On June 13, 2018, the Albuquerque Journal published a letter from Dr. R.J. Brewer of Albuquerque, New Mexico. Dr. Brewer is retired from the United States Marine Corps having served from 1969-1972. 1969 to 1972 was at the height of the Vietnam War, and I suspect, but I do not know for sure, if Dr. Brewer saw action in Viet Nam. In his letter to the editor, Dr. Brewer advocates for repeal of the Second Amendment.

Following is the full letter to the editor:

“I think there are good and honest men and women within the Democratic and Republican caucuses of the House and Senate who could come together to address the shameful profiteering by gun manufacturers in America at the cost of the lives of her children and innocent people of all ages. I will not see the repeal of the second amendment in my lifetime. This is the tragedy. But it is important to at least try and tell the truth.”

“Our founding fathers, with their single -shot, flint lock muskets and pistols, never envisioned an AR-15 rifle. I am sure they would have been astonished by its power, accuracy and firing rate; in effect, by its deadliness and danger to the public. I cannot logically understand why we should have a sacred right to own and use this murderous weapon of war but not have a constitutional right to “bear” and use a shoulder fired grenade launcher capable of destroying a car, or a shoulder-fired, light antitank rocket launcher capable of destroying a small house.”

“I understand that there are Americans who are ardent and even fanatical with the regard to their right to own and use weapons of war. I suspect the majority of these people never volunteered to serve in the military in time of war, or actively evaded that service when it was when it was legally required of them. But to those other less committed gun owners who say they use these weapons for “recreation”, please give them up. Weapons of war should not be considered “sporting goods” and they’re not “recreational.”

“Repeal the Second Amendment”

Dr. R.J. Brewer
U.S.M.C. (Ret.) 1969-1972
Albuquerque

COMMENTARY AND ANALYSIS

Dr. Brewer makes a point all too often overlooked by the NRA and the defenders of the Second Amendment, and that is the historical context of when the Second Amendment was enacted and the advancement of our technology to make and wage war.

Simply put, times change, scientific advancements are made and fiction becomes a reality.

When the Second Amendment was enacted, the mode of transportation was horseback, flint locks were used to defend and wage war, no one could fly and all of mankind could only look to the stars in wonder and life expectancy was around 50 years old if you survived childbirth and if you were lucky and did not die of disease.

Today, our mode of transportation are cars and jet airplanes, our country defends itself with nuclear warheads and cruise missiles, the United States has gone to the moon and back more than once, and countries are exploring space and medical advances are allowing people to live into their nineties and organ transplants are common place.

Sooner rather than later, gunpowder will be replaced by technology and no doubt Second Amendment advocates will want to hold a weapon of mass destruction in their hands like seen in Star Trek or Star Wars.

It is not at all hard to imagine in 100 years an NRA member and Second Amendment rights advocate going into a gun store and asking to buy the updated, hand held remote control for his lazer drone Death Star 100 saying he needs it for the weekend hunt and proclaiming “My Death Star 100 can take out an entire herd of elk, butcher it, cook it and make jerky out of it with just one shot!”

SECOND AMENDMENT IS JUST THAT AND CAN BE REPEALED OR AMENDED BY THE STATES

Second amendment advocates ignore the fact that it just that, an Amendment to our US Constitution that was enacted and can be repealed or substituted by the will of the people.

Our founding fathers knew that for a democracy such as ours to survive, it needed a process to allow government to be able to reflect changing times, grant human rights and allow the US Constitution to conform with changing norms and make corrections.

Otherwise, we would still have slavery, women would not be able to vote and we would not be able to drink alcohol.

The 13th Amendment to the Constitution declares that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”, it formally abolishing slavery in the United States, it was passed by the Congress on January 31, 1865, and ratified by the states on December 6, 1865.

Passed by Congress June 4, 1919, and ratified on August 18, 1920, the 19th amendment granted women the right to vote and it guarantees all American women the right to vote.

The Twenty-first Amendment (Amendment XXI) to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, which had mandated nationwide prohibition on the production and sale of alcohol on January 16, 1919 and the Twenty-first Amendment was ratified by the states on December 5, 1933.

The “right to bear arms” is not a right embodied or guaranteed in the original constitution.

UNITED STATES HISTORY OF MASS SHOOTINGS

Since 1995, the United States has had 95 mass shootings, including seven of the 11 deadliest.

Three of the 11 biggest mass shootings in American history have now taken place in the United States in the last six months.

There is no doubt we have a deadly mass shooting epidemic on our hands.

The mass shooting with guns in the last 10 years include: Orlando, Florida (49 killed, 50 injured), Blacksburg, Va. (32 killed), San Ysidro, Cal (21 killed), San Bernardino, (14 killed), Edmond Oklahoma (14 killed), Fort Hood (13 killed), Binghamton, NY (13 killed) Washington, DC (12 killed), Aurora, Colorado (12 killed), Sandy Hook Elementary School, Newtown, Conn (21 children and 6 adult staff members killed) and the largest mass shooting in this country’s history that occurred in Las Vegas, Nevada with at least 59 dead and at least 515 wounded and the Parkland/Stoneridge High School shooting that resulted in 17 children’s deaths, El Paso,Texas, 23 dead and 23 injured.

“The deadliest mass shootings in recent history have had one thing in common: the perpetrator used an assault rifle. These weapons possess an incredible amount of killing power, and amplify the destructive will of the person who carries out an attack. Nine people died and 27 were injured in a mass shooting in Dayton, Ohio in an attack that lasted 32 seconds. The killer used an AR-15 style assault rifle.Since 1999, there have been 115 mass shootings (defined below) in which 941 people were killed and 1,431 were injured. Of those 115 attacks, 32 — just over a quarter — involved semi-automatic rifles. But those attacks accounted for 40% of all deaths and 69% of all injuries. Since 2017, 12 of the 31 mass shootings involved assault rifles — which caused 39% of the deaths and 92% of the injuries. That includes the Las Vegas massacre — which alone accounts for almost 40% of all mass shooting injuries since 1999. The perpetrator of that shooting used over 20 assault rifles during that attack.”

https://www.axios.com/deadliest-mass-shootings-common-4211bafd-da85-41d4-b3b2-b51ff61e7c86.html

After so many mass killings, it is difficult to refute that something needs to be done about semi-automatic and automatic guns such as the AR-15, or the type used in all the mass shootings and that are the weapons of choice for mass murderers.

The difference with the Parkland shooting and all the other mass shootings is that it finally ignited a national discussion on gun control with the March for Our Life’s movement, and it was the children of our county that said enough is enough. The National Rifle Association (NRA) no doubt realizes that a sleeping giant has now been awaken and that two generations of voters are now “pissed”. The millions of people who marched in Washington, DC and in cities all over the country are clear proof just how upset voters are with the availability of guns.

After so many mass killings, it is difficult to refute that something needs to be done about semi-automatic and automatic guns such as the AR-15 which are the type used in all the mass shootings. These are also the weapons of choice that are carried by the citizen militias.

The clear message to congress by the March for Our Lives movement is that the time has come to tell the NRA and the politicians they have in their pockets to pound sand.

OTHER PROPOSALS TO CONSIDER LOCALLY AND NATIONALLY

There are many legislative proposals, albeit too controversial for many running for office and who hold office to stomach, that need to be considered on a state level and on the federal level that could be proposed or enacted by our federal and state officials and those running for office.

In New Mexico, our legislature should consider:

1. Repeal the New Mexico Constitutional provision that allows the “open carry” of firearms. This would require a public vote and no doubt generate heated discussion given New Mexico’s high percentage of gun ownership for hunting, sport or hobby.
2. Prohibit in New Mexico the sale of “ghost guns” parts. Ghost guns are guns that are manufactured and sold in parts without any serial numbers to be assembled by the purchaser and that can be sold to anyone.
3. Requiring in New Mexico the mandatory purchase of “liability insurance” with each gun sold as is required for all operable vehicles bought and driven in New Mexico.
4. Enact a gun violence restraining order and extreme risk protection process to temporarily prohibit an individual deemed by a judge to pose a danger to self or others, from purchasing or possessing firearms or ammunition and allow law local law enforcement to remove any firearms or ammunition already in the individual’s possession.
5. Restrict and penalize firearm possession by or transfer to a person subject to a domestic violence protection order or a person, including dating partners, convicted of a domestic violence misdemeanor.
6. Mandate the school systems and higher education institutions “harden” their facilities with more security doors, security windows, and security measures and alarm systems and security cameras tied directly to law enforcement 911 emergency operations centers.

On a federal level, congress needs to consider:

1. Implementation of background checks on the sale of all guns.
2. Close the “Charleston loophole” or “delayed denial” where federally licensed dealers can sell guns if three business days pass without FBI clearance.
3. Call for the update and enhancement of the federal National Instant Criminal Background Check system (NCIS).
4. Institute mandatory extended waiting periods for all gun purchases.
5. Implement mandatory handgun licensing, permitting, training, and registration requirements.
6. Ban “bump-fire stocks” as was used in the Las Vegas mass shooting and other dangerous accessories.
7. Ban future manufacture and sale of all assault weapons and regulate existing assault weapons under the National Firearms Act of 1934, and initiate a federal gun buyback program.
8. Impose limits on high capacity magazines.
9. Prohibit firearm sale or transfer to and receipt or possession by an individual who has: (1) been convicted in any court of a misdemeanor hate crime, or (2) received from any court an enhanced hate crime misdemeanor sentence.
10. Institute mandatory child access prevention safe storage requirements and prohibit the sales of handguns with “hair triggers”.
11. Provide more resources and treatment for people with mental illness.
12. Enhance accountability of federally licensed firearms dealers.
13. Implement micro stamped code on each bullet that links it to a specific gun.
14. Produce ‘x-mart guns’ with Radio Frequency Identification (RFID) or biometric recognition (fingerprint) capability.
15. Limit gun purchases to one gun per month to reduce trafficking and straw purchases.
16. Prohibit open carry of firearms.
17. Digitize Alcohol, Tobacco and Fire (ATF) gun records.
18. Require licensing for ammunition dealer.

CONCLUSION

Voters need to ask those running for congress how much they have received from the National Rifle Association over the years and what they are doing and where they stand on gun control.
Now that we are in an election year, New Mexico voters need to demand the positions from our candidates for United States Senator, Governor, and for the New Mexico legislature where they stand on gun control.

Until there is real change on the national level, we can continue to expect more mass shootings, more burials, more outrage, more sympathy expressed until it dies down for a few months and we have another mass shooting and the cycle starts all over again. I for one would like to see Dr. Brewer marvel at the repeal of the Second Amendment in his lifetime.

For further commentary on mass shootings see:

https://www.petedinelli.com/2018/02/15/what-we-hear-is-the-sounds-of-silence/

Since the inception of my political blog, one story I have followed very closely has been the disastrous ART Bus project having published numerous articles. With that said, I compiled a list of the articles for easy reference. Below are the links that can be click on to read the articles:

https://www.petedinelli.com/2019/12/06/halt-art-bus-system-before-someone-gets-killed-a-case-for-negligent-design-find-alternative-uses-for-art-platforms/

https://www.petedinelli.com/2019/11/26/as-art-to-start-bus-service-bus-ridership-plunges-anticipate-art-failure-find-alternative-usage-of-bus-stop-platforms/

https://www.petedinelli.com/2018/12/13/city-go-play-on-the-freeway-and-art-bus-platforms/

https://www.petedinelli.com/2019/07/18/john-b-strong-damage-from-the-failed-art-project-goes-far-beyond-just-central-avenue/

https://www.petedinelli.com/2018/12/10/mayor-keller-better-late-than-never-on-art-politics/

https://www.petedinelli.com/2018/12/06/call-your-bookie-place-your-bets-on-delivery-of-new-buses-for-art/

https://www.petedinelli.com/2018/11/21/your-bus-drivers-need-to-learn-how-to-drive-proven-technology/

https://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/

https://www.petedinelli.com/2018/11/14/arts-proven-technology-another-berry-big-lie/

https://www.petedinelli.com/2018/11/08/4762/

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

https://www.petedinelli.com/2018/08/22/on-to-the-next-republican-elephant-pile-of-dung-to-clean-up/

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

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

https://www.petedinelli.com/2018/03/07/to-be-clear-funds-were-never-guaranteed-that-was-simply-never-the-case/

https://www.petedinelli.com/2018/01/15/vowing-to-fix-problems-required-to-fix-by-law/

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

https://www.petedinelli.com/?s=Special+Grand+Jury&submit=Search

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

https://www.petedinelli.com/2018/05/04/albatross-rapid-transit-art-around-mayor-kellers-neck/

https://www.petedinelli.com/2017/12/14/leaking-new-civic-plaza-fountain-symbolizes-berry-administration/

https://www.petedinelli.com/2017/06/27/another-lie-from-the-city-hall-liars-club/

https://www.petedinelli.com/2017/03/16/biggest-lie-the-check-is-in-the-mail/

https://www.petedinelli.com/2017/03/13/the-city-hall-liars-club/

https://www.petedinelli.com/2017/02/22/remember-election-time-who-carried-the-mayors-water-on-art/

https://www.petedinelli.com/2017/02/17/hidden-costs-of-berrys-white-elephant/

https://www.petedinelli.com/2017/02/12/art-bus-project-funding-still-in-doubt/

https://www.petedinelli.com/2017/01/03/sneaks-we-is-when-funding-art-bus-project-and-capital-projects/

https://www.petedinelli.com/2016/11/18/art-bus-project-destroys-historic-route-66/

Mayor Tim Keller and APD Interim Chief Michael Geier are reporting progress in all areas of compliance with the Department of Justice’s Court Approved Settlement Agreement (CASA).

https://www.kob.com/albuquerque-news/city-provides-update-on-apd-compliance-with-doj-agreement/4945092/#.Wx7tkjcyFBl.facebook

APD acknowledged in the most recent a report filed with the Federal Court that a backlog of use of force investigations exists that are over 120 days old or had not been closed.

In response to the use of force backlog, APD defined and prioritized a review of the backlog and identified processes supervisors will have to follow when reviewing the investigations.

According to a court filing by city officials, the Albuquerque Police Department is developing a new streamlined use-of-force policy that was created with input from the community.

The “streamlined use of force policy” is nothing new in that it was already announced with great specify in mid-March:

https://www.petedinelli.com/2018/03/13/streamlining-apd-use-of-force-investigations/

Further, APD announced that Internal Affairs was divided into two sections: Internal Affairs – Force and Internal Affairs – Misconduct.

Interim APD Chief Michael Geier said of the changes:

“We take seriously the monitor’s recommendations to address use-of-force reviews so we can understand the magnitude of past problems. … We want objectivity and consistency in use-of-force investigations to ensure we are holding officers to the standards required under Constitutional policing.”

Mayor Tim Keller for his part said of the changes:

“Our administration is owning the responsibility of transforming law enforcement and creating a new APD. … We instituted the most extensive restructuring of APD in recent history, so that every taxpayer dollar we invest in the Department will result in an institutional commitment to community policing.”

The last announcement of an “extensive restructuring of APD” occurred a mere two and a half years ago on December 14, 2015 when then APD Chief Gordon Eden announced a reorganization of APD to get 80 more sworn police officers on the street and created the positions of Major.

The goal was again to renew APD’s commitment to community policing.

https://www.abqjournal.com/691340/apd-overhaul-to-put-cops-in-community.html

On December 15, 2015, APD had 836 sworn police and the goal was to grow APD to 1,000 for community policing and it never happened.

Under Mayor Tim Keller, APD currently has 898 sworn police officer positions filled and the APD budget commencing July 1, 2018 has funding for 1,040.

If performance history of APD’s academy is any indication, the city will be lucky to have 950 sworn police officers by this time next year.

DIVIDING A PROBLEM CREATES TWO PROBLEMS

The announcement that APD Internal Affairs has been divided into two sections, Internal Affairs – Force and Internal Affairs – Misconduct, should be viewed with great skepticism.

APD dividing Internal Affairs into two separate function will only create two sets of problems.

APD has consistently shown over many years it cannot police itself which contributed to the “culture of aggression” found by the Department of Justice.

The APD Internal Affairs Unit needs to be abolished and its functions absorbed by the Office Independent Council or Inspector General office in order to ensure and achieve true civilian oversight of APD.

The investigation of police misconduct cases including excessive use of force cases not resulting in death or nor serious bodily harm should be done by “civilian” personnel investigators.

The function and responsibility for investigating police misconduct cases and violations of personnel policy and procedures by police should be assumed by the Office of Independent Council in conjunction with the City Human Resources Department and the Office of Internal Audit where necessary.

“Deadly use of force” cases would continue to be investigated by the Critical Incident Review Team and the final reports with finding and recommendations submitted to the Police Chief for implementation and imposition of disciplinary action.

CONCLUSION

Self-proclaimed progress to the reform measures is something we have heard way too often during the last 3 years when it comes to the DOJ reforms only to find they were not true.

There were 5 times the Federal Monitor issued his status report that he took issue with APD management and reported resistance to change and the reforms by APD.

Just a few weeks ago, Interim Chief Geier and Mayor Tim Keller made proclamations that APD followed “all policy and procedures” and APD “did everything it could” in a child abuse case and the collection of the blood-stained garments of a 7-year-old child.

The APD Officer said he could not collect the child’s garment nor tag it into evidence and proceeded to trash the evidence.

The Mayor and the Chief were forced to reverse themselves when it was revealed that APD did not act on all the information it had access to from the Children Youth and Family Department.

As a result of media scrutiny, Mayor Keller also went so far as to apologize and ordered an Internal Affairs Investigation and announced major changes in policy when dealing with child abuse cases.

At the time of his apology to the Albuquerque Journal editors, Mayor Keller had this to say about APD:

“There are still lots and lots of issues at APD. The deep-seated bunker mentality culture goes right down to every unit and shows up in a different way. It’s just a realization that reforming APD in reality is going to be a unit-by-unit exercise and that is going to take years.”

During the March 15, 2018 day long status conference hearing on the consent decree, it was announced that the Federal Monitor would suspend preparing his six-month reports until November of this year.

The Federal Monitor also committed to provide “technical assistance” to APD as opposed to performing audits and gathering data.

Instead of preparing his usual 500-page boiler plate audit report, Federal Monitor James Ginger has been focusing on helping APD build the procedural infrastructure to be able to comply with the reforms.

Federal Monitor Ginger did not issue his seventh progress report in May, but instead is supposed to issue a “mini-report” in August of this year.

Both Mayor Keller and Chief Geier would be wise to let the Federal Monitor make the pronouncements in November if APD is in compliance before they try and take so much credit themselves and telling the public APD has made so much progress with the reforms and how committed APD is to the reforms.

A 73-page Office of Inspector General (IG) report found that former Mayor Berry’s Chief Operations Officer Michael Riordan allegedly “threatened” to terminate the city’s $22.9 million contract with the manufacturer of the special-order ART buses.

Michael Riordan was said to have demanded a new bus be delivered in time for Berry to ride and have a photo op before he left office so he could say ART was up and running.

https://www.abqjournal.com/1182905/report-company-sent-faulty-art-bus-due-to-city-pressure.html

The entire June 6, 2018 Inspector General report on the ART Bus project can be read here:

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

According to the Inspector General report, then 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 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 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.”

PROBLEMS WITH THE BUSES DELIVERED

After a full 7 months since former Mayor Berry dedicated the project as “up and running” Mayor Tim Keller reported the electric busses still do not hold a charge and the city is in “contract negotiations” with the manufacturer.

The electric buses delivered are supposed to operate for 275 miles but they cannot go more than 180 miles before they need charging, which means more buses or more bus stations are needed.

One month after taking office, Mayor Keller and his CAO Lawrence Rael did a press conference and a few of the many problems with the buses were outlined including:

• Some of the buses could not be charged because the charging system doesn’t work.
• Axles on the buses were leaking oil.
• The buses had not gone through the certification process required in order for the city to be reimbursed for the buses by the federal government. Rael said one of the ART buses put through the certification process did not pass.
• A third-party certification officer wouldn’t certify the chargers that have been installed. “The chargers themselves are not operable because they’ve used what looks like Chinese equipment and probably a different standard for how they built these boxes,” Rael said.
• Fully charged batteries on the buses are supposed to last for 275 miles, but the testing the city did indicated that the charge is only good for 200 miles, which means that the city will need additional buses for ART unless the problem was resolved.
• Restraint belts that are used to keep wheelchairs locked in place while they’re in transit are in different locations in almost all the buses.
• The battery cages that house the bus batteries were already starting to crack and separate.

In the last update of the project, Keller said the city is looking to “divorce” itself from the manufacturer and in the process of renegotiating the contract with the manufacturer.

Keller went so far as saying the buses were like the children where custody is being fought over.

You do not try and take custody of someone elses kids and Keller needs to tell the manufacturer to come and pick up their buses the city can’t use.

If a “divorce” is what Keller really wants, he needs to hire a good lawyer, file suit and seek civil damages for breach of contract for all the delays and breach of warranties relating to the buses.

Keller still desperately clings to hope the busses will be up and running by September or by the end of next year.

After review of the city’s Inspector General’s report, both the Mayor and the City Attorney’s office need to forward it to the New Mexico Attorney General’s Office for review to determine if there has been any violation of the New Mexico Unfair Trade Practices Act, or for that matter, fraudulent activity.

THE NEW MEXICO UNFAIR TRADE PRACTICES ACT

Over forty years ago, the New Mexico legislature enacted the Unfair Trade Practices Act. (57-12-1 to 57-12-24, New Mexico Statutes)

The entire statute can be reviewed here: https://law.justia.com/codes/new-mexico/2006/nmrc/jd_ch57art12-10897.html

The New Mexico Attorney General has primary responsibility to enforce the Unfair Trade practices Act. (57-12-15, Enforcement)

Under New Mexico the statute, unfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce is prohibited. (57-12-3)

As used in the Unfair Trade Practices Act [ 57-12-1 NMSA 1978]:
…
C. “trade” or “commerce” includes … offering for sale or distribution of any services and any property and any other article, commodity or thing of value, including any trade or commerce directly or indirectly affecting the people of this state;

D. “unfair or deceptive trade practice” means an act specifically declared unlawful pursuant to the Unfair Practices Act … , a false or misleading oral or written statement, visual description or other representation of any kind knowingly made in connection with the sale, lease, rental or loan of goods or services … .or mislead any person and includes:
…
(6) representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;

COMMENATARY: Berry’s photo op bus would seem to fall into this definition.

(7) representing that goods or services are of a particular standard, quality or grade or that goods are of a particular style or model if they are of another;

COMMENATARY: Berry’s photo op bus would seem to fall into this definition.
…
(9) offering goods or services with intent not to supply them in the quantity requested by the prospective buyer to the extent of the stock available, unless the purchaser is purchasing for resale;

COMMENATARY: There has only been partial delivery of the buses.
…
Where a jury finds that the party charged with an unfair or deceptive trade practice or an unconscionable trade practice has willfully engaged in the trade practice, the court may award up to three times actual damages (treble damages) to the party complaining of the practice. (57-12-10, B)

Attorney’s fees and costs can also be awarded to an aggrieved party. (52-12-10, C)

COMMENTARY

Notwithstanding any of the threats from the city, the bus manufacturer had the legal obligation to manufacture what was ordered in accordance with specifications under the purchase contract.

Further, the bus manufacturer did not disclose to the city what they were doing and what they were going to deliver when it came to Berry’s “photo-op” bus.

Based on the many problems identified with the buses and the findings of the City Inspector General’s report, it can be argued that the unfair trade practices act has been violated.

After reading the Inspector General’s report and all the irregularities found, it would be wise if the Albuquerque City Attorney’s office, and for that matter, the New Mexico Attorney General, to take the time to consider initiating a claim under the New Mexico Unfair Trade Practices Act, Section 57-12-1 et. seq. for city taxpayers.

The City of Albuquerque also has the private remedies available to it.

Litigation is why we have a city attorney’s office as well a risk management department.

It would be appropriate for Mayor Keller, City Legal and the Risk Management Department commit City’s resources in putting forth an effort to make taxpayers whole on the ART Bus project.

The Mayor and the City Attorney should also consider forwarding the Inspector General’s Report to the Bernalillo County District Attorney and request the convening of a special grand jury.

The city should at least make a reasonable attempt to hold the Berry Administration accountable for the disaster know as ART that has cost over $135 million and has destroyed historic Route 66.

“This is essential to protecting the public’s trust” quoting the Inspector General report.

For more blog articles on ART see:

https://www.petedinelli.com/?s=Special+Grand+Jury&submit=Search

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

https://www.petedinelli.com/?s=albatross+around&submit=Search

https://www.petedinelli.com/2018/01/10/the-lemons-and-lies-of-berrys-art/

College has a four-year curriculum to earn a degree.

When you’re the only student in the class, there is no bell curve grading and you rise and fall in grades with your own accomplishments.

June 1, 2018 marks Mayor Tim Keller’s anniversary for his first semester of his freshman year of his four-year term in office.

KELLER’S REPORT CARD AND CLASSES

Based on the list of accomplishments for Mayor Keller’s first 6 months in office, following are the classes and assigned grades:

PUBLIC RELATIONS: “A” because Mayor Keller attends all required public functions, appears to enjoy them all and makes himself available to the public. He represents the City in such a manner citizens can take great pride with the image he portrays as he appears and speaks always with a smile on his face and a grin in his voice.

EXPLANATION: Public Relations is like gym class. It is easy to get an A and it sure can raise your grade point average amongst voters and go a long way to get you re-elected.

APPOINTMENTS OF DEPARTMENT HEADS: “B” for being able to assemble a management team to coincide with his philosophy and to carry out his programs.

EXPLANATION: Appointing of department heads is considered an easy A because you surround yourself with people you like and they owe their loyalty and living to you. There is no problem making appointments based on political loyalty as long as the person appointed is qualified and can do the job. Political appointments need have a proper vetting process because they can make or break an administration. The grade was brought down to a “B” for Keller’s failure to have a proper vetting process in place for City Clerk and City Attorney.

PUBLIC SAFETY: “C” for proposing an APD expansion plan and indications he has the ability to work with the public safety unions of police and fire which have now approved contracts. The grade in this class has been reduced by the fact that Albuquerque continues to have high crime rates and the murder rate is out of control.

EXPLANATION: Public Safety is probably the hardest subject for any Mayor to undertake with any good grades usually very difficult to attain unless crime rates are down. High crime rates can make any one a one term mayor.

APD REFORMS: “D” for not going above and beyond to do more than making a commitment to implement reforms required under the Department of Justice Consent Decree.

EXPLANATION: This is probably the third hardest subject for Mayor Keller to tackle given APD’s history of resistance to the consent decree reforms. Mayor Keller’s grade was brought down for failing his first test to take issue with APD Chief Geier and defending APD’s evidence gathering in a child abuse case saying that no policies nor procedures were violated. The Mayor and Chief’s defense reflects nothing has changed with APD management.

ECONOMIC DEVELOPMENT: “F” for his total failure to outline any economic development plan to bring new industry and jobs to Albuquerque.

EXPLANATION: This is the second hardest subject, second to Public Safety, for any Mayor to tackle and affects virtually every citizen and the taxes they pay. If you do not bother to take an exam, you should expect a failing grade.

ACCOMPLISHMENTS GRADES BASED UPON

Mayor Keller’s accomplishments the first six months that his grades are based on can be summarized as followings:

1. Appointed experienced city hall people like James Lewis, Lawrence Rael and David Campbell to key positions and woman to executive positions including Sarita Nair as Chief Administration Officer, Shelle Sanchez as Cultural Services Director, Mary Scott as Human Service Director and Ana Sanchez as Senior Affairs Director and Nyka Allen as Aviation Director.

2. Appointed a new Interim APD Police Chief and Interim Deputy Chiefs who are either retired or from within APD and shuffling and reorganizing the APD command staff and personnel staff. These interim appointments have stabilized the department somewhat.

3. Publicly committed to a federal judge in private and a court hearing to implement the Department of Justice reforms which are required under the Court Approved Settlement Agreement (CASA). The Federal Monitor is now providing “technical assistance” to APD and APD now has a compliance bureau.

4. Signing a city council-initiated $55 million dollar a year tax increase. Keller broke a campaign promise not to raise taxes without a public vote. The increased tax revenues raised is going towards a projected $40 million deficit. 80% of the new tax revenues are dedicated to public safety.

5. Submission and enactment of a $577 million balanced general fund budget with highlights including increases in funding for more police, increased funding in social services and youth programs and $1.5 million to address the backlog of more than 4,000 untested rape kits. APD has 898 sworn police when you include a recent graduating cadet class. The 2018-2019 approved budget funds 1,040 full time sworn police officer positions.

6. Proposed an $88 million-dollar APD police expansion program over 4 years increasing the number of sworn police officers from 898 positions filled to 1,200, or by 302 sworn police officers, over a four-year period. Keller has vowed to return to community-based policing.

7. Attempting to salvage the $135 million ART bus project calling it “turning lemons into lemonade”. Keller has yet been able to secure the $69 million federal grant funding from congress after going to Washington and lobbying for a commitment.

8. Negotiating a $8 million settlement with the Albuquerque firefighters union, ending a pay raise dispute that dates back to 2011 when the previous administration was at impasse with all the City Unions.

9. Successful negotiation of a two-year contract with the police union providing for $12.2 million dollars in hourly wage increases and longevity pay increases to experienced police officers.

10. Announcing implementation of major changes to the city’s twenty five-year old DWI vehicle forfeiture program in response to a federal court ruling in a pending case. The policy change includes the city not seeking ownership of a vehicle and sell it at auction unless the suspect is convicted of DWI.

11. Signing a symbolic decriminalization of pot ordinance and a symbolic City Council resolution reaffirming Albuquerque is an “immigrant friendly” city as opposed to a “sanctuary city”, with both initiatives being city council initiatives and not the Mayor’s.

12. Mayor Tim Keller has taken photo ops to a new level by attending protest rallies to speak at, attending marches, attending heavy metal concerts to introduce the band, running in track meets and participating in exhibition football games as the quarterback and enjoying re-living his high school glory days, and posting pictures and videos on FACEBOOK. People can take great pride with the positive image Mayor Keller is portraying.

SIX LOW TEST SCORES

Mayor Keller was given low scores in 6 tests that have affected his grades:

1. Vetting and appointment missteps with a City Clerk nominee and City Attorney. The first City Clerk nominee withdrew her acceptance of her appointment because her financial problems and tax lien problems. The City Attorney was evetially appointed had not applied and was appointed after the job posting closed and interviews were conducted.

2. Appointment of a 5-member selection committee and process for a permanent APD Chief with no representatives on the chief’s selection committee from the general public, the city council, American Civil Liberties Union, APD Forward, the District Attorney’s Office nor Public Defenders Office, nor any Hispanic, Native American or other minority groups nor communities affected by police actions. There is no representation on the selection committee from any one of the stake holders in the Court Approved Settlement Agreement (CASA).

3. Mayor Keller failed his first major test in dealing with APD in the evidence gathering of a child abuse case where the blood-stained underwear of a seven-year-old child was collected by the child’s teacher and the clothing was thrown out and not tag by APD. Initially, both Mayor Keller and Interim Chief Geier insisted that no one with APD violated any policies or procedures and said that officers and detectives did everything they could with the information they had at the time. After extensive media coverage, an Internal Affairs Investigation was announced. Keller then announced policies changes after meeting with the Albuquerque Journal editorial board giving an apology.

4. Since taking office on December 1, 2018, Mayor Keller has been trying to clean up the $135 million-dollar disaster known as the ART Bus Project. The Keller Administration itself created a problem with the ART buses when it took delivery of at least 10 of the buses in California where the buses were assembled. Instead of being shipped by rail, the buses were driven across country and sustained damages which may not be covered by the warranty or have voided the warranty.

5. Since January 1 of this year, Albuquerque has had 35 murders and counting. Mayor Keller failed to address the community on what he will do about the city’s murder rate, if anything can be done, other than hiring more cops to patrol our streets and increase APD response times to 911 emergency calls.

6. There have been repeated mis communications, conflicting communication or no communications at all by the City’s public information officers on major news stories. Albuquerque appears to have a Mayor whose PIOs have no idea what his decisions are, nor understanding what his directives are, what he wants said to the media nor what he wants his top executives to be saying.

CONCLUSION

Trajectory indications from Mayor Keller’s first six months in office, the media relations, the executive appointments made and the accomplishment are that Albuquerque is set to have another uninspiring approach to government filled with extensive photo ops, ribbon cuttings and social media communications.

Mayor Keller has three and half years left in office to get his grades up, but if his first semester grades are any indication of what we are in store for, he may not graduate to any higher office let alone be re-elected Mayor come 2021.

ABQ Report: Berry’s Administration Might Have Broken IRS Rules on ART Payments

June 7, 2018

By Dennis Domrzalski, ABQ Reports

Former Mayor Richard Berry’s administration appears to have violated federal tax rules in the way it paid for the $135 million ART project, according to a report on the ART project released Thursday by the city’s Inspector General’s office.

The entire report can be read here:

https://drive.google.com/file/d/1fA-RD6dk6lp3DZgQzQCWVEVbziQ2vXov/view

The city had to pay for ART construction out of its own funds because it still hasn’t gotten A $75 million grant from the Federal Transit Administration that is was hoping for. To pay for the construction, which is basically complete, the city appears to have used general obligation money that was approved by voters and dedicated to specific projects.

But exactly which capital projects were raided isn’t known because Berry’s administration commingled capital projects funds into a single account and paid for ART out of that fund, said the report by IG David Harper.

“The City funded the construction of ART in part using funds derived from GO Bonds that taxpayers intended to be used for other projects based on the bond descriptions at the polling booths,” The City’s bond counsel advised that bond funds need to be used for the intended projects within three years per IRS rules.”

In addition, the 73-page report said that Berry’s administration threatened the company that is building ART’s 20 electric buses if it didn’t get the city at least one bus before Berry left office on Nov. 30, 2017. Berry’s administration threatened to cancel its $23 million bus contract with the company, BYD, if it didn’t deliver the city a bus before Berry left office, the report said.

The bus that BYD did deliver to Berry’s administration was built on a chassis for another transit agency and wound up not meeting Albuquerque’s specifications, Harper’s report said.

And, Harper’s report said that BYD and ART’s contractor, Bradbury Stamm Construction, might have violated the city’s ethics policies by buying meals for city employees working on the ART project.

So far the city has spent $108.1 million on ART. Some of that is from federal grants and city revenue bond money. But if the city doesn’t the the FTA grant, it could be more than $90 million in the hole for the project, the report said.

So far, the city has paid Bradbury Stamm $87 million.

Here are the report’s main findings:

1. The City funded the construction of ART in part using funds derived from GO Bonds that taxpayers intended to be used for other projects based on the bond descriptions at the polling booths. The City’s bond counsel advised that bond funds need to be used for the intended projects within three years per IRS rules.

2. The City expended possible restricted funds without a federal grant agreement in place. Should the federal government not provide a grant to reimburse the funds used, there will be considerable financial ramifications. The City may not have followed GASB (Government Accounting Standards Board) standards for accountability regarding restricted funds and avoiding “negative cash” flows. The City does not have a contingency plan should the federal government fail to provide the anticipated $75 million.

3. On 30 May 2018, FTA Region 6 advised that federal funding could not be used for the electric buses until a bus completed and passed the Altoona Testing in Pennsylvania and the remaining buses were modified to match the bus that passed testing. On 30 May 2018, the Assistant Maintenance Manager, DTF, advised that a bus was at the Altoona Testing site in Pennsylvania, but testing has not started on the bus. He said the testing is expected to begin within the next week. He said that the testing for diesel buses typically last about 13 months, but testing for the electric bus will probably require additional time due to the need to recharge the batteries. Therefore, it appears that federal funds for the buses will be delayed a minimum of 13 more months for the testing and additional time for the remaining 19 buses to be modified.

4. There were several quality issues that impacted buses and may have contributed to the delay in delivering buses. The City has been engaged with BYD to address the problems and also is considering options to ensure there is proper and fair contractual consideration.

5. Typically, the first item that is provided by a contractor should be the “First Article” that is used by the purchaser to assess and determine if there was compliance with all specifications. This did not occur in the purchase of the BYD buses and in fact, City officials knowingly “accepted” a bus that was manufactured on a platform and to the specifications of a bus intended for the AVTA, with the intent of using the bus for public relations, which included a publicity event involving the former Mayor and other publicly elected leaders and officials. This was not within the contract and may have contributed to the further delay of receiving buses that complied with the contract. As indicated in the report, this was described as a “loan.” However, the BAA Audit report characterizes the bus as the “first production bus in the order, VIN 38022, which was delivered to the City on August 7, 2017.”

6. The Mayor addressed the public shortly after beginning his term regarding several challenges with the buses (including the batteries) and construction from both an ADA and non-conformance perspective; BSC has corrected most of the ADA issues and continues to correct non-compliant situations.

7. The inspection disclosed concerns with the BAA Audit Report in that there are assertions and references to documents that do not exist, to include the “Resident Inspector Report.” This is problematic that there were certifications appended to the Report that affirmed the report existed and that the City had inspectors validating the BAA status.

8. The City’s approach to providing inspections of the assembly process did not appear to be sufficient and lacked continuity. The City did not establish selection criteria based on the complexities of conducting inspections of a new product – electric buses, but rather selected employees who volunteered to travel for a two week period. The City did not provide any formal training and did not develop an inspection checklist specifically for the electric buses. The City did not develop a manual or guide for use by the inspectors during the inspection process.

9. The City awarded several contracts to complete the ART project, with the two most significant contracts being awarded to BYD for the electric buses and BSC for the construction. The City used solicit offerors using an RFP and then selected the contractors using an “Ad Hoc Advisory Committee” (commonly referred to as a selection or evaluation committee). In a “post-TASER” environment (a prior OIG investigation focused on allegations of favoritism and conflicts of interest involving a former police chief for the APD and TASER, the company that provided on-body cameras to APD), it is important to go great lengths to ensure there is not even the appearance of partiality, biases and undue influence in the selection processes. The inspection disclosed that both Ad Hoc Advisory Committees included high level City appointed officials and deputy directors to the appointed officials, rather than including more disinterested, but technically qualified, members, such as professors for the local universities, members from City commissions, and officials from county or state agencies that have similar services.

10. The inspection disclosed concerns regarding ethics and impartiality in the contract administration process. A senior official at BYD purchased at least one meal for almost all inspectors and even twice for one inspector. While the value of the meal from the point of view of the inspector may have been de minimis, the value of funds expended by the BYD official were significantly more in the aggregate and furthermore, blurs the line of avoiding even the appearance of impartiality in the inspection process.

11. In addition to the prior observation, inspection activity revealed that BSC provided meals and other items free of charge to senior level City officials, to include an elected official and appointed official. As before, while any individual meal may have been considered de minimis to the employee, in the aggregate, the cost to BSC was potentially substantial considering the venue. Again, it is important for both City employees and contractor personnel to go to extreme lengths to avoid the appearance of biases, conflicts and partiality. This is especially true given the contract was ongoing at the time and most likely, BSC will compete for future contracts.

https://www.abqreport.com/single-post/2018/06/07/Report-Berrys-Administration-Might-Have-Broken-IRS-Rules-on-ART-Payments