conferences always surrounded by others. By not holding a press conference, Keller was able to avoid any and all questions from the media. It allowed him to completely control his message and allowed him to be very vague, yet assuring on what the city will actually be doing. He did not get into any detail as to what will now be done by the city. Absent was any information as to what the departments under his control, such as the police, fire, family community services ect., would be doing to implement his order.
Mayor Keller went out of his way in making the announcement backed up with a press release 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. 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.
SHARP CONTRAST IN LEADERSHIP STYLES
In a very dramatic move on the same day as Mayor Keller’s controlled video signing ceremony, Governor Michelle Lujan Grisham held a sweeping and very lengthy press conference in the New Mexico House Chambers to give an update on her administrations efforts. She stood for at least an hour takinq questions from all media. The leadership that the Governor exhibited was in sharp stark contrast to that which was exhibited by Mayor Tim Keller. She was poised, well versed and in command of the situation. She appeared comfortable and reassuring. Keller’s controlled video announcement on the other hand appeared to be more of a taped video audition for a television pilot where he would be playing the role of the mayor.
Both the American Civil Liberties Union and the Rio Grande Foundation have raised very serious and very legitimate concerns. In time of crisis, cool heads must prevail otherwise it only makes matters worse and mistakes are made in a panic. Without a press conference, Keller could not be confronted and was able to avoid concerns raised by the ACLU and the lawsuit filed by the Rio Grande Foundation that the Council had violated the open meetings act.
It was a major mistake for the city council to rush in and enact the amendments to the “Emergency Powers Ordinance” reflecting a knee jerk reaction to the point that they ignored the “open meetings” act. It was also a mistake for Mayor Keller to sign off on the changes to the ordinance and he should have vetoed it. It is more likely than not that the District Court will find that the Albuquerque City Council did indeed violate the New Mexico Open Meetings Act, and if so, the ordinance enacted will be held void and unenforceable.
COUNCIL POWER GRAB
It is likely the Mayor under the city charter has emergency authority powers 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. 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.
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.
To those who are critical of the American Civil Liberties Union and the Rio Grande Foundation, what is important to remember is that elected officials are not above the law and our civil rights must be protected. The enactment of the Open Meetings Act by the New Mexico legislature was motivated by the belief that the democratic ideal is best served by a well-informed public. Sunshine laws generally require that public business be conducted in full public view, that the actions of public bodies be taken openly, and that the deliberations of public bodies be open to the public.
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