Over a year ago on January 7, 2019, Mayor Tim Keller announced the creation of the One Albuquerque Foundation. It’s a foundation formed by the city to collect donations from the general public to support city initiatives and projects. According to the city’s website page:

“… the endowment Fund raises funds in support of and to supplement measurable city priorities, including the housing voucher program for people experiencing homelessness, recruiting and retaining public safety officers, expanding opportunities for young people in Albuquerque, and equipping our workforce with the skills they need to succeed. Additional funding for these priorities will accelerate progress and help scale significant investments the City is already making go much farther, much faster.”

The web page described the fund as akin to the Mayor’s Charity Ball which raised money to be distributed to charitable efforts. It really is not, because with the Mayor’s Charity ball, the money raised was given to charitable causes, while the One Albuquerque Fund collects donations for the city and gives it to city priorities and projects, not charitable organizations or causes.

ONE ALBUQUERQUE FOUNDATION IS A 509(A)(3) SUPPORTING ORGANIZATION

On September 23, 2019, city officials estimated that the One Albuquerque Foundation could bring in as much as $400,000 annually. At the time, the city said it intended to apply donations to first responder recruitment, homelessness reduction efforts, youth programming and workforce development. Mayor Keller for his part said of the One Albuquerque Foundation:

“Every day, people in Albuquerque ask how they can step up and be part of addressing our city’s greatest challenges.”

According to news reports, the One Albuquerque Foundation is a 509(a)(3) supporting organization under the Internal Revenue (IRS) Code. Internal Revenue Service regulations state:

“A supporting organization is a charity that carries out its exempt purposes by supporting other exempt organizations, usually other public charities. … This classification is important because it is one means by which a charity can avoid classification as a private foundation, a status that is subject to a more restrictive regulatory regime.”

The One Albuquerque Foundation has no designated staff but it does have a board of directors. The board president is Charles Ashley III. A contract for fundraising has been negotiated by the board and the board makes necessary staffing decisions according to city spokeswoman Jessie Damazyn.

The city says the foundation complies with the Inspection of Public Records Act (IPRA), New Mexico’s sunshine law. Some local foundations that exist solely to support public entities do not adhered to IPRA. The University of New Mexico Foundation is the best example. According to city spokeswoman Jessie Damazyn, the foundation “will comply with IPRA at the direction of Mayor Keller.”

https://www.krqe.com/news/albuquerque-metro/one-albuquerque-fund-raises-17000-to-help-the-homeless/

https://www.abqjournal.com/1369627/donations-support-police-retention-recruitment.html

DONATIONS ANNOUNCED

On January 6, 2020, a year from the date it was created, Mayor Tim Keller held a press conference at a Downtown restaurant attended by city officials and members of the business community to formally launch the “One Albuquerque Fund”. Mayor Keller announced that since the One Albuquerque Fund was announced, the fund has raised $200,000. According to One Albuquerque Foundation president Charles Ashley III, none of the money currently in the fund came from diverting money from existing city programs.

During the press conference, the foundation presented checks of $5,000 to fund APD police recruitment efforts and $20,000 to provide additional housing vouchers for the homeless. The foundation’s board of directors has identified four areas that it wants to provide funding to:

1. Police recruitment
2. Job training
3. Homeless and
4. Youth initiatives

During the press conference Mayor Tim Keller had this to say about the One Albuquerque Foundation:

“[This is] the best way for the city to partner with businesses, individuals, nonprofits and foundations, because we’re all in this together as One Albuquerque. [It allows the city to better] facilitate public-private partnerships to deal with some of our biggest issues.”

https://www.abqjournal.com/1407588/new-foundation-will-support-city-initiatives.html

35 ENTITIES AND INDIVIDUALS DONATE $248,250 TO KELER’S FOUNDATION

On February 7, the Albuquerque Journal reported that the Albuquerque One Foundation has raised nearly $250,000. Records provided by the city pursuant to a request for public records show most of the money is not coming from individual citizens but rather a cross section of well-known businesses and individuals. The donations that make up the $250,000 are not small donations from people but are in the thousands made by a few.

https://www.abqjournal.com/1421506/familiar-businesses-back-abq-foundation.html

All told, 35 entities and individuals donated $248,250 to the fund. A breakdown of the larger donations made are as follows:

Garcia Subaru: $50,000. This is the single largest donation. Garcia Subaru is owned by the Garcia family, which also own several car dealerships, including Honda, Volkswagen, Infiniti, Cadillac, Mercedes, Jaguar, Land Rover and Alfa Romeo. The Garcia family also own significant parcels of commercial real estate in the Old Town Area and has a stake in the New Mexico United professional soccer team, with the city currently looking for a new site for a soccer stadium.

Comcast: $10,000 Comcast is the city’s cable contract provider.

New Mexico Gas Co.: $10,000. New Mexico Gas Co. has a utility franchise agreement that is subject to renewal with the city and pays a franchise fee to the city.

Blue Shield of New Mexico: $10,000. Blue Shield in the past has been a health care provider insurance carrier to city hall employees.

Netflix: $10,000. In 2018, Mayor Keller signed off on a $4.5 million city economic incentive package to assist NETFLEX in its purchase of Albuquerque Studios.

https://www.abqjournal.com/1239976/mayor-signs-off-on-netflix-deal.html

Golden Pride Chicken: $20,000, owners Larry and Dorothy Rainosek.

Frontier Restaurant: $5,000, owners Larry and Dorothy Rainosek.

Restaurants such as Golden Pride and the Frontier Restaurant must maintain a license to do business with the city and are subject to the zoning and code enforcement regulations including health code inspections.

Fresquez Concessions: $20,000. Fresquez Concessions has the current contract to run all the food and beverage concessions at the Albuquerque International Sunport.

Bradbury Stamm Construction: $10,000. Braburry and Stamm was the main general contractor for the $130,000,000 Art Bus Project and consistently bids on city construction contracts.

Property management company RMCI: $10,000. RMCI currently lists commercial properties in Albuquerque for sale.

Only six people made donations under their individual names. Those individuals making donations include:

Doug Brown, the president of the University of New Mexico Board of Regents: $5,000

Gary Goodman, the real estate developer behind Winrock Town Center: $5,000. Winrock Town Center is being developed under a Tax Increment District (TID) with all construction and development subject to City Planning Department review and approval

Nick Kapnison, owner of Nick and Jimmy’s Restaurant, Mikinos Creek Restaurant and El Patron Mexican Restaurant: $3,350.

Restaurants must maintain a license to do business with the city and are subject to the zoning and code enforcement regulations including health code inspections.

MAYOR KELLER PERSONALLY INVOLVED WITH SOLICITING DONATIONS

Mayoral spokeswoman Jessie Damazyn confirmed that many contributions made to the One Albuquerque Foundation came in response to face-to-face requests made by Mayor Tim Keller himself to meet with donors. Damazyn did not say exactly how many of the existing donors Keller met with personally to solicit contributions, but said that he had talked with “nearly all” of those on the list of 35 as well as many others “in contexts from coffees to community events to speaking engagements about how they can play a role from volunteering to donating.”

Golden Pride and Frontier owner Larry Rainosek said he donated the $25,000 after a meeting with Keller that the mayor’s office had arranged with him. Rainosek said he did not think his contribution bought influence with the mayor. However, he said the meeting about the foundation that eventually cost $25,000 gave him a long-awaited opportunity to air his grievances about Albuquerque Rapid Transit (ART) project and some changes he would like to see in the future.

Rainosack was a strong opponent of the ART Bus project and made it known that the ART Bus project was a disaster to his Frontier Restaurant and destroyed the character of Route 66. Rainosek is a highly respected and successful businessman. He should be entitled to express his opinion just like any other citizen without having to make any kind of donation requested by the Mayor, but none the less he obviously felt compelled to make the donation especially when he said:

“[Mayor Keller] had his agenda … and I had mine. … We always try to do things that will benefit the city and community”.

OVERSIGHT DEPARTMENTS FOR CORRUPTION

There are two primary, independent departments that function independent from the Mayor’s Office and City Council that that are primarily tasked for investigation of misconduct within city hall: the City Office of Independent Audit and the Office of Inspector General. Both can initiate investigations on their own. The City of Albuquerque Office of Independent Audits is designed to promote transparency, accountability, efficiency and effectiveness of City government. The responsibilities of the office of Inspector General include:

• Investigation of suspected corrupt City elected and appointed leaders
• Investigation of employees suspected of misconduct
• Investigations of suspected fraud, waste, mismanagement and abuse

https://www.cabq.gov/inspectorgeneral

https://www.cabq.gov/audit

COMMENTARY AND ANALYSIS

The propriety of Mayor Tim Keller scheduling meetings to solicit private denotations for his charitable foundation from those who do business with the city or who interacts with city departments and who want to talk with him is so very, very wrong on so many levels with respect to ethical conduct and the appearance of impropriety. The solicitations by Mayor Keller during city business smacks of “pay to play” at worst and at best gives the appearance of impropriety and the exertion of political influence to compel donations from those who do business with the City of Albuquerque, either by contract or being regulated by city departments.

Donations of $50,000, $20,000, $10,000 and $5,000 as were made in the political world more likely than not come with the expectations of at least access to the elected official or a candidate and even commitments to be performed. What is very disturbing is that Keller had his office arranged the meetings, had the private conversations, but nothing is disclosed as to what was discussed, how the donation amounts were determined nor what commitments, if any were made, by Keller to the donors or the donors to Keller. On November 5, election night, Keller made it known on an election night radio program he is running for a second term in 2021. It is reasonable to assume that Keller when he solicited the donors to his foundation also solicited their support of him for his reelection bid and even donate to his campaign when the time was right. Arm twisting to make donations, even with Mayor Keller’s smile and knack for pleasant conversation and likeability, is still arm twisting and influence peddling.

The biggest argument that is being made publicly for the creation of the One Albuquerque Fund by Mayor Keller is that institutions such as the Albuquerque Public Schools, Central New Mexico Community College and the University of New Mexico all have their own foundations to support those entities and the City of Albuquerque should have its own foundation. The argument is bogus. The City has unilateral taxing authority that can be enacted by the City Council whenever it chooses while all the other institutions must rely upon the New Mexico Legislature for their funding. It is highly doubtful the One Albuquerque foundation is a 509(a)(3) supporting organization because the city is not a charity that carries out its exempt purposes by supporting other exempt organizations or other public charities. It’s a government entity responsible for essential services.

It is difficult to understand Mayor Keller’s motivation with One Albuquerque Foundation when he says “[This is] the best way for the city to partner with businesses, individuals, nonprofits and foundations … .” Simply put, no its not. The Albuquerque Community Foundation has been in existence for decades that is doing many of the things being suggested for One Albuquerque. Charitable donations from the general public are difficult enough as it is for private charitable organizations such as the United Way and the Albuquerque Community Foundation and now they have to compete with the Mayor’s One Albuquerque Foundation so he can say “we are all in this together”. The “United Way” charitable foundation sends the very same message and at one time city hall employees were allowed to participate in “United Way” fundraising and it was discontinued by Keller’s predecessor.

It is a pathetic practice for any government entity and its elected Mayor to solicit donations from the general public to carry out it duties and responsibilities to the public, especially when it has already allocated millions to specific causes in a $1.1 Billion budget such as police recruitment, job training and vouchers to provide temporary housing for the homeless. The City of Albuquerque is bloated not only with a $1.1 Billion Budget, but $55 Million Tax Increase revenues from a 2019 enacted tax that Keller agreed to breaking a his campaign promise to raise taxes without a public vote, a $35 Million Orphan Month Windfall as well as $30.5 million in lodger tax bond revenues. Mayor Keller’s approach is to ask for even more funding for his charitable foundation. Such a request reflects a total disconnect from reality. It reflects management negligence and an inability to live within one means and always demanding more.

To be perfectly blunt, Mayor Tim Keller needs to knock it off with his solicitation of donations for his charitable foundation from people who do business with the city, disavow any connection with it and step back and have a clean break from the foundation. Further, the Offices of General Counsel and Independent Audit need to review the fund-raising activities of the Mayor for the foundation and determine if his efforts were unethical and the propriety of the Foundation. At a bare minimum, all 35 donors need to be interviewed to determine what promises and commitments were made and if done in the context of any re election bid.

In the eyes of many city hall insiders, observers and and a few city hall confidential sources, Keller engaged in unethical conduct with his Charitable Foundation, but his top Administration Officials have gone along with it without any objection because he is “the Mayor”. For Keller to continue with the solicitation of donations by him will only make things worse and tarnish his reputation even further and no doubt will become an issue as he seeks a second term.

_______________________________________

POSTSCRIPT

On Thursday, February 20, the Albuquerque Journal published the following editorial:

Editorial Headline: ABQ may need a foundation, but not fundraiser in chief

“The One Albuquerque Fund sounds like a good idea. Launched last year by the city, it is designed to attract additional resources “in support of and to supplement city priorities.” Some examples: spending on police recruiting, housing vouchers and workforce development.

If Keller wants the One Albuquerque Fund to succeed and prosper, with no political taint, he can’t be fundraiser in chief as well as mayor. He needs to remove himself from the fundraising process and let the foundation rise or fall on the work it does.”

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

https://www.abqjournal.com/1422529/abq-may-need-a-foundation-but-not-fundraiser-in-chief.html

COMMENTARY

The Albuquerque Journal editorial was a lot more diplomatic than I was in my blog article. As far as I am concerned the Journal let Keller off way too easy. My reasons are clear, Keller made a reputation as State Auditor to run for Mayor on the carefully cultivated image of being a crusader against “waste, fraud and abuse” of public money. Charitable donations are no different. To be perfectly blunt, Mayor Tim Keller needs to knock it off with his solicitation of donations for his charitable foundation from people who do business with the city, disavow any connection with it and step back and have a clean break from the foundation. Further, the Offices of General Counsel and Independent Audit need to review the fund-raising activities of the Mayor for the foundation and determine if his efforts were unethical and the propriety of the Foundation. At a bare minimum, all 35 donors need to be interviewed to determine what promises and commitments were made and if done in the context of any reelection bid.

The 2nd, 4th, and 14th Amendments to the United States Constitution are part of the Bill of Rights. All three are often cited by gun rights advocate’s and fanatics as prohibiting any meaningful control legislation. The Amendments are as follows:

The 2nd to the United States provides in part:

“… the right of the people to keep and bear Arms, shall not be infringed.”

The 4th Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things … “

The 14th Amendment provides:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

2020 NEW MEXICO LEGISLATURE ENACTS “RED FLAG” LAW

On February 14, after 3 long hours of emotional debate on the House Floor, the New Mexico House of Representatives passed the “red flag law” on a 39-31 vote. 17 states have already adopted “red-flag” laws, with 13 states passing them since the shootings at the high school in Parkland, Fla. The red flag bill was the most controversial legislation considered during the 2020 session. Much of the House floor debate fell along party lines with Democrats holding a 46-24 edge in the chamber. Virtually all 24 Republicans in the House voted against the bill. As Republicans cast their votes, they held up copies of the Constitution. Democrats should have held up copies of “death certificates” to symbolize victims of New Mexico domestic gun violence.

Senate Bill 5 establishes the Extreme Risk Firearm Protection Order Act. It will allow for the court-ordered seizure of guns from individuals deemed an imminent danger to themselves or others. Under the legislation, it allows law enforcement officers, acting on information provided by a relative, school administrator or employer, to seek a court order prohibiting someone from having firearms. Exclusive authority is given to law enforcement to make the decision to file a petition, but the petition must be based on whether there’s probable cause to believe the individual “poses a significant danger of causing imminent personal injury to self or others.” A court could order the temporary seizure of the person’s firearms for up to 10 days and until a hearing could be held. After a hearing, the ban could be extended one year. The original version of the bill would have allowed family and others to file the petitions, but that was taken out as a compromise to those that claimed that it would result in abuse.

Senate Bill 5 is a natural extension of the 2019 New Mexico Legislature passage of Senate Bill 328 which prohibits gun possession by someone who’s subject to an order of protection under the Family Violence Protection Act. Under the enacted legislation domestic abusers must surrender their firearms to law enforcement. The gun possession prohibition also applies to people convicted of other crimes.

GOVERNOR’S REACTION

Senate Bill 5 was a major priority of the Governor Michelle Lujan Grisham. She had the exclusive authority to place it on the agenda for the 30-day session. Soon after passage, Governor Michelle Lujan Grisham announced she will sign it into law once it reaches her desk. The Governor had this to say about passage in a statement:

“This is a tremendous victory for New Mexicans’ public safety. This tool will empower law enforcement to keep our communities safer. It will minimize the plain and unacceptable risks of gun violence and suicide all across New Mexico.”

OPPOSITION VOICED

Thirty of the state’s 33 elected sheriffs strenuously opposed the bill. Many of the sheriffs are now threatening to refuse to enforce the law. However, the new law also provides that law enforcement officers will not be immune to liability if they failed to carry out their duties under the Extreme Risk Firearm Protection Order Act or other state laws.

The Hobbs News-Sun reported Lea County Sheriff Corey Helton told an audience at a Eunice City Hall meeting that he is ready to go to jail, if necessary, for refusal to enforce the law. Helton said he’d be a one-term sheriff because a judge would place him under arrest. But he said he’d be able to sleep at night for standing his ground. Sheriff Helton believes the law is unconstitutional, violating the Second Amendment right to bear arms and 14th Amendment which prohibits unreasonable searches and seizures.

https://www.santafenewmexican.com/ap/new-mexico-sheriff-vows-to-go-to-jail-over-proposed/article_522a69ea-af0b-58fb-872b-5226976b5eda.html

Republican lawmakers were quick to denounce the legislation as a breach of gun owners’ constitutional rights. Republican lawmakers raised the prospect of deadly confrontations between families and police officers who show up to seize firearms.

Representative James Strickler, R-Farmington, put it this way:

“I’m just afraid we’re going to have a dead police officer or a dead mom or dad who feel like their rights were infringed on.”

State Representative Cathrynn Brown, R-Carlsbad had this to say about the bill:

“[The bill] was probably written by a committee of people who don’t know how the real world works.”

https://www.abqjournal.com/1420559/legislators-send-firearms-bill-to-lujan-grisham.html

https://www.kob.com/new-mexico-news/proposed-red-flaw-law-passes-nm-house-heads-to-governors-desk/5644417/

ENACTED 2019 GUN CONTROL MEASURES

On March 8, 2019, Governor Michelle Lujan Grisham signed into law Senate Bill 8 (SB 8) enacted by the 2019 Legislature which requires background checks for guns sold privately and at gun shows. Debate on the legislation was hot and heavy, but SB 8 past the Senate on a 22-20 vote and passed the House 42-27 vote. With the Governor’s signature Senate Bill 8 become law effective on July 1, 2019. Governor Michelle Lujan Grisham also signed Senate Bill 328 which prohibits gun possession by someone who’s subject to an order of protection under the Family Violence Protection Act which prohibits the possession of firearms by domestic abusers.

BACKGROUND CHECK MANDATES OF NEW STATE LAW

Under the enacted 2019 enacted legislation, private gun sales must go through a federal firearms licensee to do a federal background check.

https://www.krqe.com/news/politics-government/gov-lujan-grisham-signs-gun-background-check-bill-into-law/1836222192

Licensed gun dealers are already required to do federal background checks on gun sales. The new state law requires a background check before any gun sale, including between two individuals.

There are two exceptions: sales between two close family members and sales between law enforcement officials.

The new legislation plugs a “loophole” that allows two individuals to arrange a sale on their own to avoid a background check. Under the law passed, people who want to sell a gun they own must arrange for a licensed dealer to do the background check for them before they make the sale.

Licensed gun dealers charge up to $35 for federal background checks. Supporters argue the background check makes it more difficult for criminals or others prohibited from having a weapon and obtain a gun. Opponents argued criminals will ignore the law arguing background checks are nothing more than a financial burden and annoyance to law-abiding gun owners who are exercising their constitutional rights under the Second Amendment and their right to bear arms.

LAW ENFORCEMENT OPPOSITION

During both the 2019 and 2020 legislative sessions, elected county sheriff’s across New Mexico strenuously objected to the legislation that eventually was enacted. Elected sheriffs mounted a strong lobbying campaign to defeat passage to the point of appearing before the legislative committees in mass, fully uniformed and armed to make their point of disdain for the legislation.

The County Sheriffs repeatedly spoke out against the gun legislation during legislative committee hearings. Some elected sheriffs testified that they simply would not enforce the legislation if it became law. 28 of New Mexico’s counties and municipalities in the state have passed “Second Amendment Sanctuary” ordinances in defiance to enacted legislative gun control measures.

https://bearingarms.com/tom-k/2019/03/22/nm-sec-state-rejects-gop-petition-put-gun-control-ballot/

NEW MEXICO ATTORNEY GENERAL ISSUES WARNING

Attorney General Hector Balderas is the chief law enforcement official for the state of New Mexico. The Attorney General chairs the law enforcement board that issues law enforcement certifications to virtually every law enforcement sworn officer in the state. Last year, County Sheriffs threats not to enforce background checks became so pervasive that on April 4, 2019, Balderas sent a strongly worded letter of warning to virtually all sheriffs and police chiefs throughout New Mexico telling them that they risk legal liability if they refuse to enforce the new background checks law for gun sales.

https://www.abqjournal.com/1300209/ag-directs-sheriffs-chiefs-to-enforce-gun-law.html

Balderas advised them of their legal obligation to enforce law and its requirements outlined regardless of whether they agree with the legislation. In his letter, Balderas acknowledged that sheriffs and police chiefs have discretion over how to run their agencies. However, Balderas reminded the law enforcement command staff that personal political opinions and law enforcement discretion:

“do not absolve us of our duty to enforce validly enacted laws. … As law enforcement officials we do not have the freedom to pick and choose which state laws we enforce. … In short, the taxpayers of your city or county assume the financial risk of your decision to impose your personal views over the law. … [Discretion] cannot subvert the rule of law. All New Mexicans, including public [law enforcement] officials, are equally subject to the law.”

Balderas wrote a police chief or sheriff who refuses to enforce the law could be held liable if a gun sale results in a prohibited person obtaining a firearm and doing harm.

On April 5, 2019, Democrat Cibola County Sheriff Tony Mace, who is also president of the New Mexico Sheriffs’ Association, objected to Attorney General Balderas letter saying law enforcement officers have the discretion in how they enforce the law and Deputy Sheriffs can issue a warning citation without charging.

Sheriff Mace is quoted as saying:

“[Sheriff’s are] elected by the people in our communities and that’s what we’re looking at – what do the people in our communities want?”

Elected Sheriff’s cannot “pick and choose” the laws they like as AG Balderas correctly points out. It is downright laughable that Sheriff Mace compares mandatory background checks to issuing a warning citation without charging after pulling over a speeding driver. You cannot instruct law enforcement to use “warning citations” with the intent to subvert the law.

NEW MEXICO’S SUICIDE RATE

Most gun deaths in New Mexico are a result of suicide and therefore the state’s suicide rate is a critical part of the debate when it comes to a red flag law. Overall, the state suicide rate is 21.9 deaths per 100,000 people, which is more than 50% higher than the national average. Ten counties in New Mexico that are largely rural areas of the state have suicide rates at least twice the national average, which is 14 suicide deaths per 100,000 people. Studies in states that have “red flag laws” and that have “risk-based firearm seizure laws” were associated with reduced suicide rates.

NEW MEXICO’S DOMESTIC VIOLENCE RATE

On September 16, 2017, according to an annual study published by the Violence Policy Center, it was reported women are more likely to be killed by men in New Mexico than nearly any other states.

http://www.santafenewmexican.com/news/local_news/new-mexico-s-rate-of-women-killed-by-men-among/article_eb7e4a2c-273d-5eb6-8007-e5936639b64f.html

The study found the state has the 10th-highest rate of women killed by men, marking the third straight year New Mexico had appeared toward the top of the list, while New Mexico’s overall homicide rate ranked lower.

Current statistics are 1 in 3 New Mexico women will experience domestic violence in thier lifetime. 18,000 domestic violence calls were made in 2017 with 8,000 calls made in Albuquerque. 30% of the calls had a child as a witness. Nationwide 3 women are killed daily from domestic violence.

New Mexico has ranked among the top 10 states with the highest rates of women killed by men during the last decade. The Violence Policy Center promotes gun control and found that each state at the top of the list of women killed by men have a high rate of firearm ownership which no doubt includes New Mexico’s gun culture.

COMMENTARY AND ANALYSIS

It is the likes of Republican State Representatives Cathryn Brown and James Strickler, and Republican Lea County Sheriff Corey Helton Democrat Cibola County Sheriff Tony Mace who do not know “how the real-world works”, let alone how the Bill of Rights and United States Constitution work. Brown, Strickler, Helton, Mace show a serious ignorance of the law. All 4 have a warped interpretation of constitutional rights that have rotted out all of their common sense and prevent any reasoning with them which is the mentality of gun rights fanatics. The 2nd, 4th and 14th Amendments, often cited by gun fanatics, are not absolute rights. Each separately and together have limitations and exceptions, are subject to court interpretations and are not black and white words. The reality is that there are many limitations under the law and to our constitutional rights guaranteed by the 2nd, 4th and 14th amendments.

In the “real world” of domestic violence, mass shootings, mental illness, and suicide, those who use guns are more interested in doing harm to others or themselves and could not careless about their constitutional rights. In the “real world”, many would say law enforcement violate constitutional rights whenever they sign off on a search warrant based on probable cause to seize private property. Search warrants based on probable cause are used daily as an effective tool to gather evidence of a crime. Extreme Risk Protection Orders require probable cause that a person poses and immediate threat to themselves or others before guns can be seized and for that reason are similar to search warrants relied upon by law enforcement.

What I learned as the Bernalillo County Chief Deputy District Attorney is that Albuquerque’s dirty little secret is that domestic violence is the number-one reason why a woman is admitted to the emergency room of the University of New Mexico Hospital. Statics in Albuquerque showed that after about the 10th or 11th time there is a call out of the Albuquerque Police Department to a home for domestic violence, it is usually to pick a woman up in a body bag. This fact makes it very troubling to understand why any elected sheriff would refuse to enforce New Mexico’s newly enacted red flag law and refuse to assist anyone who is at risk for great bodily harm in securing an Extreme Risk Firearm Protection Order .

ELECTED SHERIFF’S WHO REFUSE TO ENFORCE NEW RED FLAG LAW NEED TO RESIGN IMMEDIATELY

Given New Mexico’s high suicide rates, domestic violence killings with guns and the threat of mass shootings, it is shameful that elected New Mexico county sheriffs are far more concerned about “second amendment rights” that allows almost anyone, including those who pose a harm to themselves and others, to have a firearm of their choosing. The elected sheriff’s hide behind the 2nd Amendment so as not to protect or enforce the rights of others who have the rights of “life, liberty and the pursuit of happiness” just as much guaranteed under the constitution as the right to bear arms.

The elected sheriffs who oppose the meaningful gun control legislation that the red flag law represents ignore their duty and responsibilities “to serve and protect the general public” that elected them. They choose to promote their own fanatical “pro-gun” political philosophy and their own personal interpretation of the law and constitutional rights. New Mexico’s Domestic Violence cases make up a large share of violent crime cases. The public’s safety and enactment of laws for the protection of those that easily become victims of gun violence, even by family members, should be law enforcement’s priority, not enforcing only those laws they feel that conform to their own “pro-gun” philosophy. The enactment of laws is the responsibility of the legislature, not law enforcement. The meaning and interpretation of the laws enacted is the responsibility of the court’s, and not of law enforcement.

Elected County Sheriffs have an ethical and legal obligation to honor their oaths of office. They cannot pick and choose what laws the agree with and want to enforce.
Elected Sheriffs who refuse to enforce the law are also asking taxpayers to assume the financial risk of their decision to impose their personal views over the law. There is a real possibility of a relative of a dead crime victim in a domestic violence case will sue a county sheriff for negligence and wrongful death when that sheriff refuses to seek a protective order asked for by the crime victim to seize guns where there was enough probable cause evidence to secure it, but the sheriff declines saying such protective orders based on probable cause violate the constitution.

Any elected County Sheriff who refuses to enforce the new red flag law should resign immediately and the county commissions need to appoint law enforcement who will respect their oath of office and set aside political philosophy. Such a refusal should justify the Attorney General to send letters suspending law enforcement certifications.

Governor Michelle Lujan Grisham needs to sign the new red flag law as soon as possible making it law and send copies of the new law to all 30 elected County Sheriffs. The letter should tell them they have the legal obligation to enforce the red flag law and if they refuse to enforce the law, they need to resign their position. Too many have died in New Mexico from suicides and domestic violence to the point that “gun rights fanaticism” that places gun rights over victims has no place in law enforcement.

For a related blog article see:

https://www.petedinelli.com/2019/04/08/i-will-not-enforce-the-law-admission-of-negligence-by-law-enforcement/

With just a few days remaining of the 2020 New Mexico State Legislature’s 30 day session, the legislature has still not taken final action on the primary purpose of the session: enactment of the 2020-2021 budget that will take effect July 1, 2020. The session ends February 20, and the Senate has yet to adopt the House approved version of the budget and still needs to weigh other financial legislation in the coming days. According to Senator John Arthur Smith, D-Deming, the powerful chairman of the Senate Finance Committee, the Senate will need to make about $160 million in cuts to ensure New Mexico maintains its targeted level of financial reserves.

The budget bill passed by the House and under consideration by the Senate Finance Committee calls for about $7.6 billion in ongoing spending, an increase of roughly 7.5% over this year’s spending levels. The House Bill would leave the state with reserves of 26%, one percentage point higher than the 25% target, according to nonpartisan legislative analysts. According to Senator Smith other pieces of legislation moving through the Legislature would also have budgetary impacts, such as potential changes to the tax code and stand-alone spending measures which will result in the 25% target being exceeded. As a result, Smith said that the Senate will need to trim about $160 million in proposed spending to put the state on track for the 25% reserves

https://www.abqjournal.com/1420474/senator-warns-of-budget-feeding-frenzy.html

With the enactment of a state budget going to the wire with so many cuts being discussed, its more likely that not one of the first cuts that will be made by the Senate Appropriations Committee is to slash the City of Albuquerque’s request for State Funding.

KELLER ASKS FOR $30 MILLION FROM STATE

During a press conference held on November 19, Mayor Keller announced that he had asked New Mexico Governor Michelle Lujan Grisham and the New Mexico State Legislature for $30 million in funding during the upcoming 2020 legislative session to “modernize” APD. Keller said $20 million dollars of that will go to changing the way police file reports and produce crime stats and how they connect all the crime-fighting data into one.

The $20 million in upgrades in the city’s existing crime-fighting technology being requested by the Mayor Keller from the New Mexico Legislature includes upgrades to the Albuquerque Police Departments (APD) computer and records systems. The systems are used by APD police in their assigned squad cars and the mobile crime scene units. It also includes funding for new technology in gunshot detection devices and license plate scanners.

Major upgrade funding is being sought for APD’s 911 dispatching capabilities to include Global Positioning System (GPS). As it exists today, when a call is made to 911, the answering dispatcher will dispatch a police officer usually based on availability regardless of how far away the officer is.

Each time a 911 call is answered by dispatch, the call can get routed through the Real Time Crime Center (RTCC) where upon RTCC analysts work through different records systems to find out as much background about who the call is made about so that the information can be relayed to the dispatched police officer. Such background information is critical to the police officer to know what they may be dealing with, including identifying a violent offender or a person who is mentally ill.
Keller said:

“We’re dealing with systems that are decades old and older. It’s a situation that is holding back everything that we are trying to do as a department. It’s essentially a deferred investment that I wish we would have made a decade ago and that we have to make now.”

The other $10 million would go to the city’s new violence intervention program.

https://www.koat.com/article/mayor-claims-he-has-plan-to-address-albuquerques-crime-crisis/29897479

https://www.koat.com/article/city-leaders-announce-new-crime-fighting-measures/29863717

VIP PROGRAM EXPLAINED

On November 22, Mayor Tim Keller announced what he called a “new initiative” to target violent offenders called “Violence Intervention Plan” (VIP). The VIP initiative is in response to the city’s recent murders resulting in the city tying the all-time record of homicides at 72 in one year. By December 30, the city had a new all-time record of 82 homicides in one year. Mayor Keller proclaimed the VIP is a “partnership system” that includes law enforcement, prosecutors and social service and community provides to reduce violent crime. According to officials, the city had been working for months on a Violence Intervention Program. The VIP program is modeled after the “Ceasefire” Program in Oakland, California, which targets gang-related violence, but VIP will include domestic violence.

According to Mayor Keller:

“This is a first-of-its kind program for Albuquerque that pairs law enforcement and public health working together to put the drivers of violent crime behind bars while creating paths away from violence for those who are not yet drawn into the cycle of violence or are looking for a way out. Our partners in the program include the New Mexico Office of the Attorney General, Bernalillo County District Attorney, New Mexico State Police, Probation and Parole, ATF, DEA, FBI, US Marshal, US Attorney, Family & Community Services, Bernalillo County Community Health Council and more.”

Mayor Keller acknowledged the “VIP” program is modelled after other such programs in other cities and that APD has been working on the program since spring. According to Keller, in other cities, it has brought down violent crime rates by as much as 10%.

Chief Administrative Officer Sarita Nair for her part said that APD started their research at the John Jay College of Criminal Justice in New York and visited Oakland, which has implemented “Operation Ceasefire”, a data driven crime fighting strategy to coordinate law enforcement, social services and the community to reduce gun and gang violence. According to Nair, the city’s VIP program will be looking at Domestic Violence and said:

“There is a big component of gang violence here but if we focus on that we’re not going to change. We need to make it broader than that.”

https://www.abqjournal.com/1394576/city-launches-violence-intervention-program.html

VIP FOUR MAJOR AREAS OF CONCENTRATION

There are 4 major components of the VIP program:

LAW ENFORCEMENT:

APD will be “restructured” to create a first-of-its-kind “Violence Intervention Division” with its own Commander. The division is designed to make cross-functional partnership as productive as possible. The goal is to remove the barriers between investigative units, increase coordination among field officers, violent crime, undercover detectives, the intelligence unit, forensic techs, crime analysts and victim advocates to fight violent crime. Law enforcement partners on the program include the State Police, Probation and Parole, ATF, DEA, FBI, US Marshal and Homeland Security. (EDITORS NOTE: There is absolutely nothing new about this component of VIP. It is standard practice for all of these agencies to coordinate their activities and many times participate in joint initiatives depending on funding for tactical plans.)

PROSECUTION PARTNERS:

Prosecutors from all systems including the Attorney General, District Attorney, US Attorney and Office of Superintendent of Insurance will collaborate to share information and make sure cases are going to the appropriate teams and courts. Prosecutors and law enforcement partners will also work with analysts from APD’s Real Time Crime Center and the NIBIN and Gun Violence Reduction Units to review shooting incidents on a bi-weekly basis. (EDITORS NOTE: There is absolutely nothing new about this component of VIP. The most recent example is the very successful coordinated auto theft initiative with APD, BCSO, the State Police, the Superintendent of Insurance and the DA’s Office to combat auto thefts.)

SOCIAL SERVICES:

The City has always funded social services aimed at violence reduction. However, for the first time Family and Community Services is specifically working with the community to identify the most effective evidence-based violence reduction strategies, and requiring providers to work together in the Violence Intervention Program. The administration created a Deputy Director of Health position held by a clinical social worker.

COMMUNITY PARTNERS

The City will reach out to community partners, including the Bernalillo County Community Health Council, that are dealing with the causes and effects of violent crime to work together on this program. A technical advisor will lead partnership-based violence reduction efforts to improve police-community trust and sustain the strategy over time.”

https://www.kob.com/albuquerque-news/mayor-keller-touts-new-plan-to-tackle-violent-crime/5561150/?cat=500

LEGISLATURE FUNDING IN DOUBT

On February 5, it was reported that the request for the $10 million in VIP funding by the city was made too late. The Keller Administration is now worried the funding won’t be included in the final $7.6 billion budget that passed the House. The funding can still be included in the final version of the bill that passes the Senate, but there is no guarantee of that happening.

State Representative Daymon Ely, D-Corrales, a sponsor of the bill had this to say:

“The problem is on the money request; it may or may not be too late,” “I’m hoping we can get there, but I’m not optimistic. It wasn’t a delay in the legislative process. … It’s one of those things. I just think we’re all going to have to get better at working partnerships between local and state entities, and even among the legislators themselves.”

State Representative Gail Chasey, D-Albuquerque, another sponsor of that bill, echoed Ely’s concerns when she said:

“I don’t fault the city for this, because they’re constantly looking for solutions. … We probably needed to have started talking about this as a funding priority in the summertime, at the latest.”

Mayor Tim Keller, a former state senator, said he is not concerned and had this to say:

“There’s a long road ahead. … We’re running it as a stand-alone bill because we want to educate people on how important it is and what it is. Those bills usually get rolled in as the budget leaves the House or in the end as it leaves the Senate. That’s the way we’ll know if we’re going to get that funding or not.”

https://www.abqjournal.com/1417519/statewide-violence-intervention-program-awaits-funding.html

COMMENTARY AND ANALYSIS

From the all the news account, or lack thereof, nothing has been reported on the status of the city’s $30 million request in funding. Mayor Keller appears not to be that concerned about securing the $10 million from the legislature for his VIP program, at least not as concerned as the sponsors of the bill State Representatives Daymon Ely and Gail Chasey. No doubt its because even if the funding fails, Keller knows the City of Albuquerque has an operating budget of $1.1 billion for the fiscal year that began July 1, 2019 and ends on June 30, 2020. It was the first time in city history that the city operating budget exceed the $1 Billion figure. The 2019-2020 budget represented an overall 11% increase in spending over the previous year.

In May, 2018, 5 months after he assumed office, Mayor Tim Keller also signed into law a gross receipt sales tax increase enacted by the City Council. 70% of the tax was dedicated to public safety. The tax raises $55 million a year in revenue. Keller broke a campaign promise not to raise taxes, even for public safety, without a public vote. The rational for the tax increase was that the city was faced with a $40 million dollar deficit. The deficit never materialized and the tax increase was not repealed.

Mayor Keller has been given everything he has wanted for public safety and then some by the Albuquerque city Council. Its likely the council will again give him more for the VIP Program. On April 1, 2020, Mayor Keller will be submitting his proposed 2020-2021 budget that must be approved after public hearings by the City Council. Gross receipts tax revenues have in fact increased over the last year and it is expected that there will be yet another increase in the city budget and it will exceed last years budget of $1.1 Billion. The City could very easily absorb the loss of $10 million or even the full $30 million being requested from the legislature and that is something the city should have done in the first place.

On February 12, the New Mexico State Senate passed Senate Bill 72 (SB 72) commonly referred to as the PERA Pension Reform Bill on a 25-15 vote after a mere hour of debate. The Senate Finance Committee previously voted to recommend passage by a vote of 10-2, but only after hours of testimony that was mired in acrimony. SB 72 is aimed at erasing the state pension system’s $6.6 billion unfunded liability aimed at turning around New Mexico’s chronically underfunded retirement system for police, firefighters and other public employees. Senate Bill 72 was passed, but the vote did not fall along party lines with Republicans and Democrats taking both sides. The proposal now heads to the House for approval.

The legislation would require government agencies and their employees to pay more into the pension system. It also substantially revises how retirees’ annual cost-of-living adjustments are calculated. The most controversial provision of the legislation is that it will freeze many retirees cost of living adjustments (COLA) for two years and then move to a “profit-sharing” model with annual raises fluctuating from 0.5% to 3%, depending on investment returns and the financial health of the pension fund. Most retirees now get a 2% raise each year. SB 72 includes an injection of $76 million to help improve the financial health of the pension funds.

The proposal was amended on the Senate floor to leave in place a cap on how much employees can receive in retirement. State workers can now retire at 90% of their final average salaries. A previous version of SB 72 had called for lifting the cap which would have allowed people to retire with pensions exceeding their annual salaries, if they worked long enough. But senators on Tuesday opted to stick with the current 90% cap.

After the Senate vote, Governor Lujan Grisham issued the following statement:

“We have made promises to New Mexico’s current and future retirees and these changes will ensure those promises are kept. A stable and solvent PERA matters to all New Mexico taxpayers.”

The bill must be passed by the House by next Thursday before it can be signed by the Governor to become law.

GOVERNOR’S PRIORITY IS TASK FORCE POORLY ADVISED PRIORITIES

Senate Bill 72 is largely based on recommendations from a task force the Governor appointed last year to come up with pension reform recommendations. The Governor’s PERA Penson reform task task force was essentially packed with public safety union representation none who had any financial background in government pension planning. The chairman of the task force was one of the Governor’s chief of staff, a retired fire fighter and former union president who is now lobbying for enactment of the bill. No woman were appointed. Public Safety Unions are a small fraction of the states work force.

The most controversial recommendations made by her task force involved the 2% cost of living (COLA) currently guaranteed to all retirees. The legislation will establish a “profit-sharing” model for the annual cost-of-living adjustments that most retirees now receive. Rather than an automatic 2% increase in their pensions each year, the actual amount would fluctuate, anywhere from 0.5% to 3%, depending on investment returns.

SUPPORT VOICED

Supporters of the changes argued that while difficult, they are necessary to ensure the Public Employees Retirement Association is healthy enough to withstand an economic downturn. Sen. George Muñoz, a Gallup Democrat and sponsor of the bill had this to say:

“I think the retirees are a little upset but we’re watching after their future. It’s hard to do it in a 30-day session, but it’s going to be even harder when we have to cut benefits to employees in a special session. … We need to act now. We could lose these funds completely.”

Wayne Propst, PERA’s executive director, said the cost-of-living adjustment the system has been paying out greatly exceeded inflation for many years. He also stressed the profit-sharing model would allow the system to only make payments “when we have the resources to do”.

According to Propst:

“For the last 20 years, we’ve been paying [the cost-of-living adjustment] on a credit card. This changes it to paying on a debit card.”

Propst and the Governor’s Office argue the older retirees need not worry about the reform because it actually proposes to increase the cost-of-living adjustment by 0.5 percent for those over 75, which is 30% of the current 41,000 recipients.

https://nmpoliticalreport.com/2020/02/11/pera-solvency-bill-advances-from-key-committee-after-emotional-hearing/

OPPOSITION VOICED

The bill’s opponents were more than just a little upset. Loretta Naranjo Lopez, a member of the Public Employees Retirement Association’s board, during the Senate Committee hearing, accused the pension system’s staff of “embezzlement” and the governor of “undue and unethical influence” on the board. Senator John Arthur Smith, the committee’s chair, slammed his gavel multiple times, demanding Naranjo Lopez speak about the bill itself instead of making accusations.

Opponents that did speak about the bill voiced a number of concerns, particularly about its proposal to move to a profit-sharing model for the annual cost-of-living adjustments retirees receive in their pensions.

Senator John Sapien, D-Corrales, called the part of the cost of living plan “flawed.” He and other senators suggested the annual adjustments should be tied to inflation rather than to investment returns. Under the proposed model, annual raises would range between 0.5 percent and 3 percent, depending on investment returns, rather than then 2 percent annual cost-of-living raises retirees currently get.

Senator Sapien assailed the bill’s changes to the system of annual cost-of-living adjustments. He argued it would ultimately leave retirees’ with smaller annual raises than they get now even after retirees had agreed to other painful changes to the retirement system seven years ago. According to Sapien:

“We’re asking them to give again with promises of profit-sharing that are not going to come to fruition.”

https://www.abqjournal.com/1419892/pension-overhaul-wins-senate-approval.html

WHAT THE FUSS IS ALL ABOUT

Over the last few years, it has been reported that PERA is in serious financial trouble because of long term liabilities of benefits to paid retirees in the future will exceed literally by the billions the funds that are available. PERA’s estimated unfunded liability, which is the gap between future retirement benefits owed and expected future assets on hand, has increased over the past four years from $4.6 billion to $6.6 billion in unfunded liability.

The PERA’s retirement system’s funded ratio, which is the plan’s assets divided by its liabilities, is now at 70%. The PERA governing board has set the goal to reach 100% funding of liabilities by the year 2043. The PERA pension system’s $6.6 billion in unfunded liabilities, or shortfall, has already damaged New Mexico’s credit rating.

Under the proposed legislation, government employers and employees will pay more into the system with a schedule that phases in higher contributions. Other changes will help retirees who are older than 75, disabled or receiving pensions of less than $25,000 a year, despite 25 years of service. With respect to annual cost-of-living adjustments, they would be increased by half a percentage point to 2.5% for retirees who are 75 or older. This was a change made after it was requested by Governor Lujan Grisham.

Under the proposed legislation, many retirees would receive a temporary reduction in their cost-of-living increases. For 3 years, retirees would get an extra check equal to 2% of their pension. Such a “one lump” sum payment in one check would eliminate the compounding effect of having each 2% build on the previous 2% increase.

Under PERA’s current assumption of 7.25% investment returns, Propst has said, the average cost-of-living adjustment would be between 1.61% and 1.65%.

COMMENTARY AND ANALYSIS

During her campaign, candidate for Governor Michelle Lujan Grisham said she would oppose cuts to benefits, including any reduction in the annual inflation-related pension adjustments that retired state workers and teachers receive. According to a campaign spokesperson at the time:

“She does not believe that New Mexico needs to eliminate our defined benefit system for current or future educators and state employees and opposes any reduction in cost-of-living adjustments.”

The PERA solvency plan the Governor supports has alienated some of her strongest supporters that could signal trouble for her in 3 years when see seeks a second term. Governor Lujan Grisham received a significant number of union endorsements and campaign donations especially from state government unions such as AFSME.

The PERA governing board has set the goal to reach 100% funding of liabilities by the year 2043 declaring there is a PERA pension fund “crisis”. The truth is, there is no crisis and the PERA Pension plans are solvent for at least 23, if not more years. The PERA pensions funds have always operated in the red, with investments ebbing and flowing to pay retirement benefits as they incur. It is the funds financial advisers who want a 100% funded program, no doubt motivated by getting their hands on more money to invest and getting hirer investment fees.

The New Mexico PERA pension program has 70% of funded liability in current funding assets to future liability making it one of the strongest pension programs in the country. The two major pension funds that are currently problematic are shortfalls of 7.99% of State General pensions and 13.87% for Municipal Fire Pension programs. Contribution shortfalls of State General and Municipal Fire are up and until 2066. PERA management has failed to articulate in clear terms all the options available to insure PERA will reach a 100% funding ratio by 2043.

PERA pays pensions to more than 40,000 retirees and also has upwards of 50,000 active members who are working and paying into the system. The New Mexico Legislature and the Governor have rushed a pension reform in a 30 session when it should have been taken up in a 60 day session. PERA manages a $15 billion pension fund and income from fund investments that helps pay pensions owed. There is time to address the PERA pension system and the sky is not falling. It has become the mantra of some pension fund administrators, financial consultants that benefit from such schemes and ideological zealots that government pension funds should be 100% funded. These individuals are wrong. A recent report from the highly respected Brookings Institution, “The Sustainability of State and Local Government Pensions: A Public Finance Approach,” debunks this false narrative.

It is not necessary for these funds to achieve 100% funding and there are serious risks in attempting to achieve full pre-funding. Funds attempting to reach full pre-funding generally take more risks in their investment portfolios. Most importantly, trying to achieve full pre-funding, especially over a relatively short period, requires significant sacrifices and financial pain. This includes cuts to retirees’ COLA benefits, increases in contribution rates and significant subsidies from state government, all elements of the governor’s proposal.

Rather than reducing Cost of Living Adjustments to the legislature could make adjustments like increasing age of retirement, change the formula to calculate retirement, make increases in contributions and infuse state funding into the pension funds, but only those that are underfunded which currently are the municipal fire fighters fund and the general worker fund. Better management of the pension funds and increasing returns on investment are always relied upon to pay for benefits.

PERA pays pensions to more than 40,000 retirees and also has upwards of 50,000 active members who are working and paying into the system. Former Governors Bill Richardson and Susana Martinez avoided pension reform knowing the dangers and pitfalls.

With only seven days left in the 2020 Legislative, Senate Bill 72 needs to be rejected by the house and pension reform taken up in a special session or during the 2021 session where there is time to consider pension reform once and for all.

On Saturday, February 8, the New Mexico Senate voted 38-0 to approve Senate Bill 64. The legislation removes all waiting periods required before settlement agreements involving state employees, officials and agencies where the State pays amounts to settled cases can be made public. The legislation will also remove the existing penalty for those who break confidentiality provisions. SB 64 now advances to the House but there is less than two weeks left in the 30-day legislative session.

There is a minimum 180-day waiting period before settlements can be made public and that would be eliminated under SB 64. The legislation mandates that settlement agreements are to be made public once they are signed by the parties to the lawsuit or upon a final judgment resolving the claims, whatever comes first.

https://www.abqjournal.com/1418570/senate-votes-38-0-to-approve-settlement-transparency-bill.html

BCAKGROUND ON NONDISCLOSURE PROVISIONS

The State of New Mexico is a “self-insured” government, generally meaning that it does not carry liability insurance to pay for claims against the state. Civil lawsuit defense and settlements are paid out of risk management funds, which is taxpayer money. The New Mexico Legislature funds each year what is known as the “Public Liability Fund” to pay claims against the state.

The Risk Management Division (RMD) insures state agencies against tort claims, claims alleging civil rights violations, personal injury claims, including Workers Compensation claims filed by state employees who are injured on the job. RMD also provides insurance for some local government bodies. RMD contracts with private attorneys and firms that competitively bid to provide to defend the state. Last fiscal year upwards of $10 Million or more was paid by the state to private law firms to defend the state against claims.

https://www.generalservices.state.nm.us/riskmanagement/

When the State Risk Management Division settles a case, it denies any and all wrongdoing, and demands that the settlement makes it clear the State is agreeing to end the case as a compromise or to avoid further litigation costs. This is standard practice in most civil lawsuit settlements and common even in the private sector. The parties usually agree to avoid disparaging each other or speaking about the terms and conditions of the settlement.

Under the current law, the timeline for mandatory disclosure is not clear and settlement terms, conditions and settlement records cannot be disclosed to the public but must be kept confidential for at least 180 days, or a full 6 months. Because of complicated or conflicting language used in settlements, it is unclear which claims have been settled or when they can be released to the public. Current State law provides that the confidentiality period can start on 4 dates:

1. The date the settlement is signed
2. The date the claim is closed administratively by the state, or
3. The date all litigation is completed or even
4. The date all statutes of limitations have run on a claim.

CATALYST FOR CHANGE IN LAW

On June 23, 2019, it was reported that $7.9M in settlements were paid in 2018 by the state in an 9-month period. Former Republican Governor Susana Martinez’s administration approved the settlements with lengthy gag orders during the final weeks of 2018, Martinez’s final year in office.

Highlights of State litigation settlements provided by the State Risk Management Division revealed the following approved settlements paid during the 9-month period before Marinez left office:

1. New Mexico authorized approximately $7.9 million in settlements of at least $20,000 during a nine-month period.

2. $2.5 million was paid to resolve allegations of sexual harassment and discrimination in the Corrections Department. 6 correctional officers who worked at the state prison in Los Lunas said they endured a “sexualized, violent environment” in which male colleagues exposed themselves, made derogatory comments and inappropriately touched female officers. The suit alleged that female officers were “subject to unthinkable and constant sexually based violence and harassment.”

3. $1.5 million was paid to 1 of 6 developmentally disabled adults entrusted to state care who failed to get the protection from abuse and neglect they were entitled to. Six plaintiffs accused the state Department of Health and others of failing to provide adequate services and violating their constitutional rights. The attorneys in the case participated in an arbitration before arbitrator and retired District Court Judge William Lang to determine how much the state should pay. The range set and agreed to by the parties was at $500,000 to $1.5 million. Lange issued a $7.5 million award in the plaintiffs’ favor. The state paid $1.5 million, the maximum the parties had agreed to before the proceeding began. Former District Court Judge Lang has been recently appointed Chairman of the new Ethics Commission.

4. $775,590 was paid to Otis and Melissa Morehead, who filed a claim with the University of New Mexico Health Sciences Center concerning medical services provided to Melissa and a third family member.

5. $250,000 was paid to plaintiff Damian Horne and his attorney. Horne had worked in the Public Defender’s Office and filed a whistleblower lawsuit in 2016, contending the office had put him on leave and intended to fire him as retaliation for expressing his opinions about problems in the office.

6. $165,000 was paid to Plaintiff Diane Kretschmer to resolve claims against the state Livestock Board and several of its agents.

7. $150,000 was paid to Plaintiff Karl Rougemont, who filed a lawsuit in 2015 alleging he was injured during a defensive tactics demonstration while he was a cadet at the law enforcement academy.

8. $80,000 was paid to settle claims that then Governor Susana Martinez’s security team defamed and assaulted two people who showed up at a political event in Deming. The plaintiffs in that case run a youth ranch and wanted to deliver a petition to the governor. The allegations center on a 2014 incident at a motel in Deming. The plaintiffs said the Republican Party of Luna County had invited them and others to meet the governor that day, but State Police officers improperly threatened them with arrest when they showed up and forced them to leave, they allege. The Plaintiff’s were represented by private attorney Pete Domenici, Jr., the son of longtime New Mexico United State Senator Pete V. Domenici.

9. $25,000 was paid to settle a lawsuit filed by a woman who accused New Mexico State University of refusing to hire her because she is a Christian and heterosexual. According to the plaintiff, the school improperly rescinded an offer to make her an assistant basketball coach. The Plaintiff was a former college basketball star, and alleged she had initially been offered a job as an assistant women’s basketball coach but that the offer was rescinded after the coach saw an online interview, she’d participated in. In an interview, the Plaintiff explained that she gave up same-sex relationships because they conflicted with her Christianity, and she described homosexuality as “wrong” and sports as “evil.”

https://www.petedinelli.com/2019/06/27/32-million-paid-in-state-settlements-department-of-finance-dfa-needs-more-control-over-risk-management-division-rmd-publish-settlements/

Absent from the report on Risk Management settlements is a $1.7 million settlement in a lawsuit alleging that the former New Mexico State Police Chief Pete Kassetas engaged in “blatant, ongoing and systematic discrimination” during his time as New Mexico State Police Chief, including at one time “mooning” his employees. According to the lawsuit, Kassetas described his employees as “dumb [‘efing’] bitches” and he once sent an image of a man’s testicles blocking out the sun to a Deputy Cabinet Secretary in the Department of Public Safety, all allegations Kassetas presumably denied. The case was settled in December, 2018 after two days of negotiations.

https://www.abqjournal.com/1286041/lawsuit-settled-against-nmsp-chief-department-of-public-safety.html

SPECIAL AUDIT REVEALS ABUSE OF POWER TO PROTECT A GOVERNOR

A special audit commissioned last year State Auditor Brian Colón ordered a special audit of State Risk Management settlements and the audit identified $2.7 million in fast-tracked legal settlements. On Monday, November 18, New Mexico State Auditor Brian Colon announced the results of the special audit he had ordered. The audit found $2.7 million in secret settlements involving appointees of former Republican Governor Susana Martinez.

The special audit found settlements of civil rights claims from fiscal year 2015 to the end of the Martinez Administration and the present averaged 607 days and higher. According to the audit, 18 claims were settled before Martinez left office much faster with most under 200 days. The audit also found that in a number of the settlements examined, the confidentiality periods and damages assessed for violating those agreements exceeded what is mandated by state law. The contracted state auditors reviewed the paper trail for each settlement and tried to speak with the outside attorneys hired to defend the state, along with former Risk Management Division officials and plaintiffs’ attorneys.

The settlements lacked proper documentation, transparency, and investigations and were fast tracked according to the audit. Colon proclaimed the settlements an “abuse of power” by former Republican Governor Susana Martinez. According to Colon, the secret settlements were done to save the former Governor from embarrassment, protect her personal reputation, and to protect her political appointees and her political agenda.

On November 18, 2019, New Mexico State Auditor Brain Colon held a press conference to announce the results of the special audit he ordered. Colon strongly condemned the secret settlements by saying:

“This is about an abuse of power. It’s about a lack of transparency, and particularly as it relates to political appointees by our former governor. … We should never settle matters and use taxpayer dollars to protect political interest, political legacies and personal agendas. These are not anomalies that don’t matter … These are anomalies that actually represent secret payouts to protect the [former Gov. Martinez] administration’s reputation. … [W]hat’s truly concerning and what really is disgusting is that $2.7 million of those $5 million in settlements were done in secret without process and without a proper investigation. … There was virtually no proof in the files and in the records as to why these high dollar amounts were approved [by the Martinez administration.]”

https://www.petedinelli.com/2019/11/20/auditor-colon-finds-abuse-of-power-with-secret-settlements-by-former-gov-susana-martinez-gov-mlg-needs-to-empower-dept-of-finance-over-risk-management-to-stop-secret-settlement/

After the Colon press conference, New Mexico Risk Management Division (RMD) issued the following statement saying:

“The Risk Management Division no longer enters into settlements with confidentiality periods that extend beyond those established by state law. … It also no longer threatens claimants with excessive monetary penalties to keep them quiet. … [State settlements] are examined thoroughly, objectively and consistently.”

It was embarrassing that New Mexico State Police Chief Kassetas for his part said about the special audit:

“The Office of the State Auditor validated the information I brought forward in a factual manner that cannot be disputed. This has always been about public corruption and exposing the fraud perpetrated against the New Mexico taxpayers.”

The comments about “exposing” things coming from the former New Mexico State Police Chief who was accused of exposing his rear end to employees is revealing.

https://www.petedinelli.com/2019/11/20/auditor-colon-finds-abuse-of-power-with-secret-settlements-by-former-gov-susana-martinez-gov-mlg-needs-to-empower-dept-of-finance-over-risk-management-to-stop-secret-settlement/

LEGISLATURE’S OUTRAGE

Many New Mexico State Senators, both Democrat and Republican, were outraged by the secret settlement agreements approved by former Risk Management Division officials under the Martinez administration.

Democrat Senator Joseph Cervantes, D-Las Cruces, a prominent trial attorney, had this to say on the Senate floor during debate on the bill:

“There was a fraud perpetrated on New Mexico taxpayers at the end of the last administration. … The worst part of all this is they tried to hide it.”

Republican Senator Sander Rue, R-Albuquerque had this to say on the Senate floor during debate on the bill:

“We have to legislate to bad behaviors. … There are those individuals that find a way to get around these things.”

Cabinet Secretary Ken Ortiz for the General Services Department which Risk Management is a division of, announced last year that the State would automatically publish all state settlement agreements. The legislation mandates that settlement agreements are to be made public once they are signed by the parties to the lawsuit or upon a final judgment resolving the claims, whatever comes first.

ANALYSIS AND COMMENTARY

Six months for the public to have to wait to find out the terms and conditions of a settlement is outrageous. The settlements are taxpayer money being paid as are defense fees paid to private attorneys and taxpayers have the right to know what was paid, why and to whom.

In the interest of full disclosure and transparency, all settlements should be posted within at least 30 days if not sooner from the date the settlement is agreed to by the parties on the state’s sunshine portal. There should be absolutely no confidentiality clauses when it comes to the settlements including attorney fees paid. It is taxpayer money and the legislature need to act in the interest of complete transparency.

Governor Michelle Lujan Grisham and Cabinet Secretary Ken Ortiz supporting the SB 64 is commendable. What is also commendable is posting the settlements on the sunshine poral. What also needs to be posted on the sunshine portal are the names of attorneys or firms awarded state contracts to defend the state, the amounts of the contracts awarded, the term of the contracts, and the hourly rate being charged.

The New Mexico Senate senate voted 38-0 to approve the bill. Senate Bill 64 sends a very strong message that secret settlements must end. The House should send the same message and vote to enact the legislation and send it on to the Governor for her signature.

For a related blog article see:

$32 Million Paid In State Settlements; Department of Finance (DFA) Needs More Control Over Risk Management Division (RMD); Publish Settlements

Three “tough on crime” bills placed on the 2020 legislative agenda by Democrat Governor Lujan Grisham are 3 house House Bills sponsored by Republican State Representative Bill Rehm. The bills are House Bills 18, 35, 113 and 114. All 3 have already cleared one committee. The bills will now be heard in the House Judiciary Committee.

House Bill 35 would increase the sentencing enhancement for using a gun to commit a crime from 1 year to 3 years for a first offense, and from 3 years to 5 years for the second offense. The enhancement time is mandatory prison time. A judge would not have any discretion to suspend the prison time in favor of probation, no matter the circumstances.

House Bill 113 would change the crime of being a “felon in possession of a firearm” from a 4th degree felony to a 3rd degree felony. The basic sentence for the crime would be doubled from 18 months to 3 years.

House Bill 18, changes the definition of a “felon” and would include anyone who has ever been convicted of a felony no matter the time passed. Under the current law, the definition of a felon includes only those who have completed a prison sentence in the previous 10 years from the date of the most current conviction.

House Bill 114 would make it a 3rd degree felony to carry a firearm while trafficking a controlled substance. A 3rd degree felony carries a sentence of three years in prison and up to $5,000 in fines.

CRIME PACKAGE CONSOLIDATES OTHER CRIME LEGISLATION

The original bills, along with a 4th, have now been combined in a House committee and are being offered as an “ anti-crime” packaged. Members of the House Judiciary Committee drafted the anti-crime legislation and consolidated four separate ideas into one bill. The bill is now known as House Bill 6. The House Judiciary Committee voted 13-0 to move the legislation forward, sending it to the full House for a vote. If it passes the House, it will then be forwarded to the Senate for consideration.

The legislation would increase criminal penalties, encourage community policing and make it easier for law enforcement officers to secure treatment for post-traumatic stress disorder. The house legislative crime package is the result of negotiations by Democratic and Republican lawmakers aiming to improve public safety in New Mexico, especially in Albuquerque. Albuquerque has the highest violent crime rate and homicide rate in the state. Last year, the city recorded 82 homicides, a record high. Democrat Governor Michelle Lujan Grisham, like the previous 3 bills, has endorsed the package of legislation. The Governor is also urging Democrats to embrace some of the stiffer criminal penalties sought by Republican legislators.

Democratic Representative Dayan Hochman-Vigil and Republican Representative Bill Rehm, both of Albuquerque, argue that the criminal will attack violent crime on a number of levels. According to both Representatives, on one hand it will encourage the use of community policing to prevent crime and on the other toughen penalties for use of a firearm to commit a crime.
According to Republican Representative Bill Rehm, violent crime is so high in Albuquerque that it resulted in U.S. Attorney General William Barr last year.

“Too many of our communities are seeing repeat offenders in their neighborhoods carrying a firearm. … We’re targeting the most violent and threatening members of our community who use a gun [with this legislation]”

Hochman-Vigil for her part said:

“Crime affects every single of one us in our communities.”

WHAT THE CRIME PACKAGE DOES

The House Judiciary Committees’ Crime Package can be summarized as follows:

1. Like the original House Bill 35, it will increase the criminal penalty for brandishing a firearm in the commission of a crime. The change is that the firearm enhancement would go from 1 year to 3 years for a first offense. Under the original HB 35, a sentencing judge, the sentence would be mandatory and a judge would not have had any discretion to suspend the prison time in favor of probation, no matter the circumstances. Under the new bill proposed, judges would have the option of suspending the extra time and allow probation.

2. Like the original House Bill 113, the crime package will stiffen the penalty for being a felon in possession of a firearm. The offense will go from a fourth-degree felony with a basic sentence of 18 months to a third-degree felony with a basic sentence of three years.

3. The consolidated crime package will allow the state’s law enforcement protection fund to be tapped for training officers in “community-oriented policing” techniques aimed at preventing crime in neighborhoods. Cities and counties could apply for money from the fund to pay for training and recruiting officers to engage in community policing.

4. The consolidated crime package will make it easier for law enforcement officers to get treatment for post-traumatic stress disorder. The bill would add PTSD to the list of conditions presumed to have been caused by their work as officers and require employers to provide medical treatment for it. The “presumption” is a modification of the New Mexico Workers Compensation statute where an injured worker suffering from PTSD is required to establish within a reasonable degree of medical probability that it is work related.

According to Democratic Representative Marian Matthews of Albuquerque, more officers are dying of suicide than in the line of duty. According to Mathews:
“[The goal is to help] people who are on the first line who experience substantial trauma because of the work they do.”

INCREASING CRIMINAL PENALTIES DRAWS MIXED REACTION

Not at all surprising, Paul Haidle, an attorney and senior policy strategist for the American Civil Liberties Union of New Mexico said the passage of tougher penalties may make a statement but it won’t actually improve public safety. Kim Chavez Cook of the Law Offices of the Public Defender had this to say:

“Increasing penalties doesn’t deter crime”.

Supporters said the enhanced penalties contained in the consolidated crime bill are a sensible way to take dangerous people off the streets for a longer period of time.

https://www.abqjournal.com/1418566/lawmakers-prepare-public-safety-package.html

COMMENTARY AND ANALYSIS

Virtually every argument being made in support of HB 6 increasing criminal penalties have been heard before over the years. Increased sentencing has proven ineffective in reducing violent crime. Criminals hell bent on committing any crime with a gun do not sit down with the criminal statutes to figure out what the penalties are for using a gun or the risk they are running at sentencing. Someone who is angry enough to shoot someone dead or who suffers from acute mental illness and wants to kill are not going to “think twice” about committing a crime. Violent criminal intent cannot be rationalized with in any way. The most violent criminals are not going to kill thinking about how long they may be in prison if caught, convicted and sentenced.

Increased sentencing penalties and mandatory enhancement penalties will result in overcharging and a failure to screen cases properly by the District Attorney. Overcharging a case by the Bernalillo County District Attorney’s office is a very common practice. Many mandatory enhancement charges will wind up becoming simply “bargaining chips” to secure a voluntary plea agreement to a lesser included offense and sentencing agreement usually at significantly reduced penalties.

A very good thing about consolidated HB 6 is that it drops the mandatory sentencing by a judge taking away a sentencing judge’s discretion to suspend the prison time. Judges need to be empowered with deciding if a person can be rehabilitated in any meaningful manner and returned to society. Mandatory enhancement provisions do not allow a judge to impose any type of probation or suspension. A defendant’s criminal record, the extent of injury caused, the impact of the crime on the victim or the community, and the extent to which the defendant has addressed life circumstances, such as drug addiction, which may have contributed to the criminal behavior, become totally irrelevant with mandatory sentencing. Mandatory sentencing by judges is not how the criminal justice system is supposed to work. Under HB 6, sentencing judges would have the option of suspending the extra time and allow probation, which is a very good thing.

Another point too often forgotten by the tough on crime advocates is that once you imprison someone for a crime, they become wards of the state. A prisoner’s health, safety, welfare, food and lodging and medical care must be paid for by the taxpayer. It is far too easy for elected officials to say imprison someone, but there must be a willingness on their part to pay and build jails and house and feed those you want behind bars.

Consolidated House Bill 6 is far more acceptable as a result of removal of the “mandatory sentencing” provisions and for that reason it has a far better chance of being enacted by both the House and Senate. Notwithstanding, the New Mexico 30-day legislative session is well over half way done and will adjourn in less than two weeks. It is very likely that HB 6 will fail and not make it through the New Mexico House and Senate unless both Chamber’s fast tracks it and gets it on the agenda sooner rather than later for a final vote.