Juris Doctorate Don Harris Thinks He Can Practice Medicine With His Law Degree

On Thursday, March 26, political blogger Joe Monahan on his blog “New Mexico Politics With Joe Monahan” broke a story entitled in part “Dangerous Don”? ABQ Councilor Stirs Pot With Controversial Coronavirus Comments; Guv’s Office Pushes Back”. Following are the relevant portions of the article with the link to Mr. Monahan’s blog:

“ABQ GOP City Councilor Don Harris is getting pushback after controversial comments on the coronavirus in New Mexico–comments the Governor’s office calls “dangerous.”

Harris has become one of the first elected officials to publicly question the Governor’s stay at home order to combat the coronavirus. Several hours after the first reported NM death from the virus was reported Wednesday, Harris told us:

I am sensing that the Governor is going lockstep with places that have much different problems than we do, particularly New York. Testing there shows a very high infection rate, while in New Mexico it is two percent. You can’t treat the country as a unified entity when New Mexico is a sparsely populated state and has a a different climate than New York.

The longtime councilor, first elected in 2005 from District 9 in the far NE Heights, also brought up the hot button issue of possible increased suicides among the millions of workers laid off because of the shuttering of much of the economy. President Trump brought up the same issue but the AP came with a fact check that disputes that notion.

Harris, an attorney in private practice, urged an “open discussion” about the stay at home order, saying his chief concern is that it could be extended beyond the scheduled April 10 expiration, causing extensive economic harm.

Hopefully we will have some good data by April 10 and be very cautious about extending it and with regard to whom and how long. We should talk about the young people resuming normal life and keep those people away from the elderly. I think we need to have an open discussion about the harm that the economic lock down is doing to people.

Harris wrote on Facebook that his speaking out was prompted by the state’s use of the emergency alert system Wednesday to urge all New Mexicans to stay home:

I received an emergency text from the Governor or her agency ordering me to stay home. At the time I was walking in the foothills. . . . Albuquerque ranks number one in the nation in per capita for land devoted to open space and we are the fifth least-densely populated state in the country with 17 people per square mile on average. We have a high-desert climate with lots of sun and virus killing UV radiation. We are not New York City.

Harris also questions ABQ Mayor Keller’s order closing city golf courses:

People can stay six feet away from each other. Why not let people go out and golf?

Harris is up for re-election in 2021 but he tells us he is “uncertain” about seeking another term.

DOWNRIGHT DANGEROUS

Gov. MLG

Governor’s office spokeswoman Nora Myers Sackett came with this response to the Harris comments:

“Councilor Harris’ misinformed comments are not only misdirected, they are downright dangerous.

The only way to prevent a spike in the infection rate is with measures exactly like what Governor Lujan Grisham is doing; a statewide stay-at-home instruction, closing of non-essential businesses. That is the only way to flatten the curve and not overwhelm the state’s health care facilities, at which point the public health emergency will be disastrous.

If is critically dangerous for the Councilor to imply that only the elderly are affected by COVID-19. That is categorically false. The majority of New Mexico’s cases are under the age of 50. Like most viral infections, high-risk individuals are more at risk, but every New Mexican is at risk of contracting COVID-19. That is why it is essential that all New Mexicans stay home. Period. It is the only way to slow the spread of COVID-19.

New Mexico’s sunshine will not eradicate COVID-19. I am dismayed that an elected official would suggest something so dangerous. The governor understands the terrible situation that this public health emergency puts our economy in – but the alternative, should the spread of COVID-19 not be stopped, is even greater economic and public health devastation.

The only way to slow the spread of COVID-19 is for New Mexicans to stay home and not interact with each other. Not just older New Mexicans, all New Mexicans. Any New Mexican is susceptible to this virus. Want proof? A baby under one was recently announced as having tested positive for COVID-19, with no known exposure to anyone else who had tested positive. This is not a virus of the elderly, and if New Mexicans, including Councilor Harris, do not take this seriously, we will feel the repercussions for months to come.”

The link to “New Mexico Politics With Joe Monahan” is here:

http://joemonahansnewmexico.blogspot.com/

E-mail your news and comments to: jmonahan@ix.netcom.com

COMMENTARY AND ANALYSIS

Don Harris is a 4 term Republican City Councilor who represents District 9, the far Southeast Heights and Foothills area of the city, including the 4-Hills Country Club area. He was first elected to the City Council in 2005. He is in the private practice of law, but was employed for a few years as an Albuquerque Assistant City Attorney before going into the private practice of law and then running for City Council.

To use Don Harris’ comments, the only “open discussion” we need to have is the discussion as to why his constituents keep electing this do nothing to the city council. Don Harris has a very well deserve reputation for doing very little, and some would say absolutely nothing, on the City Council and just draws his city council salary without doing any work. He is one of those City Councilors who once he leaves, no one will ever know he ever served, which is the classic definition of a “do nothing” elected official.

15 YEAR RECORD OF DO NOTHING DANDY DON HARRIS

Some of the very few highlights of the voting record of Don Harris include:

Don Harris voted repeatedly for and supported Republican Mayor Berry’s ART Bus project and funding. Harris refused to advocate to put ART on the ballot for public approval. Harris voted to spend federal grant money that had yet to be appropriated by congress. The ART Bus project has been a total disaster resulting the destruction of the character of Route 66 and having a negative impact and resulting in several businesses going out of business. Harris failed to attend any of the federal court hearings on the case where Central Businesses were trying to obtain an injunction to stop ART and he failed to attend any of the Berry Administration public meetings on the project to solicit input from citizens.

The Albuquerque City Council plays a crucial oversight role of the Albuquerque Police Department (APD) including controlling its budget. Harris was on the City Council when the Department of Justice found a culture of aggression within APD that resulted in the Court Approved Settlement Agreement (CASA). Don Harris did absolutely nothing when it comes to the APD reforms and never challenged the APD command staff in any meaningful way demanding compliance with the Department of Justice (DOJ) consent decree reforms. Each of the 10 times the Federal Monitor presented his critical reports of APD to the City Council, Harris was nowhere to be found and was silent and has declined to demand accountability from Republican Mayor Berry. Harris failed to hold the APD command staff responsible for dragging their feet on the reforms. Harris failed to attend any of the federal court hearings on the consent decree.

Harris voted for over $63 million dollars in revenue bonds to build pickle ball courts, baseball fields and the ART bus project down Central not seeking public input and bypassing the capital improvements process (CIP) that mandates hearings and public votes. The use of revenue bonds is discretionary with the City Council requiring seven (7) votes and revenue bonds do not require significant review and public hearings as is required with capital improvement bonds.

Republican Don Harris partnered with Democrat Pat Davis to write and sponsor a city ordinance to address blighted, abandoned or substandard commercial properties requiring property owners to make repairs. At the time, Harris a former Assistant City Attorney, already knew that a number of city ordinances and building codes were already on the books that were not being enforced to address substandard properties including one of the strongest nuisance abatement ordinances in the country. Rather than trying to re-invent the wheel for publicity sake, Harris and the City Council failed to fully fund the Safe City Strike Force, which Harris served on as an Assistant City Attorney, and refused to utilize condemnation actions to address blighted commercial properties that were irreparable and that had become magnets for crime.

Harris voted for the final adoption of the ABC-Z comprehensive plan which will have long term impact on our neighborhoods and favors developers. The enactment of the comprehensive plan was a major priority of Republican Mayor Berry and the development community pushed hard for its enactment before Berry left office. The ABC-Z project rewrite is nothing more than making “gentrification” an official city policy and the “gutting” of long standing sector development plans by the development community to repeal those sector development plans designed to protect neighborhoods and their character.

Don Harris lists on his City Council web page as a major accomplishment a constituent survey he had done on the Tiny Homes Village, which is a joint City and County project. Harris represents portions of the Southeast Heights, including the Four Hills area, where sites had been identified for the Tiny Homes project. In response to the survey results, City Councilor Don Harris sponsored a moratorium on the construction of any tiny home villages in the city until an independent and comprehensive analysis was completed on “the best way to deliver services to the homeless that will generate measurable results.” Don Harris opposing the Tiny Homes project and calling for a moratorium on the project was so damn laughable. He conducted the survey to placate his constituents only after totally ignoring them and ignoring what had been going on in his district for well over a year. Harris failed to attend a single public forum held on the project, ignored his constituents and even refused to meet with a number of them on the issue.

Most recently, on Monday, March 16, the Albuquerque City Council convened an emergency session and enacted changes to the city’s “Emergency Powers Ordinance” . The 1960’ Emergency Powers Ordinance is clearly unconstitutional on many levels that even a first-year law student would understand. The emergency city council meeting was a clear violation of the New Mexico Open Meetings Act by barring the general public. It is embarrassing and damn pathetic that Republican City Councilor Don Harris, who is a licensed New Mexico Attorney, did not question the constitutionality of the original ordinance nor the propriety of excluding the public from the meeting in violation of the law.

CONCLUSION

With the comments made by Republican Don Harris regarding the Governor’s stay at home orders, it’s obvious he is in lock step with the philosophy of President Trump, despite the fact that the stay at home order is likely to have a major benefit of protecting a large number of his constituent’s. City Council District 9 that Harris represents has a large percentage of people in the high-risk group ages over 60 and a number of retirees.

Don Harris needs to be told that the Juris Doctorate Degree he holds to practice law does not mean he can give free medical advice to avoid a pandemic.

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POSTSCRIPT

Below is an email received on March 26 from one of City Councillor Don Harris’ many constituents:

“Bravo …! For identifying a few of the inane, but more often illegal, comments and actions coming from Do-Nothing, Dandy Don Harris. Having been subjected here in Dist. 9 to his “throw Four Hills under the bus” retaliatory tactics as a result of those trying to recall him, we are left in the wake of his squalor with

a) a second community center built on a historic archaeological piece of land donated to the city for preservation as a park (Singing Arrow Park),

b) leaving the original SA Park in blight with no plans for demolition or remodeling although Go-Bonds were approved for such),

c) sponsoring a bill that was adopted that allows Councilors to “re-purpose” bond money–although clearly illegal,

d) failing as a lawyer to recognize and dispel illegal acts of City Council when other Councilors request a clarification…ie. When City Councilors ask: “Are we doing something illegal?” He just sits there, talking on the phone, maybe consulting his tarot-card adviser,…

e) leaving the public in harm’s way with a 10-year abandoned shopping center called “Franklin Plaza” where a serial rapist (now convicted) operated freely;

f) turning all the motels into homeless camps through city issued motel vouchers

g) approving the order to have APD stand down on crime in the motels on E. Central,

h) failing to propose a city ordinance he promised APD that would require ID when renting a motel room, regardless if homeless or not,

i) Failing to use a single dollar of MRA funds to revitalize his district…..The list goes on, but I’m tired of typing.It’s time to wake up and look at all the petals that have dropped off Don Harris’ rose.

The flower is dead and only the barbed stem remains.”

Unconstitutional 1960’s “Public Health Emergency Ordinance” Should Have Been Repealed; Power Grab By City Council; Intentional Violation Of Open Meeting Act Demands Another Vote

It was on March 11, Governor Michelle Lujan Grisham became the first New Mexico Governor to invoke the 2003 Public Health Emergency Response Act (PHERA), issuing an Executive Order declaring a “public health emergency” giving her administration broad powers to deal with the coronavirus.

On March 16, as if not to be outdone by the Governor, the Albuquerque City Council voted 6 to 3 in favor of amending the city’s “Emergency Powers Ordinance” to help prevent further spread of COVID-19. The updated bill expands the mayor’s power to respond to the pandemic outbreak. City Councilors Isaac Benton, Diane Gibson, Cynthia Borrego, Klarissa Peña and Lan Sena voted Yes to pass the legislation while City Councilors Brook Bassan, Don Harris and Trudy Jones voted NO.

Passed in the 1960s, the Civil Emergency Powers ordinance was initially enacted to address potential widespread rioting and limits emergency powers to situations like riots and natural disasters. At the time, the country was experiencing extensive civil disobedience disorder as a result of the Viet Nam War and protests. The original bill includes many provisions that would be unenforceable or unconstitutional, such as closing down gun stores and gas rationing which are within the actual previews of the state or federal government.

At the March 16 City Council meeting, Albuquerque City Councilor Pat Davis offered a “floor substitute” of the “Emergency Powers Ordinance” containing original provisions of the ordinance, repealing some language of the ordinance and providing for significant amendments to the ordinance. The amendments essentially update the existing ordinance adding a public health provision to the provisions governing disasters like earthquakes and riots. The rules governing disasters like earthquakes and riots do not apply to situations such as the corona virus pandemic.

UPDATED “EMERGENCY POWERS ORDINANCE”

The new ordinance broadens the mayor’s “emergency powers”. Under the updated ordinance, the mayor can invoke specific powers like reallocating city resources to combat the epidemic and ordering the closure of streets, day cares and places of “mass assembly” like theaters and sports venues. The mayor could also require retailers to set limits on how many “medical, health and sanitation” products they sell to one person per day.

Under the changes to the “Emergency Powers Ordinance” the Mayor can declare a public health emergency for up to 7 days. While the mayor can issue the proclamation, the City Council is given the authority to amend, cancel or extend the order. The city council is also given authority to reverse any decision declared by the mayor. The powers granted to the mayor would only last for 30 days, but could be lengthened or shortened by the city council.

Under the updated ordinance, the Mayor now has the authority to close streets, limit the quantities of certain items sold at stores and close places where big gatherings happen such as places of worship. It also gives the Mayor power to close city facilities, relocate city staff and divert funding around to deal with a crisis. However, the ordinance does not let a Mayor seize private property or put individuals in quarantine. The emergency power would join others the mayor has like declaring a civil emergency if there is a riot or a natural disaster.

You can find the entire floor substitute containing all older provision and updated provisions here:

http://www.cabq.gov/council/documents/2020-o-4-proposed-fs-davis.pdf

MAYOR TIM KELLER DECLARES EMERGENCY

On Wednesday, March 18, less than 48 hours after the Albuquerque City Council passed the amended “Emergency Powers Ordinance”, Mayor Tim Keller declared a Public Health Emergency to deal with the corona virus in the city. The Mayor announced and signed the emergency declaration even before the ink was dried on the enacted legislation and the city clerk’s signature on the transmittal notice of enactment.

Mayor Keller went out of his way to back up the declaration with a press release that that the new legislation would not allow him to confiscate guns or halt alcohol sales. The new legislation does not allow it either. The need to address the gun and alcohol issues was the result of severe criticism and false information spread about both issues on social media. Keller was forced to explain the primary purpose for the declaration was to give him more flexibility in freeing up financial resources to address the coronavirus threat.

The Mayor’s emergency declaration ends by making two specific requests for financial assistance from the New Mexico Department of Homeland Security and Emergency Management and state agencies and the Federal Emergency Management Agency. The entire written Emergency Declaration can be read here:

http://www.cabq.gov/mayor/documents/emergecy-declaration.pdf

PAT DAVIS OFFERS DILUTED EXPLANATION OF SUBSTITUTE BILL

According to a city website analysis offered by City Councilor Pat Davis, what the ordinance does is as follows:

• Creates a new section of emergency law allowing the Mayor to declare an emergency in the case or actual or imminent outbreak of infectious disease
• Allow the Mayor to declare that emergency for up to 30 days, subject to amendment, extension or cancellation by the City Council
• Limit the kinds and quantities of items retailers may sell per customer per day
• Encourage private employers to take measures to limit exposures in their locations
• Order the closing of place of mass assembly, including sporting events, theatres clubs, etc.
• Order the closing of public and private educational and childcare institutions
• Cancel city-sponsored events
• Reallocate city staff and appropriations, as necessary, to address and respond to the threat
• Requires the Mayor to immediately share any order issued under this provision online, with the media and with the City Council

According to the same city website analysis offered by Councilor Davis, what the ordinance does not do is as follows:

• Does not address or change decades-old civil emergency laws, granting temporary (48-hour) authority to protect public safety in times of riot or natural disaster.
• Allow the city to quarantine any individual or seize any personal or private property
• Does not allow the prohibition of sales of any item during a public health

http://www.cabq.gov/council/find-your-councilor/district-6/news/city-council-to-consider-revised-public-health-emergency-law-on-mondayemergency

You can find the entire floor substitute containing all older provision and updated provisions here:

http://www.cabq.gov/council/documents/2020-o-4-proposed-fs-davis.pdf

Councilor Pat Davis offered his own analysis of his substitute bill on the city website as follows:

“As we see too often today, social media posts can quickly spread misinformation. Unfortunately, we’ve seen those distract from the important work we need to do. These new provisions have nothing to do with gun ownership, or martial law. They simply allow the city to move staff and dollars to manage our response and impose common sense social distancing measures to prevent a crisis. Nothing more.”

COUNCIL VIOLATES NEW MEXICO OPEN MEETINGS ACT

On Monday, March 16, in an extraordinary first for the Albuquerque City Council, the general public was not allowed to sit in the public audience area of the council chambers. The City Council Chamber doors were closed to the public, audience seats were vacant, all as a precaution to stop the spread of the coronavirus. Only members of the media, city councilors and some city workers were allowed inside during the meeting. Outside of the council chambers, APD Police were stationed to keep people out or checking people’s credentials who were trying to get in. The city council meeting was broadcast on GOV TV and the public could watch the meeting online, but could not make comment. For those who wanted to participate in public comment, they could have emailed, faxed or hand delivered their comments to the councilors before the meeting.

The actions of City Council President Pat Davis, who presided over the meeting and not knowing the council was in violation of the open meeting act, can be fully explained by his well earned reputation for knee jerk reactions based upon news events, his arrogance, and ill-advised actions of not knowing what he is doing.

On Tuesday, March 17, the very day after the City Council meeting, Attorney General Hector Balderas issued “Guidance to Public Entities Regarding Open Meetings Act and Inspection of Public Records Act Compliance During COVID-19 State of Emergency”. It is more likely than not that the Attorney General found out about the City’s Council’s illegal actions after news accounts. The guidelines give specific steps to be followed by public entities to comply with the Open Meetings Act. You can read the Attorney General’s guidelines in the postscript to this blog article.

AMERICAN CIVIL LIBERTIES UNION RAISES OVERREACH CONCERNS

On March 17, the local chapter of the American Civil Liberties Union issued a statement and said Albuquerque’s newly approved emergency powers ordinance may be an “overreach.” In a statement issued by Peter Simonson, executive director of the ACLU of New Mexico, the ACLU said the ordinance passed by the city council is too vague, particularly in defining a “public health emergency” and a “reasonable threat,” which the organization said could allow the mayor to invoke “sweeping powers to shut down businesses and ban people from public spaces in response, for example, to a common flu outbreak.”

SERIOUSLY FLAWED 1960’s CITY CIVIL EMERGENCY POWERS ACT

The 1960’ s Civil Emergency Powers ordinance enacted by the City Commission, which was initially passed to address potential widespread rioting, “unlawful assembly “ and natural disaster such as “flood, conflagration, cyclone, tornado, earthquake” contains the following provisions:

Ҥ 2-9-1-3 EMERGENCY POWERS.

Whenever the Mayor shall, after consultation with the Chief of Police find that a civil emergency exists as defined herein and that invocation of the extraordinary powers conferred herein is necessary to ensure or to restore the public peace, he shall forthwith proclaim in writing the existence of such emergency. Upon such determination the Mayor is hereby empowered to invoke any or all of the following provisions:

(A) To declare hours of curfew upon all or any portion of the city thereby requiring all persons in such designated curfew areas to forthwith remove themselves from the public streets, alleys, parks or other public or semi-public places. The curfew shall be declared by proclamation which shall be delivered to the Chief of Police, who shall see that copies thereof are delivered to all news media within the city and who shall also use public address systems to notify the public of said proclamation and curfew hours and warn the public that violation of said curfew constitutes a misdemeanor and violators are subject to arrest.

(B) To close any and all streets, alleys and other public ways in the city to the public whenever it is necessary for the preservation of life and property and the maintenance of law and order.

(C) Order the closing of all retail package liquor stores and outlets.

(D) Order the closing of all bars and other establishments selling intoxicating liquor or beer by the drink.

(E) Order the discontinuance of selling, distributing or giving away gasoline or other liquid flammable or combustible products in any container other than a gasoline tank properly affixed to a motor vehicle said sale to be limited to not more than one gallon per motor vehicle, or in the alternative, order the closing of gasoline stations and other establishments, the chief activity of which is the sale, distribution or dispensing of liquid flammable or combustible products.

(F) Order the discontinuance of selling, distributing, dispensing or giving away of any firearms or ammunition of any character whatsoever, or in the alternative, order the closing of all establishments or portions thereof where arms and/or ammunition are kept for sale or distribution.

(G) Issue such other orders as are imminently necessary for the 2 protection of life and property [throughout the duration of the emergency, 3 including any provisions above that have not been previously invoked.”

https://www.cabq.gov/council/documents/o-20-4-city-emergency-proposed-legislation.pdf

2020 “EMERGENCY POWERS ORDINANCE” UPDATE

The major provisions contained in the substitute that were adopted in an effort to update the ordinance are as follows:

Ҥ 2-9-1-4 MAYORAL PROCLAMATION OF PUBLIC HEALTH EMERGENCY; EMERGENCY ORDERS

Whenever the Mayor shall, after consultation with the Director of the City Office of Emergency Management, find that a public health emergency exists as defined herein and that invocation of the extraordinary powers conferred herein is necessary to help preserve and maintain the health, safety, and welfare of the general public, he shall forthwith proclaim in writing the existence of such emergency.

Upon such determination the Mayor is hereby 12 empowered to invoke any or all of the following provisions:

(A) To close any and all streets, alleys and other public ways in the city to the public whenever it is necessary for the preservation of life and public health and safety.

(B) Order retailers to limit the kinds and quantities of items that a business may sell per customer per day.

(C) Order the closing of places of mass assembly, including but not 19 limited to theaters, clubs, places of worship, live or telecast performances 20 intended for a public audience, and athletic venues.

(D) Order the closing of places of institutional childcare or education 22 such as daycares, preschools, and private educational institutions.

(E) Order that places of private employment take reasonable measures (as determined by each employer) to minimize any exposures to infectious diseases or health risks to employees and customers by, for example, partial or full closures, or authorizing non-essential employees to work from home or take leave, or deploying social distancing protocols.

(F) Cancel city sponsored events and gatherings, cancel or impose limitations or special protocols for the provision of City services and the use of city facilities, and authorize the redistribution or rededication of city resources and budgetary appropriations as necessary to help address or combat the proclaimed emergency.

(G) Enter any agreements authorizing the use of City owned property by 2 third parties, or agreements for the City’s use of non-city owned property, 3 outside of the usual requirements for City real property transactions 4 prescribed ROA 1994 § 5-2-1 et. seq. as necessary to help address or combat 5 the proclaimed emergency.

(H) Issue such other orders as are imminently necessary for the 7 protection of life and property throughout the duration of the emergency, 8 including any provisions above that have not been previously invoked.

§ 2-9-1-[4][5] PUBLICATION OF ORDERS

(B) Any public health emergency proclaimed in accordance with the 2 provisions of §§ 2-9-1-1 et seq. shall take effect immediately, and terminate upon the date set forth by the proclamation, not to exceed thirty (30) days from the issuance thereof, or may terminate sooner upon the issuance of a proclamation by the Mayor determining an emergency no longer exists, whichever occurs first; provided, however, that any emergency proclamation may be sooner terminated or amended by resolution of the City Council prior to the termination of 30 days or may be extended by any resolution of the Council as originally proclaimed or with amendments for any such additional periods of time as deemed necessary by the City Council up to a maximum of ninety (90) days per proclamation].

§ 2-9-1-8 NON-LIMITATION OR INTERFERENCE WITH OTHER AUTHORITY

Nothing herein is intended to limit the power or authority of the Mayor with respect to the control and management of City resources and facilities that generally exists even outside the existence of a civil emergency. However, notwithstanding the emergency powers authorized herein, closures or limitations for any office or place of gathering or meeting necessary for carrying out the business of the City Council may occur only by order of the City Council.”

http://www.cabq.gov/council/documents/2020-o-4-proposed-fs-davis.pdf

COMMENTARY AND ANALYSIS

The entire 1960 Civil Emergency Powers ordinance should have been repealed out right. It contains archaic language and many provisions that are likely unenforceable and unconstitutional. In particular the provisions of the original ordinance regarding curfews (section A) gasoline sales and rationing (section E) and order the discontinuance of selling, distributing, dispensing or giving away of any firearms or ammunition (section F) are all likely unenforceable or unconstitutional. Sections (C) allowing the Mayor to close all retail package liquor stores and outlets and (D) allowing the Mayor to close all bars and other establishments selling intoxicating liquor or beer by the drink usurps the powers of the State that has exclusive authority over liquor licensing. Sections A, C, D E, F of § 2-9-1-3 of the 1960’s Emergency Powers Ordinance usurp the powers of the State or Federal Government and are not within the authority of the city council as provided by the city charter.

Instead of repealing the 1960 Civil Emergency Powers, the City Council, and in particular President of the City Council Pat Davis, had a knee jerk reaction because of current events involving the corona virus pandemic. The City Council rushed the enactment of amendments to the ordinance in a panic by calling an emergency meeting that violated the New Mexico Open Meetings Act. The city council barred the public from attending the meeting. It was also a mistake for Mayor Keller to sign off on the changes to the ordinance and he should have vetoed it. Instead, Keller declared an emergency less than 48 hours after passage of the ordinance amendments.

POWER GRAB

The Emergency Powers Ordinance as amended by the City Council gives the City Council the authority to amend, cancel or extend the Mayor’s order, which amounts to nothing more than a “power grab” by the city council. The City Council can now very easily usurp the authority of the Mayor once an Emergency Declaration is proclaimed, something the Mayor has now acquiesced in by not vetoing the ordinance amendments.

Mayor Tim Keller under the city charter already has inherent emergency authority powers to protect the public health, safety and welfare to do much of what is contained in his emergency declaration when it comes to allocating city staff and resources as necessary to address the current COVID-19 pandemic. The Mayor has authority to issues directive and set priorities for the Police, Fire, Planning Code enforcement and Family and Community services. He did not need the city council’s permission to make the declaration. Those inherent powers would also likely include making “emergency procurements”, likely subject to city council approval, to protect the health and safety of citizens and property.

Likewise, the Mayors’ requests for financial assistance from the New Mexico Department of Homeland Security and Emergency Management and state agencies and the Federal Emergency Management Agency could have been made with a Declaration of Emergency without the new provisions or the amendments to the ordinance.

CONCLUSION

The ordinance enacted is in fact void and unenforceable. Notwithstanding, Mayor Keller signed off on it and then immediately issued his Declaration of Emergency. But that does not excuse the City Council from following the law.

From a practical standpoint, the most prudent thing for the City Council to do now is to rewrite the ordinance and convene another meeting and ensure compliance with Open Meeting Act and to try to follow the guidelines of the Attorney General. The urgency of the legislation has been diminished significantly with the city implementation of actions as well as the Governor’s actions.

It is in time of crisis such as these that the character of elected officials and their true commitment to civil rights is revealed. No one is above the law, especially the Albuquerque City Council who acted irresponsibly and rushed to put forth and enact legislation without any real public input or listening to the public concerns. The City Council enacted legislation without allowing voters the right to exercise their constitutional rights of free speech and due process. Instead the city council engaged in a “power grab” to make sure they could take actions to interfere with the Mayor’s efforts to deal with the crisis.

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POSTSCRIPT

On Tuesday, March 17, the very day after the City Council meeting, Attorney General Hector Balderas issued “Guidance to Public Entities Regarding Open Meetings Act and Inspection of Public Records Act Compliance During COVID-19 State of Emergency” following is the press release in full:
For Immediate Release:

March 17, 2020
Contact: Matt Baca — (505) 270-7148
AG Balderas Issues Guidance to Public Entities Regarding Open Meetings Act and Inspection of Public Records Act Compliance During COVID-19 State of Emergency

Santa Fe,NM—Today [March 17], Attorney General Balderas issued the following guidance to public entities across the State of New Mexico regarding their ongoing obligations to comply with the Open Meetings Act (OMA) and the Inspection of Public Records Act (IPRA) during the state of emergency in New Mexico.

“The health and safety of New Mexican families is the number one priority across our State, but government must remain transparent and accountable, especially during a state of emergency,” said Attorney General Balderas. “All public entities should follow the guidance of public health officials and make any necessary adjustments to ensure compliance with our transparency laws during this time.”

The Office of the Attorney General advises all public entities subject to OMA to first and foremost follow the guidance of the Department of Health and other health officials to ensure the health and safety of both members of the entity and the public. Accordingly, the most prudent thing to do to ensure compliance with OMA would be to postpone any non-essential public meeting during the pendency of the state of emergency. If, however, a public entity has an emergency or time-sensitive matter to attend to, it may proceed with a virtual meeting under the following guidelines:

· Notice of the meeting must still comply with the mandates of OMA, and it should contain detailed information about how members of the public may attend and listen via telephone, live streaming, or other similar technologies—this should include such detail as relevant phone numbers, web addresses, etc.;
· While provided by alternative means, the public must have some form of access to the meeting to substitute for the access it would during any normally scheduled public meeting subject to OMA;
· Where possible, videoconference is the best alternative method of holding meetings;
· At the start of the meeting, the chairperson should announce the names of those members of the public entity participating remotely;
· All members of the public entity participating remotely must identify themselves whenever they speak and must be clearly audible to the other members of the public entity and to the public;
· The chairperson or person leading the meeting should suspend discussion if the audio or video is interrupted;
· All votes of the public entity should be by roll call vote;
· The public entity should produce and maintain a recording of the open session of the meeting.

To comply with IPRA, the Office of the Attorney General recommends that, first, agencies continue to satisfy IPRA’s deadlines and fulfill IPRA requests however possible in light of Department of Health’s recommendations and any order pursuant to the state of emergency. Of paramount importance, as is always the case, a public entity’s records custodian should communicate promptly with the requesting party, however now regarding the circumstances of production in the context of the state of emergency.

Pursuant to public health guidelines during the state of emergency, public entities should suspend all in-person inspection of public records during the pendency of the state of emergency. Public entities should make every effort to comply with the mandates of IPRA by producing records electronically. If circumstances arise where records are not available electronically and cannot be produced in the timeframes mandated by IPRA, an agency may designate a request as excessively burdensome due to the state of emergency, and communicate to the requestor that the request will be fulfilled as required by IPRA when the state of emergency is lifted.

In short, IPRA very much still applies and all deadlines should be satisfied to the fullest extent possible. Where the state of emergency hampers or otherwise prohibits an entity’s ability to respond, we reiterate that the entity nonetheless should communicate promptly with the requester to make alternative arrangements to allow for the inspection of records, in keeping with the spirit and intent of IPRA.
The Office of the Attorney General continues to be available to any public entity that has questions or concerns about OMA and IPRA compliance, and will also continue to take OMA and IPRA complaints during the state of emergency.”

For a related blog articles see:

March 16 City Council Meeting Violated New Mexico Open Meetings Act By Excluding Public Attendance; Criminal Penalties Provided; City Council’s Enactment of Ordinance Giving ABQ Mayor “Emergency Powers” Void

Mayor Tim Keller Declares Public Health Emergency Without Press Conference; ACLU Raises Overreach Concerns; Rio Grande Foundation Files Suit Alleging Violation Of Open Meetings Act; Gov. MLG Upstages Mayor With Her Press Conference

Closures Announced As Quickly As Coronavirus Virus Spreads; “Stay At Home” Orders Issued; Federal $2 Trillian Emergency Aide Package; Olympics Postponed

Albuquerque, New Mexico and the country has seen a remarkable and historical time as all government struggles to deal with the coronavirus and suppress the curve on the highly contagious virus.

Following are the major highlights:

GOVERNOR MICHELLE LUJAN GRISHAM DECLARES PUBLIC HEALTH EMERGENCY

On March 11, Governor Michelle Lujan Grisham became the first New Mexico Governor to invoke the 2003 Public Health Emergency Response Act (PHERA), issuing an Executive Order declaring a “public health emergency” giving her administration broad powers to deal with the coronavirus . The governor urged people to avoid public gatherings, sanitize common surfaces and minimize contact with other individuals, even if it means staying home from church or going out less often in order to slow transmission of the virus.

During a press conference declaring the emergency, Lujan Grisham said New Mexico has 2,400 tests available to determine who has the coronavirus. Health officials will be determining who is most in need of the test. The state has completed about 129 tests for the coronavirus so far and just 5 have turned up “presumptive positive.”

https://www.abqjournal.com/1430120/nm-has-three-confirmed-cases-of-coronavirus.html

In announcing the Public Health Emergency the Governor had this to say:

“This is a very highly infectious virus. … This is a serious situation. I will use every tool and resource to keep us safe.”

STOCK MARKET CRASH

On Friday, March 12, 2020, the stock market crashed to its worst day since 1987, shrugging off dramatic intervention by two central banks and a prime-time address by President Trump as Americans realized the coronavirus will impose new limits on their daily lives.

The Dow Jones industrial average posted its largest one-day point loss in history, dropping almost 2,353 points to close at 21,200.62. In percentage terms, the 10 percent loss marked the Dow’s worst day since the infamous October day known as “Black Monday.”

The broader Standard & Poor’s 500-stock index fell into a bear market, defined as falling 20 percent from a prior high. In an epic day-long rout, European markets suffered similar declines, with exchanges in Paris and Frankfurt shedding more than 12 percent and London’s FTSE index losing nearly 11 percent.

https://www.washingtonpost.com/us-policy/2020/03/12/markets-stocks-today-coronavirus/

EVENTS SCHEDULED AT STATE OWNED FACILTIES CANCELLED

In the interest of public safety, Governor Lujan Grisham ordered the cancellation or postponement of all events in state-owned facilities including the Gathering of Nations. All events at Expo New Mexico have been canceled at least through the end of March. These include the Monster Jam, Rio Grande Arts and Crafts Festival, the World Series of Team Roping, ABQ Rubber Stamp Show, Southwest Chocolate and Coffee Festival, Central New Mexico STEM Research Challenge, MasterWorks of New Mexico, New Mexico Renaissance Celtic Festival, New Mexico Photographic Art Show, and Treasures of the Earth Gem, Mineral and Jewelry Expo. The flea markets have also been closed through the end of the month.

NEW MEXICO HEALTH SECRETARY ANNOUNCES BAN ON PUBLIC GATHERINGS

On March 12, New Mexico Health Secretary Kathy Kunkel announced a temporary ban on public mass gatherings of 100 people or more, as the state’s efforts to slow the spread of the coronavirus have rapidly intensified. Secretary Kunkel has the authority to impose the ban under the 2003 Public Health Emergency Response Act (PHERA) now that the Governor has declared a public health emergency. Mass gathering means any public or private gathering that brings together 100 or more individuals in a single room or connected space in close proximity to one another.

The ban announced by Secretary Kunkel applies to facilities such as auditorium, stadium, arena, large conference room, meeting hall, theaters, or any other confined indoor or outdoor space. The ban took effect immediately. However, airports, public transportation and shopping malls are exempt from the order. It also does not apply to weddings, funerals, restaurants, bars, hospitals and schools, retail stores, grocery stores, offices, businesses, clinics, courthouses, places of worship or shopping Malls.

https://www.abqjournal.com/1430774/nm-health-secretary-issues-ban-on-large-public-gatherings.html

NEW MEXICO EDUCATION SECRETARY ANNOUNCES PUBLIC SCHOOL CLOSURES FOR 3 WEEKS, LIKELY WILL CLOSE UNTIL END OF SCHOOL YEAR

Late March 12, Cabinet Education Secretary Ryan Stewart announce that all New Mexico public schools will be closed and classes canceled, starting Monday, March 16, for three weeks and ending April 6. On March 23, the Governor said it is likely all public schools will remain closed until the end of the school term.

Education Secretary Ryan Stewart had this to say about the school closures:

“This is a proactive measure to limit the potential community spread of COVID-19. …We have seen other states take this measure after they have experienced community spread of this virus. New Mexico is going to be proactive and do everything we can to prevent the potential spread of the virus. I have been in communication with all of our superintendents about this proactive step, and we are all going to work together to address this public health challenge.”

https://www.kob.com/news/all-nm-public-schools-canceled-for-three-weeks/5672931/?cat=500

ARCHBISHOP ANNOUNCES CATHOLIC CHURCH AND SCHOOL CLOSURES

On Thursday, March 12, Archbishop John C. Wester announced on Thursday, March 12, that the Archdiocese of Santa Fe is canceling its church services and closing its schools until further notice, effective immediately, following the lead of state officials who have ordered the closure of all New Mexico K-12 public schools for three weeks. The measures were taken to prevent community spread of COVID-19. The Archbishop had this to say about his decision:

“The church is very much pro-life and we see this as very much a pro-life issue. … We are concerned about the health of our parishioners, particularly those who are elderly, and people with underlying and chronic health conditions.”

https://www.abqjournal.com/1431060/archdiocese-of-santa-fe-halting-church-services-indefinitely.html

TRUMP DECLARES NATIONAL EMERGENCY

On March 13, President Donald Trump declared a national emergency to freeing up to $50 billion in federal resources to combat coronavirus. The announcement was part of a new measures Trump hopes can bring a roiling health crisis under control after a week of market seesaws and major disruptions to everyday life.

https://www.cnn.com/2020/03/13/politics/donald-trump-emergency/index.html

STATE ORDERS MORE HEALTH RESTRICTIONS

On Sunday, March 15, Health Secretary Kathy Kunkel, announce an amended public health order with restrictions that apply to all restaurants, bars, breweries, eateries and other food establishments. Under the public heath order, restaurants and bars are being ordered to operate at no greater than 50% occupancy, with no more than 50% of seating capacity. The order also prohibits the establishments from seating more than 6 people at tables and booths, and it mandates that all occupied tables and booths be separated by at least 6 feet. Patrons will no longer be allowed to be seated at bars, and they can’t be served if they’re standing.

In a news release announcing the new rules Gov. Michelle Lujan Grisham said:

“The best thing New Mexicans can do right now is self-isolate and limit person-to-person contact. … We all have to pull together in this effort. Keep washing your hands with soap and water regularly. Stay at home.”

OTHER STATE CLOSURES

Beginning March 15, all state museums, historic sites, parks and cultural institutions were closed until further notice. Government offices that provide direct services, including the Motor Vehicles Division, will begin limiting staff and shifting toward a remote-service model. All other state buildings and leased state offices will be closed to the public.

CITY OF ALBUQUERQUE

The city of Albuquerque announced March 15, that it would continue essential services while maximizing distance between employees. It has also announced that all BioPark facilities will be closed through April 15.

According to a news release, all employees who can will be allowed to “teleworking” to work from home. Non-essential employees who cannot telework will be sent home. Essential employees who can work in the field will be asked to do so exclusively. Workers who cannot come into work because of these policies will receive paid leave. The City also announced that the Westside Emergency Housing Center will be kept open 24-hours a day until further notice with the city screening and testing people who are using the shelter.

GLOBAL OIL PRICE WAR

On March 17 Goldman Sachs Group Inc. the rate of petroleum consumption was dropping by about 8 million barrels a day, or about 8% of global demand. The Russia and OPEC price war has sent Brent crude, the global benchmark, below $30 a barrel and prompted energy companies including Exxon Mobil Corp. to plan for big spending cuts. Russia and OPEC are boosting their exports just as global oil demand suffers an historic contraction due to the coronavirus pandemic.

With the price war showing no sign of abating and demand falling, Wall Street is slashing its oil forecasts. Goldman is now predicting that the average will be $20 a barrel during the second quarter. Oil traders privately say the benchmark could even drop into the single digits to force some producers to shut down their wells. That’s something that hasn’t happened since the industry downturn of 1997 to 1999.

https://www.bloomberg.com/news/articles/2020-03-17/saudis-to-boost-oil-exports-to-record-10-million-barrels-a-day

MAYOR TIM KELLER ANNOUNCES STATE OF EMERGENCY

On Wednesday, March 18, less than 48 hours after the Albuquerque City Council passed the amended “Emergency Powers Ordinance”, Mayor Tim Keller declared a Public Health Emergency to deal with the corona virus in the city. The Mayor announced and signed the declaration on a video posted on social media and distributed to the local new outlets. In the video announcement, Keller said the declaration “frees up financial resources for our city and flexibility so we can deal with this situation the best way possible.”

The emergency declaration allows the Keller administration to allocate city staff as necessary to address the current COVID-19 pandemic. It will also allow for the city to make “emergency procurements” to protect the health and safety of citizens and property. It also serves as a request for state and federal assistance.
The Mayor’s “Declaration of Local State of Emergency” makes 2 specific requests for financial assistance from the New Mexico Department of Homeland Security and Emergency Management and state agencies and the Federal Emergency Management Agency.

POSSIBILITY OF A “VIRTUAL” SPECIAL SESSION

On March 19, Governor Michelle Lujan Grisham sent a letter to the NM legislative leaders telling them that she will convene a special session to deal with the imploding oil prices that has caused a budget crisis for the state. The question is when and how? Before such a special session is called, and update on the States revenue estimates and the extent federal emergency assistance must he determined. The special session is likely to be called in mid-June, will likely be only one or two days in length an will be done with by “virtual reality” telecommunications.

On March 23, House Speaker Brian Egolf, D-Santa Fe, said that his staff is conducting research into the possibility of conducting the special session meeting through an online program that allows for seminars over the web. The feasibility of a virtual session with ALL 117 members of the legislature connecting online to cast their votes and debate bills.

https://www.abqjournal.com/1435818/a-special-session-with-few-lawmakers-present-ex-new-mexico-examines-ideas-for-online-debate-and-voting.html

STAY AT HOME ORDER

On Monday, March 23, Governor Michelle Lujan Grisham announced the closure of all “non-essential” businesses statewide and delivered the message to state residents to stay home and only go out when absolutely necessary by saying:

“If we limit person to person contact, we will be doing everything in our power to slow the spread. … I need you to heed this order. I need every New Mexican to do their part. Everyone in this state has a social contract for responsibility for one another. … If you don’t take this [seriously], then we can’t reduce the spread of COVID-19. … We don’t take these orders lightly. … I have to prevent as many deaths as possible from this unfair, vicious virus.”

The “stay at home” order is no different than the “shelter in place” orders implemented by the governors of California, New York and several other states. The new order also expands an existing ban on large public gatherings, directing that such gatherings be limited to no more than five people, even family outings. The limit had previously been set at no more than 100 people, and more recently at no more than 10.

According to the Governor, statewide the virus has infected 83 people and hospitalized nine of them statewide, though only five of those individuals remain in the hospital. Testing for the virus has increased significantly and New Mexico is now running roughly 850 coronavirus tests per day. Confirmed cases have now been reported in 11 of the state’s 33 counties.

Department of Health Deputy Epidemiologist Chad Smelser said community spread has been detected in both Bernalillo and Santa Fe counties which means meaning the disease has been transmitted from individual to individual within those counties.

The governor said things will get worse in the coming weeks and said it is highly likely that schools will remain closed beyond April 6, when the initial closure was set to expire.

https://www.abqjournal.com/1435599/lujan-grisham-to-announce-stay-at-home-instruction.html

For a list of “essential businesses” that will remain open see postscript to this blog article.

MASSIVE FEDERAL AIDE PACKAGE

As of Tuesday, March 25, the United States congress is attempting to enact a $2.5 trillion dollar emergency aid package that will include $1, 200 in direct payments to the American people now out of work. The massive aid package is a far-reaching effort to prop up the U.S. economy, help American households and bolster the health care system amid the growing crisis.

Even though Trump’s administration recommended Americans curtail activities starting a week ago, the president said:

“We cannot let the cure be worse than the problem itself. At the end of the 15-day period, we will make a decision as to which way we want to go. Let’s go to work. … This country was not built to be shut down. This is not a county that was built for this.”

Trump added that he may soon allow parts of the nation’s economy, in regions less badly hit by the virus, to begin reopening, contradicting the advice of medical and public health experts across the country, if not the globe, to quarantine even more.

Speaker of the House Nancy Pelosi sharply criticized Trump’s idea of allow business to open and his fluctuating response to the crisis by saying:

“He’s a notion-monger, just tossing out things that have no relationship to a well-coordinated, science-based, government-wide response to this. … Thank God for the governors who are taking the lead in their state. Thank God for some of the people in the administration who speak truth to power.”

OLYMPICS POSTPONED

On Tuesday March 24, bowing to pressure from countries pulling out of the Olympics, the International Olympic Committee (IOC) announced a first-of-its-kind postponement of the Summer Olympics. The said the Tokyo Games “must be rescheduled to a date beyond 2020, but not later than summer 2021, to safeguard the health of the athletes, everybody involved in the Olympic Games and the international community.”

TAKE PRECAUTIONS TO PROTECT YOURSELF AND FAMILY

Older adults and those with chronic illnesses are most at risk to contract the virus that could result in death from complications.

Even healthy young people not worried about getting sick should take steps to protect themselves and others.

The strategy must be to limit the chance of transmitting the disease to persons who are more vulnerable.

Government officials urged people to protect themselves by:

Washing their hands frequently with soap and water for at least 20 seconds
Cleaning “high-touch” surfaces daily with regular household cleaners
When coughing, use a tissue or cough into the forearm of your elbow
Avoiding the sharing of personal household items
Stay home when sick
Avoid large crowds and public events

_______________________________________________________________________

POSTSCRIPT

Gov. Michelle Lujan Grisham on Monday ordered the closure of all non-essential businesses in New Mexico as the state works to limit the spread of COVID-19.
The Governor’s office posted a lengthy list of business types that are essential and that will remain open:

HEALTHCARE / PUBLIC HEALTH

• Hospitals
• Walk-in-care health facilities
• Emergency veterinary and livestock services
• Pharmacies
• Medical and wholesale and distribution
• Home health care workers or aides for the elderly
• Emergency dental facilities
• Nursing homes
• Residential health care facilities
• Research facilities
• Congregate care facilities
• Intermediate care facilities for those with intellectual or developmental disabilities
• Supportive living homes
• Home health care providers
• Medical supplies and equipment manufacturers and providers
• Medical cannabis

EMERGENCY SERVICES

• Law enforcement personnel
• First Responders
• Firefighters
• Emergency management personnel
• Dispatch operators
• Court personnel

CHILDCARE

• Facilities necessary to provide services to those workers employed by essential businesses and essential non-profit entities.

INDIGENT CARE

• Homeless shelters
• Food banks
• Other services providing care to indigent or needy populations

INFRASTRUCTURE OPERATIONS

• Public works construction
• Commercial and residential construction and maintenance
• Utilities, including their contractors and suppliers, involved in water and waste-water supply
• Sewer, trash and recycling collection, processing and disposal
• Road and highway repair and construction
• Solid waste collection and removal
• Nuclear material research and enrichment
• Data and internet providers
• Data centers
• Telecommunications systems

FOOD AND AGRICULTURE

• Farms, ranches and other food cultivation, processing or packaging operations
• Grocery stores and supermarkets
• All food and beverage stores
• Food banks
• Farmers’ markets
• Vendors who sell food
• Convenience stores
• Other businesses that generate most of their revenue from the sale of canned food, dry goods, fresh fruits and vegetables, pet food, fresh meats, fish and poultry, and any other household consumer products
• Businesses that store, ship or deliver groceries, food, goods or services directly to residences or retailers
• Restaurants, but only for delivery or carryout

ENERGY

• Gas and oil drilling and refining
• Electrical production and distribution
• Natural resources extraction or mining operations
• Utilities, including their contractors and suppliers, engaged in power generation, fuel supply and transmission

MANUFACTURE

• Food processing
• Chemicals
• Fertilizer
• Pharmaceuticals
• Sanitary products
• Household paper products
• Telecommunications
• Microelectronics/semiconductors
• Primary metals
• Machinery
• Electrical equipment
• Appliance
• Components
• Transportation equipment

DEFENSE RESEARCH

• Laboratories
• Defense and national security-related operations supporting the U.S. government or a U.S. government contractor

TRANSPORTATION

• Airport operations
• Airlines
• Taxis and other private transportation providers
• Gas stations
• Automobile repair facilities
• Retailers who generate most of their revenue from the sale of automobile repair products

SERVICE SECTOR

• Plumbers
• Electricians
• Security services
• Custodial services
• Other skilled trades necessary to maintaining the safety and sanitation of residences
• Businesses providing mailing and shipping services, including post office boxes

PROFESSIONAL SERVICES

• Legal services as necessary to assist in compliance with legally mandated activities
• Accounting services as necessary to assist in compliance with legally mandated activities

FINANCIAL SERVICES

• Banks
• Credit unions
• Insurance providers
• Payroll services
• Brokerage services
• Investment management firms

MEDIA

• Television
• Radio
• Newspaper operations

MISCELLANEOUS

• Essential manufacturing
• Laboratories and defense and national security-related operations supporting the U.S. government or a contractor to the U.S. government
• Hardware stores, nurseries and businesses that generate most of their revenue from the sale of home-improvement goods
• Laundromats and dry cleaner services
• Funeral homes, crematoriums and cemeteries
• Real estate services including brokers, title companies and related services

https://www.abqjournal.com/1435699/what-businesses-are-essential.html

Oil Price War Reason Why NM Legislature Special Session Required, Not Corona Virus Pandemic

Just when things were looking great with respect to oil and gas royalties to finance state government, BAM the corona virus hits, a global oil price war intensifies, and New Mexico gets hit in the process, all within one month since the adjournment of the New Mexico legislature on February 20. . The global oil price war has hit hard the state’s revenue boom, harder than anyone expected. It has caused the state budget surplus to evaporate. The New Mexico Legislature’s finance analysts had pegged oil prices for the budget year that ends in June to an average $52 per barrel with oil prices per barrel of crude now hitting $21.

On February 20, the New Mexico legislature ended having enacted a $7.6 Billion dollar budget for the 2020-2021 fiscal year. The enacted budget raised annual spending by $536 million, or by nearly 8% over last year’s budget. The increase in spending was a result of record-breaking oil production in the Permian Basin with the state originally anticipating at least an $800 million increase in state government income during the coming budget year. The legislature also enacted a separate $49.5 million in capital outlay projects. Oil and natural gas represent 39% of New Mexico’s General Fund revenues. The 2020-2021 fiscal year begins July 1.

https://markets.businessinsider.com/commodities/oil-price?type=wti

Passage of the $7.6 billion budget plan for the 2021 budget year was predicated on oil averaging $52 per barrel. The price of crude oil per barrel has now plummeted to an alarming $20 dollars a barrel and is expected to go down even further. With each $1 drop a barrel in oil prices, the state loses upwards of $22 million in direct oil and gas revenue over a full year. Within one month of adjournment of the New Mexico legislature, the corona virus hit the country and hit New Mexico, but the oil price war between Russia and the Organization of Petroleum Exports (OPEC) has hit the state coffers even harder. The biggest fear is that oil prices will drop to single digits.

NEW MEXICO’S RELIANCE ON OIL AND GAS REVENUES

A report by the New Mexico Tax Research Institute released in January, 2020, revealed that the oil and natural gas industry contributed more than $3.1 billion in tax revenue for fiscal year 2019, a dramatic 41% from the $2.2 billion generated the year before. The $3.1 billion was an increase of $910 million from 2018. Oil and natural gas represent 39% of New Mexico’s General Fund revenues, the highest share of all industries in recent history.

https://www.nmoga.org/FuelingNewMexico

The New Mexico oil industry’s historic energy production was enabling unprecedented investment by Mew Mexico in education. In FY 2019, the oil and gas industry contributed $1.36 billion to public education, representing a 28% increase over FY 2018. New Mexico’s highest producing oil and gas counties were Lea and Eddy County. The counties received a combined $90.2 million for K-12 and higher education programs.

While the majority of production takes place in the Southeast and Northwest quadrants of the state, benefits from the oil and natural gas industry were felt statewide. Bernalillo, Santa Fe, Sandoval, and Valencia counties obtained the most education funding, receiving a combined $624 million, according to the report. Not surprising the two largest populated counties received the most in funding. Bernalillo County was the top recipient with $435.9 million, followed by Doña Ana County with $195.2 million.

Public schools and higher education received $1.36 billion from state oil and gas revenue in FY 2019, up a staggering $300 million from FY 2018. It includes upwards of $1.06 billion for primary and secondary education, and $302 million for state universities, colleges and other higher education institutions.

https://www.energyindepth.org/oil-industry-sets-new-record-with-3-1-billion-in-revenue-for-2019-new-mexico-budget/

https://www.abqjournal.com/1410518/nm-earned-31bn-in-oil-gas-revenue-in-fy-2019.html

OIL PRICE WAR RESULTING IN GLUT IMPACTING STATE

In 2017, an oil production agreement was entered into between Russia and the OPEC countries. The agreement suppressed world production approaching 2 million barrels of crude oil a day. The suppressed oil production output lead to very stable oil prices of $50 to $60 a barrel of crude oil. The Russia – OPEC agreement expires on March 31, and the oil producers are expected to ramp up production that will flood the global markets with unprecedented levels of supply. A price war will ensue as the oil producers battle it out to see who will last the longest and gain most market share amid low prices.

The Russia and OPEC price war has sent Brent crude, the global benchmark, below $30 a barrel and prompted energy companies including Exxon Mobil Corp. to plan for big spending cuts. Russia and OPEC are boosting their exports just as global oil demand suffers an historic contraction due to the coronavirus pandemic. On March 17 Goldman Sachs Group Inc. the rate of petroleum consumption was dropping by about 8 million barrels a day, or about 8% of global demand.

With the price war showing no sign of abating and demand falling, Wall Street is slashing its oil forecasts. Goldman is now predicting that the average will be $20 a barrel during the second quarter. Oil traders privately say the benchmark could even drop into the single digits to force some producers to shut down their wells. That’s something that hasn’t happened since the industry downturn of 1997 to 1999.

https://www.bloomberg.com/news/articles/2020-03-17/saudis-to-boost-oil-exports-to-record-10-million-barrels-a-day

No one knows for certain how long the economic shutdown from coronavirus will last, it could be weeks, months and perhaps even more. Additionally, no one knows for certain how long the price war between Russia and OPEC Countries will continue. The two events combined have pushed the price of U.S. benchmark West Texas Intermediate to $20.06 a barrel as of March 19, the lowest price per barrel of crude oil since 1998.

With the expected April surge in world oil production looming as a result of the Russia and OPEC price war, Exxon said that it’s reassessing its previously announced spending cuts. Major oil companies like Exxon-Mobil and Occidental Petroleum have announced immediate investment cuts ranging from 20% to 40% as a result of the plummeting oil prices.

Occidental has announced it will cut spending by 32%. Exxon Oil has said it will lower its global investments from $30 billion to $35 billion. It’s the Exxon cuts that will have the most impact on New Mexico’s oil royalty’s revenue stream. Exxon has already announced it plans to reduce operating rigs by 20% in Permian Basin from southwestern Texas northward into the New Mexico counties of Lea and Eddy counties.

The 20% decline represents upwards of 4 million barrels a day now produced in the Permian. As the crisis continues, further production oil production will drop in New Mexico impacting the state major revenue source. New Mexico recently reached a historic high of 117 operating rigs despite the current prices no doubt as the result of the delay in the crisis taking a strangle hold of the industry. But that is about to change dramatically.

Daniel Fine, an energy researcher with New Mexico Tech in Socorro, in an interview with the Albuquerque Journal, said the situation is dire for the Permian Basin in West Texas and southeastern New Mexico, and for the northwestern San Juan Basin in the Four Corners region. Fine projects the total rig count for oil production in New Mexico will drop to between 50 and 60 in the coming weeks resulting in between 2,300 and 2,700 lost jobs, reflecting layoffs of 40 workers per oil rig.

According to Fine:

“The damage from this crisis will be greater and last longer than the last industry downturn in 2014-2016. Production in the Permian Basin will have to decline by at least 600,000 to 700,000 barrels of oil per day or more before the situation gets any better.”

https://www.abqjournal.com/1434329/special-session-talk-intensifies-amid-oil-price-downturn.html

COMMENTARY AND ANALYSIS

It is clear that the corona virus is a very infectious disease that is spreading like a wild fire throughput the world, the United States and now New Mexico. What is happening in the world, country and state are indeed historical in every sense of the word and cannot be downplayed. When it comes to New Mexico, the corona virus is short term compared to the effects of the oil price war on New Mexico’s economy and far more damaging on so many levels.

State officials and oil industry leaders are hoping a modest rebound in oil prices heading into summer as the corona virus contagion slows and businesses and consumer demand bounce back. For now, when it comes to New Mexico’s budget, the worst needs to be prepared for as actually happening and there is no doubt that Governor Lujan Grisham is facing a major financial and government budget crisis. In times of crisis, drastic measures at times must be taken. Convening a special session, repealing the 2020-2021 budget and going to a “zero growth budget” are such drastic measures, but indeed must be done.

Governor Lujan Grisham needs to go forwards with a special session sooner rather than later. A special session needs to be convened before the enacted budget goes into effect on July 1. Such a special session should not last more than 1 or 2 days predicated on a new budget being hammered out and agreed to before the session is called by the Governor.

For a related bog see:

Gov. Michelle Lujan Grisham To Call Special Session; When And How Is Problematic

Gov. Michelle Lujan Grisham To Call Special Session; When And How Is Problematic

On Thursday, March 19, the top New Mexico House Republicans urged Democrat Governor Lujan Grisham to call a special session to address the state’s impending budget crisis. The Republican lawmakers suggested that current spending levels be kept in place and argued that work begin on crafting a new budget plan for the fiscal year that starts in July 1 and based on revised revenue estimates.

On March 19, Governor Michelle Lujan Grisham sent a letter to the NM legislative leaders telling them that she will convene a special session to deal with the imploding oil prices that has caused a budget crisis for the state. The question is when and how? Before such a special session is called, and update on the States revenue estimates and the extent federal emergency assistance must he determined.

In her letter to legislators, the Governor wrote:

“Over the past days, my office has been in communication with legislative leadership and staff about the type of tools that might be available to make such a modification possible, and the legalities of these steps.”

Senator John Author Smith, the powerful Chairman of the Appropriations committee had this to say about the convening of a special session:

“We’re looking not at ‘if’ there will be a special session but when, although we first need to let things settle a bit more… We’re still trying to figure out where things are going, because we’re still on a downward trajectory and we need to wait a bit before we jump.”

WHAT THE HELL HAPPENED

On February 20, the New Mexico legislature ended having enacted a $7.6 Billion dollar budget for the 2020-2021 fiscal year. The enacted budget raised annual spending by $536 million, or by nearly 8% over last year’s budget. The increase in spending was a result of record-breaking oil production in the Permian Basin with the state originally anticipating at least an $800 million increase in state government income during the coming budget year. The legislature also enacted a separate $49.5 million in capital outlay projects. The 2020-2021 fiscal year begins July 1.

During the 30-day legislative, passage of the $7.6 billion budget plan for the 2021 budget year was predicated on oil averaging $52 per barrel. With each $1 drop a barrel in oil prices, the state loses upwards of $22 million in direct oil and gas revenue over a full year. Within one month of adjournment of the New Mexico legislature, the corona virus hit the country and hit New Mexico hard.

On March 10, Governor Michelle Lujan Grisham vetoed the $49.5 million capital spending bill citing the financial crisis over the loss of oil revenues. The Governor had until March 11 to sign off on the state’s $7.6 billion budget bill for the fiscal year that begins July 1.

On March 11, due to concerns over plummeting oil prices and the impact of the coronavirus, Lujan Grisham signed into law the $7.6 billion spending plan but not before exercising her line item veto power. The Governor line item vetoed more than $100 million worth of projects from an accompanying public works package, but such vetoes will not be enough to deal with the loss revenues to the state.

The oil price war between Russia and the Organization of Petroleum Exporting Countries (OPEC) ensued and hit hard the state’s revenue boom and it has caused the state budget surplus from oil production to evaporate. The New Mexico Legislature’s finance analysts had pegged oil prices for the budget year that ends June 30 to average $52 per barrel. The price of oil per barrel has now plummeted to $22 dollars a barrel. A $22 a barrel price will result in between $600 and $700 million in direct revenue loss to the state and nearly $1 billion of gross receipts taxes lost to the state.

WHAT, WHEN AND HOW FOR SPECIAL SESSION PROBLEMATIC

According to Governor Lujan Grisham, when she calls for the special session, it will focus on adjusting the proposed spending levels for the budget year that starts in July 1. It will also address public health needs to deal with the pandemic and crafting an economic relief package for workers, businesses and New Mexico communities.

The governor said her administration was looking into ways to possibly call a special session without all 112 legislators being present in the state Capitol itself as a precaution against the corona virus. The Governor has barred public gatherings of 10 people or more in an effort to slow the spread of the corona-virus, but a special emergency session of the legislature could be deemed and exception, but does not eliminate the effect of exposure of the virus to lawmakers.

IMPENDING OIL PRICE WAR IMPACTING STATE

In 2017, an oil production agreement was entered into between Russia and the OPEC countries. The agreement suppressed world production approaching 2 million barrels of crude oil a day. The suppressed oil production output lead to very stable oil prices of $50 to $60 a barrel of crude oil. The Russia – OPEC agreement expires on March 31, and the oil producers are expected to ramp up production that will flood the global markets with unprecedented levels of supply. A price war will ensue as the oil producers battle it out to see who will last the longest and gain most market share amid low prices.

The Russia and OPEC price war has sent Brent crude, the global benchmark, below $30 a barrel and prompted energy companies including Exxon Mobil Corp. to plan for big spending cuts. Russia and OPEC are boosting their exports just as global oil demand suffers an historic contraction due to the coronavirus pandemic. On March 17 Goldman Sachs Group Inc. the rate of petroleum consumption was dropping by about 8 million barrels a day, or about 8% of global demand. With the price war showing no sign of abating and demand falling, Wall Street is slashing its oil forecasts. Goldman is now predicting that the average will be $20 a barrel during the second quarter. Oil traders privately say the benchmark could even drop into the single digits to force some producers to shut down their wells. That’s something that hasn’t happened since the industry downturn of 1997 to 1999.

https://www.bloomberg.com/news/articles/2020-03-17/saudis-to-boost-oil-exports-to-record-10-million-barrels-a-day

No one knows for certain how long the economic shutdown from coronavirus will last, it could be weeks, months and perhaps even more. Additionally, no one knows for certain how long the price war between Russia and OPEC Countries will continue. The two events combined have pushed the price of U.S. benchmark West Texas Intermediate to $20.06 a barrel as of March 19, the lowest price per barrel of crude oil since 1998.

With the expected April surge in world oil production looming as a result of the Russia and OPEC price war, Exxon said that it’s reassessing its previously announced spending cuts. Major oil companies like Exxon-Mobil and Occidental Petroleum have announced immediate investment cuts ranging from 20% to 40% as a result of the plummeting oil prices.

Occidental has announced it will cut spending by 32%. Exxon Oil has said it will lower its global investments from $30 billion to $35 billion. It’s the Exxon cuts that will have the most impact on New Mexico’s oil royalty’s revenue stream. Exxon has already announced it plans to reduce operating rigs by 20% in Permian Basin from southwestern Texas northward into the New Mexico counties of Lea and Eddy counties.

The 20% decline represents upwards of 4 million barrels a day now produced in the Permian. As the crisis continues, further production oil production will drop in New Mexico impacting the state major revenue source. New Mexico reached a historic high of 117 operating rigs this week despite the current prices no doubt as the result of the delay in the crisis taking a strangle hold of the industry. But that is about to change dramatically.

Daniel Fine, an energy researcher with New Mexico Tech in Socorro, in an interview with the Albuquerque Journal, said the situation is dire for the Permian Basin in West Texas and southeastern New Mexico, and for the northwestern San Juan Basin in the Four Corners region. Fine projects the total rig count for oil production in New Mexico will drop to between 50 and 60 in the coming weeks resulting in between 2,300 and 2,700 lost jobs, reflecting layoffs of 40 workers per oil rig.

According to Fine:

“The damage from this crisis will be greater and last longer than the last industry downturn in 2014-2016. Production in the Permian Basin will have to decline by at least 600,000 to 700,000 barrels of oil per day or more before the situation gets any better.”

https://www.abqjournal.com/1434329/special-session-talk-intensifies-amid-oil-price-downturn.html

COMMENTARY AND ANALYSIS

The happenings in the world, country and state are indeed historical in every sense of the word. State officials and oil industry leaders are hoping a modest rebound in oil prices heading into summer as the corona virus contagion slows and businesses and consumer demand bounce back. For now, when it comes to New Mexico’s budget, the worst needs to be prepared for as actually happening and there is no doubt that Governor Lujan Grisham is facing a major crisis.

On July 1, 2020 the recently enacted state budget by the New Mexico legislature will be going into effect. Given what is going on nationally, in cities and state’s all over the country, it is likely that the effects of the corona virus health crisis will be with us for months, not weeks resulting in a dramatic effect on the State’s economy and its revenue sources. The risk of the state going into the red and spending even more than it has coming in has now increase dramatically.

The 2020-2021 budget of $7.6 billion spending is predicated on an average oil price of $50 per barrel. State spending over the last 2 years is up 20% largely because of the surplus generated by the Permian basin oil boom. The price of oil has now plummeted to $22 dollars a barrel. There is no end in sight as to how far oil prices will go down and how long it will last. You can bet the price of oil will continue to decline at least as long as the oil price war between Russia and OPEC continues.

According to the Legislative Finance Committee, a $1 change in the average annual New Mexico price of oil has around a $22 million effect on the state general fund. It is clear even to those who are deficient in math and the multiplier effect that there is a looming financial crisis.

PERMANENT FUND MUST BE AN OPTION

This year, New Mexico’s two largest permanent funds, the Land Grant Permanent Fund and Severance Tax Permanent Fund, funds will pump an all-time high of nearly $1.1 billion into state schools, hospitals and other programs in the coming 2020-2021 budget year that starts July 1. The funding is from investment gains and inflows from taxes and royalties from oil production in southeast New Mexico. But that has changed because of the pandemic.

The Land Grant Permanent Fund (LGPF), also known as the Permanent School Fund, is one of the largest funds of its kind in the country, and every year provides more than a half-billion dollars in benefits to New Mexico’s public schools, universities and other beneficiaries . In fiscal year 2020, the Land Grant Permanent Fund generated $784.2 for New Mexico Schools.

For a number of years, many have advocated that upwards of 5% more from the Land Grant Permanent Fund be allocated for early childhood care and education programs. The Land Grant Permanent Fund is often referred to as the rainy-day fund and if there ever was a rainy day in New Mexico, it is now with the historical pandemic. Now is the time to finally divert more money to address the needs of the state with the fund to substitute money allocated in the new budget for the $320 Early Childhood Trust Fund and the $17 million for the new college scholarship program.

STIMULUS NEEDED FOR NEW MEXICO ECONOMY

Many economists are deeply concerned and feel it is inevitable that the state is headed into another recession. If in fact the state suffers yet another recession, the state economy will need a major stimulus. The $49.5 million in construction capital outlay the Governor vetoed would have been such a good start. Likewise, the $100 million in line item vetoes also contained many construction projects that could have help to stimulate the economy.

The Governor’s veto of the capital outlay bill of $49.5 million with the line item veto of another $100 million is no guarantee that it is enough to avoid a state budget crisis, let alone another recession caused by the pandemic.

Although an estimated $1.7 billion in reserves has been set aside, the dramatic decline in oil prices will diminish that with only a fraction of the money accessible without legislative approval in an emergency. The 2020-2021 budget contains $536 million in spending increases, many which are recurring. The $536 million in spending increases include state employee raises such as 4% for teachers and state employees, $76 million to shore up the PERA pension funds, $320 million for Early Childhood Trust Fund, and $17 million for the new college scholarship program. The enacted budget may no longer be fiscally responsible as a result of the dramatic changes brought on the corona virus pandemic and the plunge in oil production.

CONCLUSION

In times of crisis, drastic measures at times must be taken. Convening a special session, repealing the 2020-2021 budget and going to a “zero growth budget” are such drastic measures, but indeed must be done. Further, there should be a way that a “virtual reality” legislative session can be convened where both the House and Senate members can participate by telecommunications from their offices or homes.

There is no doubt that the Governor foresees the impending wave of red ink coming her way by virtue of her $149.5 million in veto cuts and now the financial crisis brought on by the continuing plummeting oil and gas revenue. Given the impending financial crisis caused by the coronavirus, Governor Lujan Grisham knows the importance of conferring with legislative leadership and the Legislative Finance Committee to a special session. The special session needs to be convened before the enacted budget goes into effect on July 1. Such a special session should not last more than 1 or 2 days predicated on a new budget being hammered out and agreed to before the session is called by the Governor.

An option is to repeal the new 2020-2021 budget and enact a zero-growth budget making further cuts in spending and agree to make cuts in the programs the Governor was able to secure as a result of the surplus in oil revenues. Further, of the capital outlay projects vetoed by the Governor need to funded again as a means of stimulating the economy.

If the state in fact plunges into another recession, which at this point is far more likely than not, it will be deeper than the 10 year great recession that started in 2008 that had such a dramatic impact on the state. Unless Governor Lujan Grisham acts quickly with a special session before July 1 when the 2020-2021 budget takes effect, she will start to look and sound like former Republican Governor “She Who Shall Not Be Named” and be forced to make drastic cuts, implement layoffs and once again reduce the size of government during the 2020-2021 budget year. The result will once again be major in further damage to government services and inflicting more pain on New Mexico residents.

For a related blog article see:

Governor MLG Signs $7.6 Billion Budget With $149.5 Million In Vetoes; Nation And State Turn To Boosting Economy As Pandemic Gets Worse; Call Special Session: Repeal Enacted Budget, Enact “Zero” Growth Budget, Allocate More Money From Permanent Fund

Mayor Tim Keller Declares Public Health Emergency Without Press Conference; ACLU Raises Overreach Concerns; Rio Grande Foundation Files Suit Alleging Violation Of Open Meetings Act; Gov. MLG Upstages Mayor With Her Press Conference

On Monday, March 16, the Albuquerque City Council voted 6 to 3 in favor of amending the city’s “Emergency Powers Ordinance” to help prevent further spread of COVID-19. The updated bill expands the mayor’s power to respond to the outbreak. City Councilors Isaac Benton, Diane Gibson, Cynthia Borrego, Klarissa Peña and Lan Sena voted YES to pass the legislation while City Councilors Brook Bassan, Don Harris and Trudy Jones voted NO.

The changes to the ordinance broadens the mayor’s “emergency powers”. The Mayor can declare a public health emergency for up to 7 days. While the mayor can issue the proclamation, the City Council gave itself the authority to amend, cancel or extend the order. The city council is also given authority to reverse any decision declared by the mayor. The powers granted to the mayor would only last for 30 days, but could be lengthened or shortened by the city council.

Under the ordinance, the Mayor has the authority to close streets. The mayor can also require retailers to limit how many “medical, health and sanitation” products they sell to one person per day. The ordinance gives the Mayor authority to close places of big gatherings and gives the Mayor power to close city facilities, relocate city staff and divert funding around to deal with a crisis. The mayor can invoke specific powers such as reallocating city resources to combat the epidemic and ordering the closure of streets, day cares and places of “mass assembly” like theaters and sports venues.

MAYOR TIM KELLER DECLARES A PUBLIC HEALTH EMERGENCY

On Wednesday, March 18, less than 48 hours after the Albuquerque City Council passed the amended “Emergency Powers Ordinance”, Mayor Tim Keller declared a Public Health Emergency to deal with the corona virus in the city. The Mayor announced and signed the “Declaration of Local State of Emergency Due to Novel Corona Virus COVID-19” on a video posted on social media and distributed to the local new outlets. In the video announcement, Keller said the declaration “frees up financial resources for our city and flexibility so we can deal with this situation the best way possible.”

You can review the entire video here:

https://www.facebook.com/MayorKeller/videos/2994717313900761/UzpfSTEwNTQ4MTY4OTY6MTAyMTk0OTExNjc0ODM4OTI/

https://www.krqe.com/health/coronavirus-new-mexico/mayor-keller-declares-local-public-health-emergency-due-to-coronavirus/

https://www.abqjournal.com/1433566/keller-proclaims-emergency-in-albuquerque.html

The emergency declaration allows the Keller administration to allocate city staff as necessary to address the current COVID-19 pandemic. It will also allow for the city to make “emergency procurements” to protect the health and safety of citizens and property. It also serves as a request for state and federal assistance.

The Mayor’s “Declaration of Local State of Emergency Due to Novel Corona Virus COVID-19” makes two specific requests for financial assistance from the New Mexico Department of Homeland Security and Emergency Management and state agencies and the Federal Emergency Management Agency. The entire written Emergency Declaration can be read here:

http://www.cabq.gov/mayor/documents/emergecy-declaration.pdf

Mayor Keller’ emergency declaration does not invoke many of the powers specifically allowed in the ordinance but he did say he could issue “other orders as are imminently necessary.” In the video announcement, Keller went out of his way to emphasize that his declaration does not “do anything with respect to firearms or alcohol sales.”

In a separate press release, Mayor Keller clarified that his declaration does not

• limit the sale or transfer of firearms
• prohibit the sale of liquor
• close streets
• declare a curfew

https://www.krqe.com/health/coronavirus-new-mexico/mayor-keller-declares-local-public-health-emergency-due-to-coronavirus/

POWERS OF THE MAYOR

The government of the city of Albuquerque is often referred to as a strong Mayor, weak council, form of government because of the extent of the authority given to the Mayor under the City Charter.

Article 5, Sections 3 and 4 of City Of Albuquerque Charter provides and delineates the powers and duties of the Mayor.

Article 5, Section 3 entitled “POWERS; PERFORMANCE; APPOINTMENTS” provides:

“The executive branch of the city government is created. The office of Mayor is created. The Mayor shall control and direct the executive branch. The Mayor is authorized to delegate executive and administrative power within the executive branch. The Mayor shall be the chief executive officer with all executive and administrative powers of the city and the official head of the city for all ceremonial purposes. The Mayor shall devote full time and attention to the performance of the duties of office and shall hold no other paid public or private employment.”

Article 5, Section 4 entitled DUTIES OF THE MAYOR, provides in part as follows:

The Mayor shall:
(a) Organize the executive branch of the city;
(b) Exercise administrative control and supervision over and appoint directors of all city departments, which appointments shall not require the advice or consent of the Council except as provided in (d) of this Section;

[EDITORS NOTE: c, d, e, f, g, h, i, j deals with appointments of Chief Administrative Officer, Deputy Administrative Officers, the Chiefs of Police and Fire, City Attorney, City Clerk, Department Directors, Boards and Commissions, city budget preparation, reports and citizen complaints.]

(k) Perform other duties not inconsistent with or as provided in this Charter; and

(l) Faithfully execute and comply with all laws, ordinances, regulations and resolutions of the city and all laws of the State of New Mexico and the United States of America which apply to the city.

http://library.amlegal.com/nxt/gateway.dll/New%20Mexico/albuqwin/cityofalbuquerquenewmexicocodeofordinanc?f=templates$fn=default.htm$3.0$vid=amlegal:albuquerque_nm_mc

AMERICAN CIVIL LIBERTIES UNION RAISES OVERREACH CONCERNS

On March 17, the local chapter of the American Civil Liberties Union in a statement issued said Albuquerque’s newly approved emergency powers ordinance may be an “overreach.” In a statement issued by Peter Simonson, executive director of the ACLU of New Mexico, the ACLU said the ordinance passed by the city council is too vague, particularly in defining a “public health emergency” and a “reasonable threat,” which the organization said could allow the mayor to invoke “sweeping powers to shut down businesses and ban people from public spaces in response, for example, to a common flu outbreak.”

Below is the full statement released by Peter Simonson, executive director of the ACLU of New Mexico:

“We recognize the very real fear and concern gripping our communities during this uncertain time and appreciate the efforts of elected officials to contain the spread of COVID-19. As we confront this pandemic, some measures, grounded in science and public health, must be taken to protect the health, safety, and civil liberties of us all.

While the emergency powers legislation approved last night by the Albuquerque City Council is an understandable reaction to the mounting disease threat, we fear that the Council overreached. Specifically, the ordinance too vaguely defines the term ‘public health emergency,’ and leaves too much discretion as to what could be considered a ‘reasonable threat,’ thereby granting the mayor sweeping powers to shut down businesses and ban people from public spaces in response, for example, to a common flu outbreak. We also have concerns about the extent of the mayor’s new powers and their duration.

In times of crisis, we become susceptible to rash legislation that grants excessive power to government. One need only look to the USA Patriot Act for an example of how the rush to address the community’s fear can result in the making of law that causes unintended consequences and widespread abuse for years to come. Once such changes make their way into our laws, they are onerous to reverse. That’s why other local governments considering legislation like Albuquerque’s should proceed with caution and concern for future generations. Down the line, administrations that are hostile to civil liberties may use this power in unintended ways.”

https://www.aclu-nm.org/en/news/aclu-nm-statement-albuquerque-city-councils-decision-broaden-mayors-power-during-public-health

https://www.abqjournal.com/1433173/aclu-albuquerques-emergency-powers-law-may-be-an-overreach.html

RIO GRANDE FOUNDATION FILES COMPLAINT ALLEGING VIOLATION OF OPEN MEETINGS ACT

The Rio Grande Foundation is an economic policy think tank located in Albuquerque, New Mexico. The Foundation is affiliated with the U.S. nationwide State Policy Network. It was founded in 2000 by Hal Stratton, a former Republican NM State representative and Republican NM Attorney General of New Mexico, and Harry Messenheimer, an economist then at George Mason University. Paul Gessing became president of the foundation in 2006.

The policy goals of The Rio Grande Foundation includes supporting tax cuts, reduced government spending, school choice, specifically by means of tax credits or school vouchers. It opposes the use of eminent domain and supports expansive private-property rights. The foundation is considered by many as a government watch dog group of city, county and state government action. The Foundation is a 501(c)(3) charitable, tax-exempt, non-profit organization.

https://riograndefoundation.org/about/

https://en.wikipedia.org/wiki/Rio_Grande_Foundation

On Monday, March 16, the Albuquerque City Council convened a meeting where the general public was not allowed to sit in the public audience area of the council chambers. The City Council Chamber doors were closed to the public, audience seats were vacant, all as a precaution to stop the spread of the coronavirus. Only members of the media, city councilors and some city workers were allowed inside during the meeting. Outside of the council chambers, APD Police were stationed to keep people out or checking people’s credentials who were trying to get in.

On March 18, the Rio Grande Foundation filed a lawsuit in New Mexico State District Court alleging that the City violated the New Mexico Open Meetings Act by holding the City Council meeting March 16, without proper notice and without conducting such according to the provisions of the Open Meetings Act thereby violating the Due Process owing to the citizens of Albuquerque. On Friday, March 13, 2020, the City Council announced that it would be holding a closed meeting on Monday, March 16, 2020 and the public was prohibited from attending.

The Open Meetings Act is clear when it says “All meetings … of a quorum of members of policy making body of any … municipality … are declared to be public meetings open to the public at all times …” There are no exceptions that would permit the city council to bar the public from a meeting such as they did.

The Open Meetings Act is equally clear when it says “No resolution, rule, regulation, ordinance or action of any board, commission, committee or other policy making body shall be valid unless taken or made at a meeting held in accordance with the requirements [the Open Meetings Act].” In other words, where the Open Meetings Act is violated , the actions of the policy making body are “void”.

The Open Meeting Act provides that any person can apply to enforce the purpose of the Open Meetings Act, by injunction, mandamus or other appropriate order. If they prevail, the court shall award costs and reasonable attorney fees to any person who is successful in bringing a court action to enforce the provisions of the Open Meetings Act. Conversly, if the public body defendant prevails it can be awarded attorneys fees. (Section 10-15-3 C, NMSA 1978)

The New Mexico Attorney General’s Office publishes a “Compliance Guide For The Open Meetings Act”, that also contains the full act and commentary with a checklist for compliance, and it can be found here:

https://www.nmag.gov/uploads/files/Publications/ComplianceGuides/Open%20Meetings%20Act%20Compliance%20Guide%202015.pdf

GOVERNOR MICHELLE LUJAN GRISHAM HOLDS PRESS CONFERENCE

It was on March 11, Governor Michelle Lujan Grisham became the first New Mexico Governor to invoke the 2003 Public Health Emergency Response Act (PHERA), issuing an Executive Order declaring a “public health emergency” giving her administration broad powers to deal with the coronavirus. The governor urged people to avoid public gatherings, sanitize common surfaces and minimize contact with other individuals, even if it means staying home from church or going out less often in order to slow transmission of the virus. During a press conference declaring the emergency, Lujan Grisham said New Mexico had 2,400 tests available to determine who has the coronavirus.

https://www.abqjournal.com/1430120/nm-has-three-confirmed-cases-of-coronavirus.html

On March 18, in a very dramatic and stark contrast to Mayor Tim Keller’s controlled video signing ceremony, Governor Mitchelle Lujan Grisham held a sweeping and very lengthy press conference in the New Mexico House Chambers. The Governor stood for at least an hour takinq questions from all media.

The Governor moved New Mexico closer to a quarantine in an attempt to keep the coronavirus under control, closing restaurants and bars to in-person dining while temporarily shutting down theaters, indoor malls, gyms and resort spas. The closures also include prohibiting public gatherings of 10 or more people and barring shoppers from hoarding supplies. The closures are the latest in an escalating series of actions ordered by the Lujan Grishham in an effort to slow the spread of the virus. In the days after New Mexico’s first case of coronavirus was announced, Lujan Grisham’s administration closed public schools for three weeks, directed most state personnel to work from home and ordered a ban on large public gatherings.

During her press conference in the state capital, the Governor had this to say:

“There are still far too many New Mexicans that are coming into contact with one another. ”

Testing in the state for the virus has escalated substantially. The number of coronavirus cases in New Mexico has reached 28 by Wednesday, March 18 when 5 additional cases were confirmed. To date, there have been about 1.2 positive cases in New Mexico for every 100 people tested. One of the new cases confirmed involved a woman who had not traveled. According to Department of Health deputy epidemiologist Chad Smelser, hat is significant because all of the state’s previous cases of COVID-19 had been attributed either directly to travel or to contact with people who were infected while traveling. Smeler opined:

“That means to us, there is spread in the community,”

https://www.abqjournal.com/1433536/gov-to-provide-update-on-covid-19.html

COMMENTARY AND ANALYSIS

It is clear that the corona virus is a very infectious disease that is spreading like a wild fire throughput the world, the United States and now New Mexico. Given the magnitude of what is happing with the corona virus, it is understandable that the Albuquerque City Council gave the Mayor expanded authority. It is also very understandable that Mayor Keller wanted to make an Emergency Declaration even before the ink was dried on the enacted legislation and the city clerk’s signature on the transmittal notice of enactment.

AVOIDING BEING QUESTIONED

The fact that Mayor Keller proclaimed and signed his “Declaration of Local State of Emergency Due to Novel Corona Virus COVID-19” on a video posted on social media and then distributed to the local new outlets raised more than a few eyebrows within the media and from political observers. The “signing ceremony” video only had Keller speaking with no public safety officials and Keller looking into the camera all alone sitting at a table and signing the declaration as he spoke. Keller’s message appeared very well rehearsed, but slick none the less.

One reason for concern is that Keller has a penchant for almost daily press conferences always surrounded by others. By not holding a press conference, Keller was able to avoid any and all questions from the media. It allowed him to completely control his message and allowed him to be very vague, yet assuring on what the city will actually be doing. He did not get into any detail as to what will now be done by the city. Absent was any information as to what the departments under his control, such as the police, fire, family community services ect., would be doing to implement his order.

Mayor Keller went out of his way in making the announcement backed up with a press release that the new legislation would not allow him to confiscate guns or halt alcohol sales. The new legislation does not allow it either. The need to address the gun and alcohol issues was the result of severe criticism and false information spread about both issues. Keller was forced to explain the primary purpose for the declaration was to give him more flexibility in freeing up financial resources to address the coronavirus threat.

SHARP CONTRAST IN LEADERSHIP STYLES

In a very dramatic move on the same day as Mayor Keller’s controlled video signing ceremony, Governor Michelle Lujan Grisham held a sweeping and very lengthy press conference in the New Mexico House Chambers to give an update on her administrations efforts. She stood for at least an hour takinq questions from all media. The leadership that the Governor exhibited was in sharp stark contrast to that which was exhibited by Mayor Tim Keller. She was poised, well versed and in command of the situation. She appeared comfortable and reassuring. Keller’s controlled video announcement on the other hand appeared to be more of a taped video audition for a television pilot where he would be playing the role of the mayor.

LEGITIMATE CONCERNS

Both the American Civil Liberties Union and the Rio Grande Foundation have raised very serious and very legitimate concerns. In time of crisis, cool heads must prevail otherwise it only makes matters worse and mistakes are made in a panic. Without a press conference, Keller could not be confronted and was able to avoid concerns raised by the ACLU and the lawsuit filed by the Rio Grande Foundation that the Council had violated the open meetings act.

It was a major mistake for the city council to rush in and enact the amendments to the “Emergency Powers Ordinance” reflecting a knee jerk reaction to the point that they ignored the “open meetings” act. It was also a mistake for Mayor Keller to sign off on the changes to the ordinance and he should have vetoed it. It is more likely than not that the District Court will find that the Albuquerque City Council did indeed violate the New Mexico Open Meetings Act, and if so, the ordinance enacted will be held void and unenforceable.

COUNCIL POWER GRAB

It is likely the Mayor under the city charter has emergency authority powers to do much of what is contained in his emergency declaration when it comes to allocating city staff and resources as necessary to address the current COVID-19 pandemic. Those inherent powers would also likely include making “emergency procurements”, likely subject to city council approval, to protect the health and safety of citizens and property.

The Emergency Powers Ordinance as amended by the City Council gives the City Council the authority to amend, cancel or extend the Mayor’s order, which amounts to nothing more than a “power grab” by the city council. The City Council can now very easily usurp the authority of the Mayor once an Emergency Declaration is proclaimed.

CONCLUSION

To those who are critical of the American Civil Liberties Union and the Rio Grande Foundation, what is important to remember is that elected officials are not above the law and our civil rights must be protected. The enactment of the Open Meetings Act by the New Mexico legislature was motivated by the belief that the democratic ideal is best served by a well-informed public. Sunshine laws generally require that public business be conducted in full public view, that the actions of public bodies be taken openly, and that the deliberations of public bodies be open to the public.

FOR A RELATED BLOG ARTICLE SEE:

March 16 City Council Meeting Violated New Mexico Open Meetings Act By Excluding Public Attendance; Criminal Penalties Provided; City Council’s Enactment of Ordinance Giving ABQ Mayor “Emergency Powers” Void