On April 8, 2018, VB Price wrote a column entitled “Albuquerque and UNM: Losing Their Sense and Purpose and Identity”.

Below is the link to the entire V.B. Price article:

http://mercmessenger.com/albuquerque-and-unm-losing-their-sense-of-purpose-and-identity/

The article is a sweeping and critical look at what is happening to both the University of New Mexico and the City of Albuquerque when it comes to leadership and what is happening to both UNM and the City.

The article is an insightful read, especially given the fact V.B. Price advocated for Tim Keller’s election.

Two of the many paragraphs stick out to City Hall observers when V.B. Price penned:

“… What’s happened to Albuquerque’s mayor? … Why is Tim Keller seeming more and more like the former mayor — invisible and uninspiring, despite his flurry of good moves following his election victory? Who’s leading the substance and image of [the city] … these days?
…
“Right now it feels as if both the city and the university are little better than flotsam and jetsam, rudderless and without the sense of purpose that individuals and groups need to thrive. This sorry state must not be allowed go on much longer, or both institutions will lose their spirit and allow temporary mediocrity to become a permanent given never again, perhaps, to be transcended.”

KELLER TRANSITION IS OVER

The first 5 months for any new Mayor is a transition period and is referred to as the “Honeymoon Period.”

The transition time is used to hire staff and make appointments and prepare a budget that is required to be submitted every April 1 to the city council for the upcoming fiscal year.

The first 5 months of any elected officials term usually sets the tone and the direction for the entire remainder of the term.

The people appointed to key executive positions help the Mayor set the trajectory for the entire term assuming they are around for the full four-year term.

Mayor Tim Keller’s Honeymoon Period is over, he has been on the job now for 5 months and he has appointed most if not all of his Directors and has submitted his first budget to the City Council for budget hearings and final approval.

The tone and picture of the Keller Administration is coming into clear focus and the time has come to take notice what has been accomplished.

APPOINTED KEY EXECUTIVES

Mayor Keller has received kudos for the appointments of experienced city hall people like former New Mexico Treasurer James Lewis as Senior Public Safety Advisor, Lawrence Rael as Chief Operations Officer, Attorney David Campbell and former CAO for Mayor RJ Berry as Planning Director and APD Chief Michael Geier as Interim Chief, who retired from both APD and the Rio Rancho Police Department, with all 4 appointments considered safe and not generating controversy.

Keller has also received kudos for the appointment of numerous woman to key executive positions such as Sarita Nair as Chief Administration Officer, Alicia Manzano as Communications Director, Nyka Allen as Aviation Director, Shelle Sanchez as Cultural Services Director, Justine Freeman as Deputy Chief of Staff, Mary Scott as Human Service Director and Ana Sanchez as Senior Affairs Director.

There have been two stumbles with the appointments.

The first stumble was the appointment of 41 year old Estaban Aguilar, Jr. as City Attorney who to be clear is qualified but who was solicited by the Keller Administration to apply after the application process closed.

The second stumble was with the appointment of City Clerk, with the first nominated candidate withdrawing her application after media scrutiny of her finances and tax problems.

The most common criticism from City Hall insiders is that Mayor Keller has surrounded himself mostly with people with little or absolutely no city hall experience, which is a common complaint with any new Mayor.

Another complaint from city hall insiders is that the Keller appointees do not really know nor understand what they are doing with the biggest common denominator seeming to be that that they are in the same age group as Mayor Keller, who is 40.

THE TONE HAS BEEN SET WITH DECISIONS MADE

In his first five months in office, Mayor Keller’s biggest accomplishments can be listed as follows:

1. Appointing a new interim police chief who is a retired APD commander and former Rio Rancho Police Chief and who by all accounts is doing a good job thus far. However, there has been no announcement of a national search for a new chief as promised by Keller during the campaign. APD insiders are suggesting that the Mayor has already decided to keep Interim Chief Geier and make him permanent and that there will be no national search for a new chief.

2. Replacing the APD command staff. The “new” command staff is more of a reflection of APD’s past. The “new” command staff, especially the Deputy Chiefs, are not outsiders at all but have been with APD for some time. The new command staff do not reflect a new generation of police officer fully committed and trained in constitutional policing. All the previous commanders have been shuffled around with a few retiring. There has been an elimination of the positions of Major which was created a mere 3 years ago by the previous administration. The new reorganization of APD under Keller is a remarkable look alike to what existed under Chief Schultz.

3. Attempting to salvage the $129 million ART bus project, the failed legacy project of his predecessor. Mayor Keller is calling it “turning lemons into lemonade” and trying to secure the $69 million federal grant funding from congress that probably will never be appropriated by congress. Major problems have been identified with most if not all of the buses, but the Keller Administration to date has declined to cancel the $25 million-dollar contract with the bus manufacturer.

4. Negotiating and approving an $8 million settlement with the Albuquerque firefighter’s union, ending a pay raise dispute that dates backs to 2011 when the Berry Administration was at impasse with virtually all the City Unions. The settlement was made so quickly after Keller assumed office that the Albuquerque Journal made the charge that the case was settled as Keller’s way of paying back the union for its endorsement and financial support during the Mayor’s race.

5. Proposing an $88 million-dollar police expansion program over 4 years. The Keller Administration is proposing to increase the number of sworn police officers from the current 878 positions filled to 1,200, or by 322 sworn police officers, over a four-year period and return to community-based policing. The Keller Administration proposed 2018-2019 provides for increasing funding of 1,000 sworn police to 1,040. In order to get to the 1,040 figures by this time next year, APD and the Police Academy will need keep up with expected retirements and will have to hire at least 162 new officers either as new recruits or as lateral hires which is a taunting and not a likely task. No specifics have been announced regarding new recruitment incentives.

6. Commitment to implementing the Department of Justice reforms. Keller has met with the Federal Monitor and appeared before the Federal Court assuring them both that APD will implement the mandated reforms, something the City really has no choice but to comply with in order to get out from under the consent decree. During the last three years, the Berry administration and APD command staff resisted the reforms. You can anticipate the reform process will take at least another three years to implement. Thus far, significant progress has been made by the Keller Administration with a stronger commitment to implement the agreed to reforms. The Federal Monitor is now providing “technical assistance” to APD and APD now has a compliance bureau.

7. Signing a city council-initiated $55 million dollar a year tax increase contrary to Mayor Keller’s promise not to raise taxes without a public vote. The revenues raise will go towards the projected $40 million deficit and 80% of the revenues from the tax will go towards public safety. On the campaign trail, candidate Keller said he would raise taxes only as a last resort for public safety but only with voter approval. Keller making the promise as a candidate was at best idealistic and at worse being foolish just to garner votes to get elected.

8. Announcing implementation of major changes to the city’s DWI vehicle forfeiture program. The changes were quickly announced within a week after a federal court ruling in a pending case. APD will continue seize and impound vehicles at the time of arrest as they do now with repeat drunken drivers arrested in their own cars. Changes to the policy will provide more protections to those who were not driving when their vehicle was seized. A major change in policy is that the city will not seek to take ownership of the vehicle and sell it at auction unless the suspect is convicted. What the changes in the new policy means is that unless the actual owner is sitting in the front seat of their car drunk, the city will probably not be initiating vehicle forfeiture proceeding nor seeking boot agreements from the car owner.

9. The Keller Administration is committing $1.9 million to address a backlog of more than 4,000 untested rape kits and implementing a testing program. The rape kit backlog was identified by Keller when he was the State Auditor. It is critical that the backlog of rape kits be processed for felony prosecutions. All too often, DNA evidence and a victim’s testimony are the only evidence available to obtain a conviction for rape and child sexual abuse. DNA evidence found in rape kits is the type of evidence used to identify and convict rapists, especially serial rapists. All too often, DNA evidence results in a conviction of an innocent defendant being thrown out and another criminal identified.

10. Signing what is widely considered a symbolic decriminalization of pot ordinance. The City Council enacted an ordinance requiring APD to issue citations and $25 fines for small amounts of marijuana, but pot possession is still a federal felony. APD officers already have a wide discretion in making arrests and arresting someone for pot possession has always been a low priority.

11. Signing a City Council resolution reaffirming Albuquerque as an immigrant friendly city. The resolution passed the City Council along party lines by a 6-3 vote. The resolution reiterates the city’s policies that prevent federal immigration officials from entering city-operated areas, restrict city employees from collecting immigration status information, and prohibit local tax dollars from being spent on federal immigration law enforcement.

Some progress has been made with reducing property crime rates for the first quarter of this year as compared to first quarter of last year, but it is premature to list this as a major accomplishment because it is for a 3-month period.

Offsetting the reduction in property crime rates is the homicide rate.

Not a week goes by that another murder is being reported.

As of April 24, 2018, Albuquerque has had 24 homicides since January 1, 2018.

The Keller Administration has yet to announce any economic plan nor what its approach will be taking towards economic development.

No plans nor goals to turn our economy around that are any different from the previous administration have been announced.

ANSWERING THE QUESTION

V.B. Price asked the question “Why is Tim Keller seeming more and more like the former mayor — invisible and uninspiring, despite his flurry of good moves following his election victory?”

http://mercmessenger.com/albuquerque-and-unm-losing-their-sense-of-purpose-and-identity/

The answer to the question is that many believe Mayor Tim Keller is slowly morphing into a photogenic version of his Republican predecessor.

Keller seems to be more concerned about public perception, appearing before friendly audiences and crowds, and offering no real change and no substantive leadership direction.

Indications that the Keller Administration is seeking to avoid controversy include the use of press releases to announce major policy changes or decisions, using the Mayor’s FACEBOOK page to make policy announcements and do controlled videos of the Mayor with an emphasis on photo ops and social media communications.

News releases and social media communications also give the advantage of not having to explain the rational nor reason for a decision with no questions asked by the media nor public with any negative comments or posts on FACEBOOK that can be quickly deleted and critics “blocked”.

From a public relations standpoint, it appears Mayor Keller attends all the obligatory ribbon cuttings, dedications and social events and appears to enjoy them all and making a good impression with his comments.

Mayor 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 smiling pictures on FACEBOOK.

KELLER’S MANDATE FOR CHANGE

Mayor Tim Keller was swept into office with a 62% vote landslide giving him a mandate for change.

High crime rates, public safety, the Albuquerque Police Department, the Department of Justice reforms, the economy and increasing taxes were the biggest issues debated in the 2017 Mayor’s race.

During the last eight years, Albuquerque has fallen to the bottom and in many cases dead last of every meaningful ranking in the country, including economy, jobs, crime, education, real estate, desirability, and traffic.

Under the command leadership of Suzanna Martinez and former Mayor Richard Berry, New Mexico and Albuquerque no doubt have become shipwrecks.

At the very least, the State and City are in distress, rudderless and without the sense of purpose and little better than “flotsam and jetsam” as was described by V.B. Price in his commentary.

http://mercmessenger.com/albuquerque-and-unm-losing-their-sense-of-purpose-and-identity/

In 8 months we will be rid of Governor Susana Martinez and she will quickly join Mayor Richard Berry into political oblivion.

The Keller administration still has time on its side to make changes and make a difference, but 4 years does indeed go by fast, something many would dispute in the age of Donald Trump.

Mayor Keller has yet to take any substantive advantage of his mandate and voters are not seeing the sweeping, visionary change he promised.

Notwithstanding, voters are expecting results and they are impatient after 8 years of failed leadership, high crime rates and a poor economy.

CONCLUSION

The Keller Administration is still in its infancy, and many voters are loyal with high hopes.

However, the tone and direction the Keller Administration is taking does not represent visionary change and frankly not much of change at all, especially with APD management and economic development.

The trajectory indications from the transition period, the media relations, the executive appointments made and the accomplishment are that Albuquerque is set to have another uninspiring, low key approach to government filled with extensive photo ops, ribbon cuttings and social media communications.

Mayor Keller needs to be more aggressive on the difficult issues the city is facing, especially when dealing with APD, our high crime rates and our economy.

Otherwise, Mayor Keller’s first term will be his last, and it will be viewed as Mayor Berry’s third term in office with not much to point to as far as real accomplishments in the areas of reducing crime and improving the economy.

After nearly a full ten years, New Mexico’s unemployment rate is beginning to drop.

https://www.abqjournal.com/1161413/nm-unemployment-dips-to-5-6-percent.html

In 2009, New Mexico’s unemployment rate was above 7% and then went to 8% and beyond at the start of 2010.

In February, 2018 New Mexico’s unemployment rate was 5.8 percent.

A year ago, according to the state Department of Workforce Solutions, the state’s unemployment rate was 6.3 percent a year ago.

Between March 2017 and March 2018, total nonagricultural payroll employment in New Mexico grew by 8,900 jobs, or 1.1 percent.

The state’s unemployment rate for March, 2018 dipped to 5.6 percent which is the lowest unemployment level since December, 2008.

Construction continued its upward climb, with an employment increase of 6.8 percent.

For March of this year, New Mexico was one of only 4 states to see an unemployment decrease.

Notwithstanding the decline in unemployment, according to federal statistics, New Mexico is still ranked as the second-worst in the nation in unemployment.

ALBUQUERQUE’S PROJECTED JOB GROWTH

During the last eight years, Albuquerque has fallen to the bottom and in many cases dead last of every meaningful ranking in the country, including economy, jobs, crime, education, real estate, desirability, and traffic.

Even though Albuquerque is the largest city economy in the State, New Mexico is number two in unemployment and number one in children living in poverty.

It has been reported that Albuquerque lost 14,900 jobs during the last 10 years, which is roughly 4 jobs a day.

Mid 2016, the Bureau of Business and Economic Research (BBER) at the University of New Mexico (UNM) did a report on Albuquerque’s economy and outlook.

BBER used local statistics and national forecasts of our state and local economy to come up with a job history and job projections.

A portion of the University’s BBER 2016 report and forecasting model was contained in a section of the City of Albuquerque’s Proposed Budget for Fiscal Year 2017-2018.

Most of the data has remained constant with no dramatic changes over the last year, with the exception perhaps being and uptick in construction and the service industries.

(See City of Albuquerque “Proposed Budget Fiscal Year 2018, pages 46, 47, 48, 49 atwww.cabq.gov/dfa/budget/annual-budget)

According to the BBER report, the Albuquerque economy declined in sync with the national economy but lagged in its recovery.

Total employment in the Metropolitan Statistical Area (MSA) increased in the third quarter of 2012 but this gain was due to a change in processing by the department of Workforce Solutions and not in actual employment.

The 4th quarter of 2014 and all following quarters through the 1st quarter of 2016 show increases with growth.

The growth in total employment in FY/2014 was 0.4% and FY/2015 growth in total employment was 1.4% and with one estimated quarter FY/2016 was expected at 1.7%.

The Albuquerque economy lost over 27,000 jobs from FY/2008 to FY/2012 a loss of 7% of total employment.

About 13,000 jobs were added in FY/2013 to FY/2016.

In FY/17 employment was expected to increase 1.5% and remain near this level for the remainder of the forecast.

According to the BBER report, Albuquerque’s economy does not approach FY/2008 employment levels until FY/2019.

Government employment limits growth, with private sector employment growth exceeding total employment growth from FY/12 through FY/21.

CONCLUSION

City hall’s Economic Development Department need pay far more attention to Albuquerque’s growth industries if the city is going to have any chance of turning our economy around.

Our next Governor, who will be elected in November, with a little luck will be dealing with an improving economy and a surplus in tax revenues thanks to oil and gas production.

Notwithstanding, come January 1, 2019 with the swearing in of a new Governor, the Governor and our new Albuquerque Mayor need to work together as much as possible and come up with a viable solution to diversifying our economy with less reliance on federal government spending.

On Wednesday, April 18, 2018, the President and Vice President of Federal Reserve Bank of Kansas City, Esther George and Alison Felix respectively, spoke in Albuquerque to a business and banking group.

The topic of their presentation was recent economic trends in New Mexico.

https://www.pressreader.com/usa/albuquerque-journal/20180419/281861529099809

Needless to say, the outlook for New Mexico’s economy remains less than stellar and there were very few bright spots seen by both Federal Reserve officials.

Federal Reserve Bank of Kansas City President Esther George reported three economic trends were worth noting:

1. State and local government comprise approximately one fourth of all employment and this creates a “drag” on the economy when government is reduced in size.

DINELLI COMMNETARY: Reliance on federal government spending, including the national labs and the military bases, has always been part of New Mexico’s problem in failing to diversify our economy.

2. The number of adults ages 25 to 54 has declined in New Mexico over the past decade, which could challenge growth prospects for the state economy.

DINELLI COMMENTARY: The United States Census has reported consistently for the last 8 years that New Mexico is losing population while virtually all the surrounding states are increasing in population and have pulled out of the great recession. A year ago, Albuquerque Business First reported how Wallet Hub found that New Mexico ranked fourth worst in the country for millennials (people born roughly between 1980 and 2000) for employment opportunities.

3. Employment demands in New Mexico appear to be shifting to low skill jobs, while the demand for high-skill jobs is holding steady.

DINELLI COMMENTARY: Economic studies preformed by the University of New Mexico have consistently reported that over the last four years, the service and tourist industry, including call centers, has grown. Further, New Mexico institutions of higher learning or training such as our community colleges are capable of meeting training demands, but simply put, there are no jobs being generated because of flat economic development.

Federal Reserve Bank of Kansas City Vice President Alison Felix reported other economic trends worth noting:

1. New Mexico’s employment growth over the past year has picked up. Employment growth has gone from a negative 1.1% over the past ten years to a 1.4% growth over the past year.

DINELLI COMMENTARY: Although this is positive news, the reality is all surrounding states have been experiencing incredible job growth. According to an August 11, 2017 US News and World report, New Mexico’s economy continues to grow, but the working population has decided to leave the state. According to the report, those between the ages of 30 and 59 “are fleeing by the masses, taking kids with them who researchers say are unlikely to return.” People are leaving New Mexico for a number of reasons, including the lack of jobs. Nearby states are offering better job opportunities.

2. Most industries in New Mexico have added jobs over the past year, particularly in the construction, financial activities, natural resources, mining and oil and gas industries.

3. Oil production has reached record levels and oil prices are expected to remain around $60 per barrel for the next two years.

DINELLI COMMENTARY: The increase in oil production and prices is considered by many as the number one reason New Mexico government is no longer faced with a deficit and now has a surplus.

4. The migration of people leaving the state appears to be slowing.

5. The good news is that home prices are now approaching previous peak levels, but the bad news is that new residential construction remains at pre-recession levels.

6. The tourist industry in New Mexico continues to be a bright spot as far as growth and a key component for the growth in our economy.

7. Farming is a major industry in New Mexico and farm income is now projected to decrease slightly this year due to decreases in revenues for some commodities that offset others.

The most discouraging news is that New Mexico’s 5.8% unemployment rate is the second worst in the nation.

DINELLI COMMENTARY

During the last eight years, Albuquerque has fallen to the bottom and in many cases dead last of every meaningful ranking in the country, including economy, jobs, crime, education, real estate, desirability, and traffic.

Even though Albuquerque is the largest city economy in the State, New Mexico is number one in unemployment and number one in children living in poverty.

It has been reported that Albuquerque lost 14,900 jobs during the last 10 years, which is roughly 4 jobs a day.

According to one Brookings Institution report, the Albuquerque metro area’s economy was so bad between 2009 and 2014 that it almost fell off the charts of three measures of economic health.

Of the largest 100 metro areas in the U.S., Albuquerque ranked 100th, 99th and 83rd in the three areas measured by the Brookings Institute: Growth, Prosperity and Inclusion.

According to the same Bookings Institute report, economically hobbled cities like Jackson, Miss., and Rochester, New York, fared better than Albuquerque. Albuquerque ranked 99th for economic growth, 83rd for prosperity and 100th for inclusion, which measures how an area’s poorest residents are doing in the economy.

According to US Census reports, more people are leaving the State than moving in, and our youth are leaving Albuquerque in droves to seek employment with a future elsewhere even after they get their college education at our universities.

On October 1, 2017 Wallet Hub, a personal fiancé website, published the story “Fastest Growing Cities In America”.

https://wallethub.com/edu/fastest-growing-cities/7010/#city

Albuquerque ranked 450th in economic growth among 515 cities in the United States according to the Wallet Hub report.

Wallet Hub ranked the cities using 15 metrics, including population growth, unemployment and poverty rate decrease, job growth and other measures.
Among large cities, Albuquerque ranked 60th out of 64.

Among all cities, Albuquerque fared especially poorly on unemployment rate decrease (481); job growth (446); growth in number of businesses (443); median house price growth (433), and regional gross domestic product growth (433).

According to US Census reports, more people are leaving the State than moving in, and our youth are leaving Albuquerque in droves to seek employment with a future elsewhere even after they get their college education at our universities.

The truth is, Albuquerque recovery is well over four years behind the national economy in terms of reaching post-recession employment levels.

Government employment limits growth, with private sector employment growth exceeding total employment growth from FY/12 through FY/21.

CONCLUSION

Construction has improved somewhat and is now helping the economy according to the Federal Reserve Officials.

The unemployment rate is expected to slowly decline to 5.3% in FY/20 and FY/21.

City hall’s Economic Development Department need pay far more attention to Albuquerque’s growth industries if the city is going to have any chance of turning our economy around.

Our next Governor, who will be elected in November, with a little luck will be dealing with an improving economy and a surplus in tax revenues thanks to oil and gas production.

Notwithstanding, our New Governor and our new Albuquerque Mayor need to work together as much as possible and come up with a viable solution to diversifying our economy with less reliance on federal government spending.

Federal Reserve Vice President Alison Felix closed by saying “Things are improving. We are seeing a lot of substantial gains, but New Mexico has a long way to go”.

New Mexico and Albuquerque do do indeed have a long way to go, let’s hope we can really get there.

Media stories have covered the city’s actions under “nuisance abatement” ordinances and state laws without much of any explanation what constitutes a “nuisance” or a “public nuisance”.

The two major city programs that enforce nuisance abatement laws are the city’s attorney’s DWI Vehicle Forfeiture program and the Safe City Strike Force.

The media gives very little explanation on how the two major programs enforce nuisance abatement laws.

One involves vehicles, while the other deals with real property that has become magnets for crime.

At the risk of reading too much like a legal brief, following is a short summation of state law and city ordinances and the two city programs.

DISCLAIMER NOTE: Anyone who reads this blog article needs to keep in mind that free legal advice, free legal opinions and free legal commentary are only worth what you pay for them and any reliance on the article and content is at your own risk. (Being a retired lawyer does have its advantages.)

NEW MEXICO STATUTES ON NUISANCE ABATEMENT

New Mexico statute defines a “public nuisance” as consisting “of knowingly creating, performing or maintaining anything affecting any number of citizens without lawful authority which is either:

“A. Injurious to public health, safety and welfare; or
B. Interferes with the exercise and enjoyment of public rights, including the right to use public property.
Whoever commits a public nuisance for which the act or penalty is not otherwise prescribed by law is guilty of a petty misdemeanor.”

(30-8-1, NMSA 1978, Public Nuisance defined).

The New Mexico legislature has also empowered municipalities very broad authority to define a nuisance, abate the nuisance and impose penalties and initiate civil causes of action.

State statute provides that “A municipality may by ordinance … define a nuisance, abate a nuisance and impose penalties upon a person who creates or allows a nuisance to exist. …”

(3-18-17 Nuisances and Offenses; Regulation or prohibition)

State statute also grants municipalities with broad powers and provides that:

“A municipality may:
A. sue or be sued; ….
F. protect generally the property of its municipality and it inhabitants;
G. preserve peace and order within the municipality; …”

(3-18-1 General Powers (of Municipality)”

Note that the creating, performing or maintaining a public nuisance is a crime under state law, which would be prosecuted in a magistrate court or metropolitan court.

Under New Mexico law, a petty misdemeanor is the very least serious crime for which a person can be sentenced to time in jail.

The sentence for a petty misdemeanor in New Mexico can never be more than six months in jail or a fine up to $500, is usually up to 30 days in jail and a $100 fine or both, depending on the offense and the penalties can also be suspended by the court.

Notwithstanding being a criminal charge, actions to abate a nuisance are civil actions that must be filed in state district court.

New Mexico statutory law provides that any action for the abatement of a public nuisance shall be governed by the general rules of Civil Procedure.

(30-8-8, NMSA 1978 Abatement of a public nuisance.)

Under New Mexico law, “a civil action to abate a public nuisance may be brought, by verified complaint by any public officer or private citizen, in state district court of the county where the public nuisance exists, against any person, corporation or association of persons who shall create, perform or maintain a public nuisance.”

(30-8-8, B, NMSA 1978, Abatement of a public nuisance, emphasis added)

When a plaintiff prevails and proves that a nuisance exists and a judgment is given against a defendant in an action to abate a public nuisance, the district court can order the defendant responsible for the nuisance to pay all court costs and attorney fees for the plaintiff’s attorney.

(30-8-8, C, NMSA 1978, Abatement of a public nuisance, emphasis added)

The huge significance is that both public officials as well as private citizens can bring an action for nuisance abatement.

Another major distinction is the burden of proof between a criminal charge and a civil cause of action.

A criminal charge requires the state to prove a defendant is guilty “beyond a reasonable doubt”.

A civil case requires proof by “preponderance of the evidence” by a plaintiff.

In general, with few exceptions, only law enforcement or state prosecutors can bring petty misdemeanor charges for public nuisance.

However, any private citizen or public official, such as a District Attorney or City Attorney, or any lay person with money for the court filing fee, can initiate a civil nuisance abatement action for injunctive relief and if they prevail can be awarded attorney’s fees and costs.

NEW MEXICO CASE LAW ON DEFINING A NUISANCE

The New Mexico Supreme Court and the Court of Appeals has issued opinions and rulings on what constitutes a nuisance.

Under New Mexico court case law nuisances are classified as nuisances per se and nuisances in fact.

“A nuisance per se is generally defined as an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings … [A] nuisance in fact is commonly defined as an act, occupation, or structure not a nuisance per se, but one which may become a nuisance by reason of circumstances, location, or surroundings.” (Koeber v. Apex-Albug Phoenix Express, 72 N.M. 4; 380 P.2d 14; 1963, New Mexico Supreme Court).

Further, it is well settled that a court may enjoin a threatened or anticipated nuisance, public or private, where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is sought to enjoin. (Koeber v. Apex-Albug Phoenix Express, 72 N.M. 4; 380 P.2d 14; 1963, New Mexico Supreme Court).

A public nuisance must affect a considerable number of people or an entire community or neighborhood. (Environmental Improvement Div. v. Bloomfield Irrigation Dist., 108 N.M. 691, 778 P2d 438, New Mexico Court of Appeals 1989).

A common law “public nuisance” which is similar to the public nuisance statute, is the unreasonable interference with the right common to the general public, belonging to all members of the general public. It is not necessary that the entire community be affected by a public nuisance. If the nuisance will interfere with those coming in contact with the exercise of a public right or if the nuisance otherwise affects interests of the community at large. (State, ex rel, Village of Los Ranchos de Albuquerque v. City of Albuquerque, 889 P.2d 185, 119 NM 150.)

A public nuisance is a wrong that arises by virtue of unreasonable interference with the rights common to the general public. The Public nuisance statute applies to anything affecting “any number of citizens” meaning a considerable number of people or an entire community or neighborhood. (NMSA 1978, 30-8-1 and State, ex rel, Village of Los Ranchos de Albuquerque v. City of Albuquerque, 889 P.2d 185, 119 NM 150.

Public nuisance is one which adversely affects public health, welfare, or safety. A public nuisance affects the rights of citizens as part of the public and must affect a considerable number of people or an entire community or neighborhood. A continuing nuisance is one which occurs so often that it can fairly be said to be continuing although it is not constant and unceasing. (Padilla v. Lawrence, 101 NM 556, cert. denied 683 P.2d 1341, 101 NM 419.

The fact that acts constituting a public nuisance are punishable criminally does not deprive a court of its power to enjoin a public nuisance where there is ample proof of irreparable injury to public health, welfare, or safety. (Town of Clayton v. Mayfield. 82 NM 596, (involved operation of a junk yard that was unfenced and contained old cars). See also, State, ex rel, Marron v. Compere, 103 P.2d 273, 44 NM 414.

CITY’S DWI VEHICLE FOREFEITURE ORDINANCE

In 1993, the Albuquerque City Council exercised its authority granted to it by the New Mexico legislature to define and abate a nuisance and impose penalties to abate a nuisance by declaring any motor vehicle to be a nuisance and subject to immediate seizure and forfeiture when an arrest is made for driving while intoxicated (DWI).

(Article 6: Motor Vehicle Seizure; Forfeiture, section 7-6-1 City of Albuquerque Ordinances, 1992)

The forfeiture of an asset by court order is a penalty when dealing with the abatement of a nuisance that is affecting public health, safety and welfare.

The city specifically defines vehicles used by arrested drunk drivers with prior convictions a nuisance endangering public health, safety and welfare and interfering with the public’s right to public rights of way.

(Article 6: Motor Vehicle Seizure; Forfeiture, section 7-6-1 City of Albuquerque Ordinances, 1992)

Penalties to abate a nuisance would include the authority to exercise civil forfeiture authority with court orders to eliminate the nuisance.

Under the city ordinance, a vehicle is subject to immediate seizure and forfeiture by the city if the vehicle is operated by a person in the commission of a DWI offense and has, on at least one prior occasion, been arrested or convicted of a previous DWI, or has a suspended or revoked driver’s license for DWI.

CITY ATTORNEY VEHICLE FORFEITURE DIVISION

The city’s DWI Vehicle Forfeiture Program is administered and managed by the City Attorney’s Office and at one time was a part of the Safe City Strike Force.

Assistant City Attorneys and paralegals are assigned to initiate administrative actions, court action and enter into settlements agreements and boot vehicles.

The amount of projected proceeds from vehicle forfeiture auctions is projected to drop dramatically from $760,000 to $300,000 over three years.

The biggest complaint made against the program is that it deprives people of their property without due process of law.

The biggest benefit of the program is that it takes the very object used to commit a crime out of the hands of people who intentionally violate the law and who at times seriously injure or even kill people.

A drunk driver behind the wheel of a car is clearly a threat to the public health, safety and welfare.

A drunk driver behind the wheel of a car interferes with the general public’s right to use public city streets free from any threat of great bodily harm or lethal bodily injury caused by a drunk driver.

ALBUQUERQUE CITY ORDINANCES DEFINING NUISANCE

In 1994, exercising the authority granted to it by the state, the City of Albuquerque enacted its nuisance abatement ordinance and then amended it 2006 to add offenses under the state criminal code and city housing and construction codes.

The city’s nuisance abatement ordinance defines nuisance as:

“Any parcel of real property, commercial or residential, … on which
any of the following illegal activities occurs, or which is used to commit
conduct, promote, facilitate, or aide the commission of … any of
the following activities: …

At this point, the ordinance lists crimes in the state’s criminal code as well as the city’s building and construction codes.

(City of Albuquerque Nuisance Abatement Ordinance, Section 11-1-1-1, Section 11-1-1-3 of ordinance defining “Public Nuisance”)

The city’s nuisance abatement ordinance prohibits “public nuisances” as follows:

“It shall be unlawful for any owner, manager, tenant, lessee, occupant, or other person having any legal or equitable interest or right of possession in real property …or other personal property to intentionally, knowingly, recklessly, or negligently commit, conduct , promote, facilitate, permit, fail to prevent, or otherwise let happen, any public nuisance in, on or using any property in which they hold any legal or equitable interest or right of possession.”

(11-1-1-10 PUBLIC NUISANCES PROHIBITED, City of Albuquerque.)

The City of Albuquerque’s Uniform Housing Code also defines “nuisance” as:

“(1) Any nuisance known at common law …
(2) Any attractive nuisance which may prove detrimental to children whether in a building, on the premises of a building, or upon an unoccupied lot. This includes any abandoned wells, shafts, basements or excavations; abandoned refrigerators; or any structurally unsound fences or structures; or any lumber, trash, fences or debris which may prove a hazard for inquisitive minors.
(3) Whatever is dangerous to human life or is detrimental to health, as determined by the health officer.
(4) Overcrowding a room with occupants.
(5) Insufficient ventilation or illumination.
(6) Inadequate or unsanitary sewage or plumbing facilities
(7) Any violation of the housing standards set forth in this code.”

(14-3-1-4 ROA 1994 of Housing Code, Definitions)

SAFE CITY STRIKE FORCE

In 2002, the Safe City Strike Force was created by an executive order of the Mayor and a Memorandum of Understanding was executed between various city departments.

The Safe City Strike Force was formed to combat blighted commercial and residential properties.

Originally, thirty to forty-five representatives from the Albuquerque Police Department, the Albuquerque Fire Department, the Fire Marshal’s Office, the Planning Department Code residential and commercial code inspectors, Family Community Services and the Bernalillo County District Attorney’s Office participated comprised the strike force.

From 2002 to 2010, the Safe City Strike Force was a division of the City Attorney’s Office with an attorney in charge as Director.

For the first 8 years of its existence, seventy to one hundred fifty properties a week, both residential and commercial properties would be reviewed by the Strike Force.

The Safe City Strike Force would handle referrals from the general public, neighborhood associations, the Mayor and the Albuquerque City Council.

The Albuquerque City Council would be given weekly updates on the progress made in their districts on the nuisance properties found.

The Safe City Strike Force routinely prepared condemnation resolutions for enactment by the Albuquerque City Council to tear down substandard buildings.

From 2002 to 2010 civil enforcement action against some 6,500 properties, both commercial and residential were taken by the Safe City Strike Force.

Actions taken by the Strike Force included actions against central motels, violent bars, flea markets, convenience stores and slumlord properties.

The Safe City Strike Force took civil action against substandard properties that had become magnets for crime.

A magnet for crime property is one that has an extensive history of calls for service to the Albuquerque Police Department and where crime occurs.

The Strike Force took actions against residential and commercial properties that were used for prostitution and drug activity such as meth labs and crack houses.

A review of the total number of calls for service a year is what is used in part to determine if a property is a public nuisance or a nuisance under city ordinances.

Calls for service to the Albuquerque Police Department to deal with properties that have become “magnets for crime” result in a drain on police resources and costs millions of dollars a year in taxpayer funds.

Currently there are estimated to be between 3,000 to 4,000 vacant, substandard buildings, both residential and commercial, within the Albuquerque area.

From 2010 to the present, the Safe City Strike Force has been a division of the Planning Department and has only 3 employees, the Director and 2 code inspectors.

Beginning in 2018, the Safe City Strike Force has 3 employees, its director and 2 inspectors, and the Safe City Strike Force exists in name only.

Review of the Keller Administration 2018-2019 proposed budget, a $3.9 million appropriation is being made as commitment to reinstate the Safe City Strike Force.

Further, $102,000 is being proposed for board ups of blighted properties, but significantly more will be needed to address the approximate 3,000 substandard properties throughout Albuquerque.

Eight years ago, the Safe City Strike had $1 million in funding for board ups, tear downs and condemnations.

CONCLUSION

The City of Albuquerque and the State of New Mexico have some of the strongest nuisance abatement laws in the county.

Crime rates can be brought down with civil nuisance abatement actions that protect the public health, safety and welfare of the public.

Both the city and the state need to ensure that sufficient resources are dedicated to enforce existing nuisance abatement laws.

The Albuquerque Police Department (APD) has released the city’s crime statistics for the first quarter of 2018 (January to March) comparing them to the first quarter of 2017, (January to March).

Looking at the numbers, property crime is down, but it’s the homicide rate that continues to be alarming.

Here’s a look at the crime stats for the first quarter of 2018 compared to the same period last year:

Traffic Stops

2017: 7,940
2018: 13,586
Change: +71%

Auto Burglary

2017: 3,256
2018: 2,234
Change: -31%

Auto Theft

2017: 1,904
2018: 1,668
Change: -12 percent

Commercial Burglary

2017: 56
2018: 477
Change: -6%

Residential Burglary

2017: 1,102
2018: 1,022
Change: -7%

Robbery

2017: 722
2018: 393
Change: -46%

Aggravated Assault:

2017: 926
2018: 840
Change: -9%

Non Fatal Shootings:

2017:27
2018: 27
Change: 0%

Rape:

2017: 111
2018: 96
Change: -12%

Homicides:

2017: 12
2018: 18
Change: +50%

MURDER RATE IS ALARMING

There were 6 more murders in the first quarter of 2018 compared with 2017 which is a 50% increase.

Property crimes by far are more common than murders.

The fact is, murders do not drive property crime trends, but it is the other way around.

A murder is usually committed when another crime is being committed such as armed robbery or domestic violence or it’s a crime committed in the heat of anger and a gun is readily available.

It’s difficult at best to bring down homicide rates, but it can be done when you bring down other violent crime such as armed robbery, aggravated assaults, illicit drug offenses and domestic violence.

In March of this year, 5 homicides were reported in six days!

Albuquerque has had twenty (21) homicides reported in 4 months thus far and counting! Albuquerque had 12 murders in the first quarter last year.

In 2017, violent crime rose by 18% over the previous year.

Since 2012, violent crime has dramatically increased in Albuquerque by 77%. The 77% increase in violent crime in 2017 was still significantly less than “nonfatal shootings” which increased by a whopping 148%.

According to APD statistics released for 2017, homicides increased by 23%, robberies increase by 43%, rapes increased by 21% and aggravated assaults increased 4.2%.

The dramatic increase in crime in 2017 followed a 15.5 percent increase in violent crime in 2016.

CONCLUSION

The good news is that Albuquerque’s property crime rates for the first time in a number of years are declining.

The bad news is that our violent crime rates are still way too high.

In other words, your property may be safe, but you may want to carry a gun.

QWorks stands for “how Albuquerque works” as in how our city government works and what is going on around the city and its neighborhoods.

On Sunday, April 22, 2018, Qworks will have its official launch party at the Kosmos Restaurant , 1715 5th street, NW, Albuquerque, New Mexico, 87102, from 6:00 pm to 8:00 pm.

I encourage readers to click on the link below and view the video published on FACEBOOK that explains what QWorks is all about, who is behind it and what it wants to do.

www.facebook.com/qworks.abq/videos/1851712481792464/

A few weeks ago, I attended a focus group meeting for QWorks.

The QWorks group was originally organized to elect Gus Pedrotty Mayor of Albuquerque, but after the election, the group met and wanted to continue to advocate and make a contribution to Albuquerque.

The organizers of QWorks are all in their twenties with each having a deep commitment to making Albuquerque a better place to live, work and raise a family.

The group includes Gus Pedrotty, A. J. Hedrich, Joshua Romero, Sara Collins, Alexa Ogunsanya, Timothy Carlton McQueen, Brendon Gray and Gabe Gallegos and at least twelve other highly motivated millennials.

In a real sense, each one of these young adults reflect Albuquerque’s future.

Each and every one of these “millennials” bring different talents and experiences to the group, including writing skills, video production skills, marketing skills and the understanding how social media works.

All of them bring to the table energy, sense of love and commitment to Albuquerque and ideas on the city’s real potential.

According to QWorks organizers “[QWorks] comes out of a reflection on how communities organize, what motivates engagement, and how to create more passive opportunities to inspire action, all while increasing the level of knowledge on civic engagement, how the city works across our city’s electorate”.

Gus Pedrotty says “Over the last four months, we’ve worked on building a team and structure that requires itself to be inclusive, distributed, and growing. It’s all too long for a post — the ideas behind this, the trial and error, the opportunity for growth, and what we’ll need along the way — so please come to [our launch party] on Sunday, 4/22, at The Kosmos Restaurant from 6-8PM to meet us, engage with us, and join us on this next adventure!”

The immediate goal of QWorks is to start by producing 30 to 60 second social network media messages to inform the public how city government programs work and what is going on in Albuquerque socially, culturally and politically.

Pod casts are also being contemplated by the group.

QWorks has already produced 60 second preliminary public information messages that are slick and impressive.

Many would call them “public service” announcements, but the videos are far from that and are entertaining and very informative.

All the work on QWorks so far has been strictly voluntary by the group members.

QWorks wants to eventually become a “nonprofit” corporation.

CONCLUSION

I have found that my generation (over 60) has a real bad habit of underestimating the talents, abilities and wisdom of millennials that QWorks represents, and we do so at our own peril and loss.

QWorks has the real potential of being a refreshing voice advocating solutions to our cities problems.

This is one group of millennials that need to be encourage and helped by all.

If you are interested in Albuquerque’s future generation who in no time be responsible for solving many of our problems, I encourage you to attend the April 22, 2018 Launch Party for Qworks to be held at the Kosmos Restaurant, 1715 5th street, NW, Albuquerque, New Mexico, 87102 from 6:00 pm to 8:00 pm.

You can reach QWorks at their email: qworks.abq@gmail.com

And please remember, QWorks is how Albuquerque works!