There are over 76,000 people enrolled statewide in New Mexico’s medical cannabis program which became law in 2007. On August 29, 2019, Santa Fe District Judge Bryan Biedscheid ruled that New Mexico must allow non-residents to participate in its medical cannabis program. According to the court’s ruling the language of the amended medical cannabis statute is clear: “it does not allow the Department of Health to withhold identification cards to qualifying patients who live outside of New Mexico.”

After the court hearing, Judge Biedscheid ruled:

“This statute, plainly and unambiguously, does away with the requirement of residence of the state of New Mexico … Continuing to insist on a showing of residence for eligibility in the program, when that has been taken out by the Legislature, is not appropriate.”

In announcing that the State will appeal the court ruling, Governor Michelle Lujan Grisham strongly criticized the ruling by issuing the following statement:

“We remain of the opinion that New Mexico’s medical cannabis program should not be bulldozed by an out-of-state litigant operating with his own financial interests at heart rather than those of the state’s medical program or of the many New Mexicans who depend upon it … [The ruling] contradicts both the intent of the legislative sponsor and the interpretation of the New Mexico Department of Health, and the state plans to appeal the decision.”

The court ruling centers on amendments made to the medical cannabis law by the 2019 New Mexico Legislature and which Governor Lujan Grisham signed into law. The changes took effect on July 1, 2019. The legislature changed the definition of “qualified patient” by removing a requirement that an enrolled member of the medical cannabis program must be a New Mexico resident.

The Health Department argued that the legislative intent of the change was aimed at providing reciprocity to residents of other states who have valid medical marijuana cards. An example would be a resident of another state who has a medical marijuana card from that state and who travels through or comes to New Mexico for an extended period of time and needs to refill their prescription, they can do so in New Mexico.

You can review other legislative changes to the medical cannabis statute in the postscript below to this article.

COURTROOM ARGUMENTS

Matthew Garcia, general counsel for the Governor’s Office and Thomas Bird, the Health Department’s attorney, argued that the change was not intended to allow non-New Mexico residents to obtain medical marijuana cards, and that such a shift would encourage the transport of marijuana across state lines, which is illegal under both federal and state laws. They further argued that the change on residency was aimed at providing reciprocity to residents of other states with valid medical marijuana cards.
Thomas Bird, the Health Department’s attorney, argued to the court:

“The department is justifiably concerned about that problem because it could threaten the whole program. … This isn’t ‘chicken little,’ this isn’t ‘the sky is falling,’ these are the legal realities of the anomalous relationship between the program and federal law.”

Plaintiffs’ attorney suing the state, who is also the Speaker of the House Brian Egolf, argued that there was “no clear evidence” that the Legislature intended to require New Mexico residency. Egolf argued there is nothing to back up the concern that the change would impede the state’s ability to maintain regulatory control and he told the court:

“There is no evidence offered to support this theory [that] … anyone who’s driving through the state of New Mexico will be able to pull over to the side of the road to get a registry identification card like it’s a Snickers bar … That’s completely wrong.”

Egolf noted that the federal law prohibits U.S. government resources being used for the prosecution or dismantling of any medical cannabis program and New Mexico’s program will not be in jeopardy.

https://www.abqjournal.com/1359894/judge-opens-medical-marijuana-program-to-out-of-state-residents-govs-office-plans-to-appeal.html

COMMENTARY AND ANALYSIS

The State Court ruling came as no surprise to anyone in the legal community given the language, or lack of clarifying language, in the medical cannabis statute. What did come as a surprise and raised more than a few eyebrows in the legal community is that the Plaintiffs’ attorney suing the state is the New Mexico Speaker of the House Brian Egolf, a prominent Santa Fe trial attorney, who also voted for the amendments to the law. Egolf representing the Plaintiff in the case against the State on a law he voted for does indeed raise more than a few questions of “conflict of interest” and the “appearance of impropriety” at least in the court of public perception.

One of the plaintiffs in the case Egolf represents is Duke Rodriguez, the president and CEO of Ultra Health LLC, a prominent licensed medical marijuana producer. Rodriguez is also a former New Mexico Human Services Secretary who now is an Arizona resident. It is likely Mr. Rodriquez knew that hiring the Speaker of the House as his attorney to represent his firm in litigation was an advantage on more than one level when it comes to New Mexico politics.

Ostensibly, the state had no problem with Egolf representing the plaintiff in that Matthew Garcia, general counsel for the Governor and Thomas Bird, the Health Department’s attorney, were not reported by the media objecting to Egolf representing the Plaintiffs and did not ask the Court to remove Egolf from the case for any sort of perceived conflict. Notwithstanding, Egolf should have declined the case or at the very minimum had an associate argue the case for his firm before the court to avoid the public perception that the Speaker Egolf had a conflict.

Egolf has now created a problem for himself in the event the Governor and the legislature seek to amend the law once again to include a residency requirement. Egolf will be forced to decide does he vote to amend that statute to include residency or does he take the position of his client and oppose it? With the new ethics commission in the process of booting up, Egolf should have been a little more cautious in taking the case. Egolf should not be surprised if someone within the Republican party or any potential opponent attempts to make an issue of his actions in the court case.

LEGISLATIVE INTENT

What cannot be dismissed lightly is that Egolf, as an attorney, was representing a plaintiff adverse to the state in a courtroom and argued there was no legislative intent. Egolf argued that there was “no clear evidence” that the Legislature intended to require New Mexico residency for those trying to access the state’s medical cannabis program. Egolf cannot switch off his authority as Speaker of the House by merely walking into a courtroom to argue a case for a client.

When Egolf argued from the court podium on legislation he voted for and that there was no legislative intent, he was essentially testifying as a witness legislator rather than an attorney. The Court should have admonished or cautioned him. The reality is what good is it to piss off the Speaker of the House who has control of the courts budget when you can just ignore what he has to say and make the ruling you want to make, which is what happened.

It is more likely than not that the Court discarded much of what Egolf had to say given that the ruling was based on the clear language, or absent of language taken out, in the statute. It is well settled New Mexico case law that legislative intent is a matter of law and not of fact that must be proven in a court of law. Legislative intent is based strictly on the final language of the statute. It’s the final language of the statute enacted and signed by the governor that embodies the legislatures intent, not arguments made by legislators debating the statute before its enacted. Appellate court decisions have specifically rejected post-hoc affidavits by legislators as not being competent evidence of intent.

GOVERNOR’S CONDEMNATION OF RULING

The Governor’s condemnation of the ruling and the announcement that the State intends to appeal the court’s ruling was an overreaction. An appeal will only benefit the lawyers and would be a waste of time. It is more likely than not that the Court of Appeals and the Supreme Court will uphold the ruling.

The ruling should not be appealed, but should be taken as a recommendation that the New Mexico Legislature should once again amend the statute during the upcoming 2020 session which is within 4 months.

The Governor’s Cannabis Legalization Working Group should submit proposed legislation to include in the definition of “qualified patient” the requirement that an enrolled member of the medical cannabis program must be a New Mexico resident. What the legislature took out can always be put back in along with the 4 options being looked at by the Governor’s Cannabis Legalization Working Group to protect the medical marijuana industry. Those other changes can be viewed in the postscript below.

Expediting legalization of recreational marijuana is one likely result of the Santa Fe District Court ruling.

UPDATES:

ALBUQUERQUE JOURNAL EDITORIAL

On October 1, 2019, the Albuquerque Journal published the below editorial:

HEADLINE: “Did Brian Egolf miss the day in law school where they cover conflicts of interest?

The Santa Fe Democrat currently serves as New Mexico’s Speaker of the House. Egolf, like many of his fellow unpaid New Mexico lawmakers, also has a day job as an attorney. That’s normal for our citizen Legislature and not a problem in and of itself.

Perhaps it’s a good topic for New Mexico’s newly minted Ethics Commission to cut its teeth on. Because disclosure norms notwithstanding, having the guy who helps make the rules for an industry also represent that industry in court should raise some eyebrows.

https://www.abqjournal.com/1372801/speakers-work-on-medical-marijuana-suit-raises-concerns.html

SPEAKER OF NEW MEXICO HOUSE BRIAN EGOLF RESPONDS TO JOURNAL

On Sunday, October 6, the Albquerquerq Journal Published Speaker of the House Brian Egolf’s response to its editorial as follows:

As citizen legislators, we must ensure that our behavior is not influenced by the promise of a specific benefit for ourselves or our families. We also must separate our professional lives from our legislative service. It is clear from the record that the medical cannabis legislation in question went through the regular legislative process and was not expedited in any manner. The bill was introduced and modified several times in the Senate and made its way through the process in the House with no particular speed. This record is available plainly on the legislative website, and I invite the public to examine the record for themselves. Unfortunately, the Albuquerque Journal “greased the skids” in its editorial process and thereby ignored facts, the clear record and the law to produce a political hit-job.

https://www.abqjournal.com/1374952/editorial-all-medical-pot-smoke-no-fire.html
_______________________________

POSTSCRIPT

During the 2019 New Mexico Legislative session, the legislature enacted changes to the medical cannabis laws. In April, 2019, Governor Lujan Grisham signed into law the changes made by the legislature to the program and the changes took effect on July 1, 2019.

The other major changes made to the medical cannabis laws are:

1. The law now provides that it is unlawful in most circumstances for an employer to fire or otherwise discipline a worker based on allowable conduct under the state’s medical marijuana program. It is not clear whether this change in the law will affect employers with policies that require drug testing of applicants before they are hired, with a positive test precluding their hiring regardless of whether they have a medical marijuana card.

2. The second major change to the law specifies that employers can still establish policies barring use of medical marijuana on the job or showing up under the influence of the drug and take action against employees who violate the policy. Concern has been raised in the business community that anything that would limit an employer’s ability to enforce their drug-free workplace programs would be problematic.

3. Allowing medical marijuana in schools, under certain circumstances.

4. Extending the length of an approved patient identification card from one year to three years.

5. Mandating that a licensed medical marijuana user cannot be denied an organ transplant on the basis of their participation in the program.

https://www.abqjournal.com/1335093/medical-cannabis-law-changes-may-spark-confusion-ex-business-leaders-concerned-about-enforcing-drugfree-workplace-rules.html

CANNABIS LEGALIZATION WORKING GROUP

On June 28, 2019, Governor Michelle Lujan Grisham announced the creation of a Cannabis Legalization Working Group. The group has held public hearing throughout the state. The Working Group or Task Force is finalizing its recommendations to the governor that will be incorporated into proposed legislation to be introduced in the 2020 legislative session.

There are at least 4 options being looked at by the task for to protect the medical marijuana industry and they are:

1. Establishing a licensing and fee system to provide an incentive for companies that produce marijuana for medical consumers.

2. State regulators could require that a certain amount of a company’s sales be dedicated to patients.

3. New Mexico could also encourage medical consumers to stay in the program by exempting their purchases from the taxes levied on recreational consumers.

4. The State could require providers to reserve certain products with high potency for medical patients only.

https://www.abqjournal.com/1353939/pot-legalization-could-draw-out-of-state-visitors.html

New Mexico State Senator Richard Martinez, age 66, was first elected to the chamber of the New Mexico State Senate in 2000 representing Senate District 5 which includes the counties of Los Alamos, Rio Arriba, Sandoval and Santa Fe. Martinez is a graduate from the Central New Mexico Technical Vocation Institute. His professional experience includes serving as a Magistrate Judge for 14 years and he is retired from that position and is paid a pension. He served four years as the Rio Arriba County Treasurer and the Senator has also served as the Rio Arriba Democratic Party Chairman and was elected in 2010 to serve as Chairman of the Hispanic Caucus of New Mexico State Legislators

On Friday, June 30, 2019, State Senator Richard Martinez was arrested for suspected drunk driving. Police reported that Martinez admitted to drinking after rear-ending a car in Espanola. A driver told police Martinez rear-ended him at a red light at Paseo de Onate and Fairview Lane in Espanola late at night. An officer said he could smell alcohol coming from Martinez’s car and that when he asked Martinez how much he’s had to drink, Martinez changed his story a few times.

The incident report said the state senator failed field sobriety tests and while being booked into jail, he told officers in part “are you serious,” and refused to take a breath test. According to the incident report, he first said that he had one or two beers. He then said that it might have been more than that then claiming he “actually drank three glasses of wine.”

https://www.krqe.com/news/new-mexico/state-sen-richard-martinez-arrested-for-aggravated-dwi/

When Senator Richard Martinez was first arrested for his DWI, Governor Lujan Grisham did not call for Martinez’s resignation but said no one is above the law and that elected officials should be held to a higher standard. The Governor added the longtime lawmaker should think about his position as chair of the Senate Judiciary Committee as well as the message that the case sends to a community besieged by crime related to alcohol and drugs. She expressed hoped that Martinez “does the right thing.”

https://www.apnews.com/e969ad37a9444f5f8d5b01b0f3faa135

On Friday, August 23, 2019, it was reported that Senator Richard Martinez plans to remain in office and will seek reelection next year. While attending a legislative hearing in Los Alamos, he was asked if he plans to remain in the Legislature and he responded:

“Of course. I have no intention to resign and I’m running for reelection, too.”

https://www.kob.com/albuquerque-news/new-mexico-senator-plans-to-stay-in-office-following-arrest/5468958/?cat=500

https://www.abqjournal.coNEm/1357630/embattled-senator-says-he-wont-resign.html

NEW MEXICO POLITIC’S WITH JOE MONAHAN

Long time political blogger Joe Monahan in his August 16, 2019 blog post had this to say about Senator Richard Martinez defiance:

“ … [I] t’s not certain that Martinez will face a primary challenger.

Martinez’s exaggerated narcissism in the face of disgrace seems not to bother any of them one bit. Will it bother his district enough to generate an able opponent? Or will we see the Governor, who says elected officials like Martinez must be held to a higher standard, give him the pen she uses to sign the next piece of DWI legislation?”

http://joemonahansnewmexico.blogspot.com/

COMMENTARY AND ANALYSIS

As the old saying goes “power is intoxicating”. Political power and influence can become so intoxicating that it often makes one believe that they are above the law and that they should not be held to the same standards as everyone else. Senator Martinez does not even issue any statement of regret nor any sort of an apology to his constituents.

Senator Richard Martinez has now shown just how intoxicated with power he has become when he does not do the right thing, refuses to resign and in the same breath goes on to declare that he is running for reelection. At a bare minimum, Senator Martinez should be removed immediately as the Chairman of the Judiciary Committee.

There is no doubt that former Judge Richard Martinez during his 14 years as a magistrate judge, had many charged with DWI who went before before him. He also knows the that the Code of Judicial Code would have made him resign as a magistrate in that the code makes it clear he was held higher standard and was required to avoid the appearance of impropriety. It is common knowledge that when a person is arrested for the 1st time, it is usually not the first time they have driven drunk.

As a State Senator, he is also held to a higher standard.

Senator Martinez has now plead “not guilty” to the charges and says he is running for another 4-year term. Martinez like everyone else is entitled to the presumption of innocence until proven guilty and due process of law. As a retired magistrate judge, Martinez knows full well how serious the charges are and what the right thing he should do, which is to resign, but he will not.

Given his failure to pass a sobriety test and the video of his statements in the hospital, his due process of law will in all likely result in a conviction or a guilty plea to the charges and he should resign then. If he does not resign, his constituent’s need to sentence him to retirement come election time.

It would be the right thing to do.

On Wednesday August 21, 2019 , the administration of Governor Michelle Lujan Grisham announced it has entered into settlement agreements with 2 more New Mexico behavioral health providers. Originally, there were 15 nonprofit mental illness and drug addiction providers that provided services throughout the state.

The providers had their Medicaid funding frozen in 2013 by the previous Republican Governor based on alleged fraud and over-billing. New Mexico’ system for treating mental illness and drug addiction was seriously undermined by the actions of the previous Republican administration.

The latest settlements bring the number of mental health providers that have settled with the state to 5. The Lujan Grisham administration is moving forward to ending long-running lawsuits that have cost the state millions of dollars. There are still other lawsuits pending.

TWO SETTLEMENTS ANNOUNCED

One of the providers, Team Builders Counseling Services, will receive more than $1.9 million from the state. Team Builders was one of the state’s largest behavioral health providers. It operated in 23 counties and employed upwards of 400 workers. As part of the settlement, the state agreed to allow Team Builders to resume operations in the state and agreed to expedite the process for resumption of providing services.

The second settlement is with Counseling Associates. The state has agreed to pay more than $173,000 in damages.

In announcing the settlements Human Services Secretary David Scrase had this to say:

“New Mexico deserves and needs stability in our behavioral health network. … These settlements reflect a shared commitment to rebuild what was lost.”

https://www.abqjournal.com/1356618/two-more-behavioral-health-providers-settle-claims-against-nm.html

COMMENTARY AND ANALYSIS

Both settlements contain the standard provision found in settlements entered into by state government agencies that “neither the state nor the providers” admit any liability or fault. This no doubt also helped the previous Republican Administration save face by not being force to admit the false and heavy handed approach it took to destroy all the non profits that allowed them to bring in Arizona providers. The settlements reflect good faith negotiations to end the litigation to avoid prolong litigation costing thousands.

There are 6 behavioral health nonprofits that still have pending claims under a consolidated lawsuit in the Santa Fe First Judicial District Court. The State’s Human Services Department and the Risk Management Department are working with the other nonprofit providers that filed lawsuits against New Mexico. There is no doubt that settling these cases is critical to attempt to rebuild the state’s system for treating mental illness and drug addiction.

One of the cruelest things that former Republican Governor “She Who Shall Not Be Named” did was when she ordered an “audit” of mental health services by nonprofits in New Mexico based on questionable information. The audit eventually devastated New Mexico’s behavioral health system.

In June 2013, under the direction of the former Republican Governor, the Human Services Department (HSD) cut off Medicaid funding to 15 behavioral health nonprofits operating in New Mexico. In 2014, more than 160,000 New Mexicans received behavioral health services, with most of those services funded by Medicaid, according to the Human Services Department.

After the audits were completed, the former Republican Administration said that the outside audit showed more than $36 million in over billing, as well as mismanagement and possible fraud. Under the orders of the Republican Governor, Human Services Department agency brought in 5 Arizona providers to take over from New Mexico providers.

In early 2016, following exhaustive investigations, the Attorney General cleared all 15 of the healthcare providers of any wrongdoing and exonerated all of them of fraud. Even though the NM Attorney General found no fraud and cleared the nonprofits of fraud, the damage had been done to the nonprofits. With the Medicaid funding freeze, many of the 15 nonprofits could not continue and just went out of business leaving many patients without a behavioral health service provider. Lawsuits against the state were initiated by the mental health care providers.

Three of the five Arizona providers brought in by the previous Republican Administration in 2013 to replace the New Mexico nonprofits pulled out of the state. New Mexico’s mental health system is still struggling to recover.

https://www.abqjournal.com/749923/third-arizona-behavioral-health-provider-to-pull-out-of-state.html

The former New Mexico Republican Governor never understood the need for mental health services. The mental health care providers were easy targets for her conservative anti government philosophy to freeze Medicaid funding to bring 15 nonprofits to their knees and forcing them out of business. To the former prosecutor, the answer was always increasing penalties and incarceration.

It has never been fully reported on how the 5 Arizona Heath Care providers were selected to replace the New Mexico nonprofits. It has also never been revealed to what extent the former Republican Governor was involved with the selection nor what orders her office gave in the selection of the out of state providers.

What is known is that legacy of Republican Governor “She Who Must Not Be Named” is a legacy of shame when it comes to the destruction of New Mexico’s nonprofit mental health care system. Her political wrath and cost cutting measures affected thousands of New Mexico residents in need of mental and behavioral health care services and she simply did not give a damn.

Governor Michelle Lujan Grisham served as Director of New Mexico’s Agency on Aging under Governors Bruce King, Gary Johnson and Bill Richardson. Governor Richardson elevated the position to the state cabinet. In 2004. Lujan Grisham was appointed as New Mexico Secretary of Health where she was a champion for mental health services. After 8 very long years, New Mexico has a Governor that truly understands the need for effective and critical mental and behavioral health care services.

After 8 very long years, New Mexico has a Governor that truly understands the need for effective and critical mental and behavioral health care services. The process to rebuild the state’s behavioral health care services will be a slow process that no doubt will take years.

The Local Election Act (LEA) was passed by the New Mexico Legislature in 2018. The Local Election Act provides for consolidated local elections to be conducted in New Mexico. November 5, 2019 will be the first consolidated elections for the City of Albuquerque, the Villages of Tijeras and Los Ranchos de Albuquerque, the Albuquerque Public School Board, CNM, the Albuquerque Metropolitan Arroyo Flood Control District and the Ciudad Soil and Water Conservation Board. Voters will get one ballot for the races that pertain to them when they go to vote based on their voter registration.

On Tuesday, August 27, 2019, candidates were required to file Declarations of Candidacies providing them with the opportunity to withdraw or to confirm their candidacies. Following are the candidates for office as confirmed by the Bernalillo County Clerk’s Office:

ALBUQUERQUE CITY COUNCIL

District 2

Joseph Griego
Zackary Quintero
Robert Raymond Blanquera Nelson
Isaac Benton, Incumbent
Connie Vigil
Steven Baca

District 4

Athena Ann Christodoulou
Ane C. Romero
Brook L. Bassan

District 6

Patrick M. Davis, Incumbent
Gina Naomi Dennis

District 8
S. Maurreen Skowran
Trudy E. Jones, Incumbent

ALBUQUERQUE PUBLIC SCHOOL BOARD

District 1
Yolanda M. Cordova
Madelyn A. Jones

District 2
Lauretta J. Harris
Peggy L. Muller-Aragon

District 4
Barbara E. Petersen
Laura W. Carlson
Verland O. Coker

NEW MEXICO COMMUNITY COLLEGE (CNM)

CNM Board District 2
James A. Chavez

CNM Board District 4
Annette Chavez y de la Cruz

CNM Board District 6
Layne E. McAdoo
Virginia Lopez Trujillo

Ciudad Soil and Water Conservation District –
Position 1 Supervisor
Maria Christina Young

Position 2 Supervisor
Thomas Ivey Allen

Position 5 At-Large Supervisor
Daniel F. Lyon
Daniel A. Conklin

Albuquerque Metropolitan Arroyo Flood Control Area (AMAFCA)

District 3 Director
Tim Eichenberg

District 4 Director
Ronald Duffield Brown

COMMENTARY AND ANALYSIS

Historically, city elections, school board elections, and New Mexico Community College, and Arroyo Flood Control District elections have occurred at different times throughout the year, they have been very costly and have historically low voter turn outs and at times in the single digits of the percentage of those registered to vote.
The consolidated elections should result in a significantly higher voter turnout and result in a reduced amount of money to pay for only one election as opposed to 4 or 5 elections.

Recently, APD Deputy Chief Mike Smathers of the APD Administrative Services Bureau announced to the Civilian Police Oversight Board that APD has submitted the long-anticipated proposal to the Mayor’s Office to reduce overtime spending within APD. The proposal includes capping officer’s total number of overtime hours at 25 hours per week. Currently, there is a cap of 25 hours on Chief’ Overtime pay and no cap on the other overtime police officers can work.

On January 24, 2019 , the Albuquerque Police Department (APD) said it was placing a “cap” on how much Chief’s Overtime police officers can work in a week. “Chief’s overtime” is where private businesses pay to have an officer on site but where the APD Chief selects the APD Officer to do the overtime. APD charges the business and then pays the officer. “Chief’s Overtime” has been controversial with arguments made by police oversight civilian advocates that the city is subsidizing private businesses over the best interest of areas of the city with high crime rates. Last year, more than 100 businesses took part in chief’s overtime, and for a time APD officers were allowed to work as much chief’s overtime as they wanted.

https://www.krqe.com/news/albuquerque-metro/apd-places-limit-on-hours-of-overtime-officers-can-work-each-week/1724891754?fbclid=IwAR1UMy6HjOrG4YSVsz5ofIs4klWAu1BunYm6fD–417kuSgf9m4k2rN6G_0

In the 2018-2019 fiscal year which ended June 30, 2019, APD spent over $17 million on overtime which was nearly double the $9 million budgeted. For the new fiscal year that started July 1, 2019, the overtime appropriation was increased to over $11.4 million. According to an APD spokesman, that still will not be enough.

APD POLICE OFFICER OVERTIME PROPOSAL

There are nearly a dozen different types of overtime programs within the APD. The categories where APD Officers can earn overtime include holiday work, tac-plan initiatives, training, call outs, calls for service, special events, administrative work, investigations, and court appearances. DWI check points and special events like the Balloon Fiesta and security detail for high profile dignitary visits are all events that require an extensive amount of overtime. The police union contract entitles a police officer to be paid time and a half when overtime is worked on any given day or week.

The new proposal is to mandate the standard 40 hour work and once the 40 hours are worked allow 25 hours overtime at time and a half for a total of 65 hours. The 25 hours of overtime will include chief’s overtime, training, administrative duties and calls for service. The 25 hours of overtime will not include time officers spend in court for the reason such time cannot be controlled by APD.

According to Deputy Chief Smathers, the overtime policy will rearrange training and special event schedules to be more efficient. APD’s goal is to have the overtime policy implemented by the end of August. The Mayor’s office and the City’s Chief Administrative Officer Sarita Nair must approve the plan. Once approved, it will be implemented with a special order issued by APD Chief Geier. The new overtime policy must also be reviewed by the Independent Federal Court Monitor appointed by the Federal Court to oversee the Court Approved Settlement Agreement (CASA).

Smathers said the new overtime policy does not focus on overtime accrued during calls for service or court hearings, saying they are very unpredictable. The overtime policy instead looks at the time officers spend doing administrative work, training and community and special events. The goal is to eliminate training overtime through better scheduling and shift adjustments. According to Smathers, APD is developing a data program that supervisors can review to see which officers are working the most overtime.

Deputy Chief Smathers told the Civilian Police Oversight Board:

“Previously, we looked at the time in isolation, just overtime, just chief’s overtime. … So we’re looking at it all together, because at the end of the day they’re working X number of hours in total. … That’s a lot for men and women where you’re having these expectations that the next time you come to work, you’re able to be in a pursuit, use force, make critical decisions and have critical thinking skills. … I honestly believe once we are able to fine-tune these processes, we’ll be able to switch and move over aspects of overtime spending within APD and find some savings there. … [In situations where an officer is perpetually working a lot of overtime] it will be our hope that the commander will have a discussion and speak with that person [and find out why.] … The hope is to instill a better work-life balance among the officers. ”

https://www.abqjournal.com/1355755/plan-to-reduce-apd-overtime-in-the-works.html

124 OF 250 TOP PAID CITY HALL EMPLOYEES ARE POLICE OFFICERS

At the end of each calendar year, City Hall releases the top 250 wage earners at city hall.

The list of 250 top city hall wages earners is what is paid for the full calendar year of January 1 to December 31 of any given year.

The listing of the city’s 250 top wage earners for the calendar year 2018 includes 124 APD sworn police as the top wage city hall wage earners, earning more than most department directors as well as the APD Chief and all of his Deputy Chiefs.

The list of 124 include patrol officers first class, sergeants, lieutenants, commanders the deputy chiefs, and the chief with annual pay for the year 2018 ranging from $101,000 a year up to $192,937 all under the Keller Administration.

Base yearly pay for sworn police, depending upon rank and years of experience, is $60,320 to $83,200.

The base pay does not include longevity bonus pay at the end of a year of between $2,600 to $15,600 contingent on years of experience.

Following is a breakdown of the numbers of police officers paid in excess of $100,000 in calendar year 2018 as a result of overtime paid:

6 police officers were paid $151,313 TO $192,000
24 police officers were paid $126,162.80 to $144,510.44.
27 police officers were paid $113,498.98 to $125,088.48
22 police officers were paid $109,315.89 to $112,516.27
25 police officers were paid $105,076.20 to $108,946.45
21 police officers were paid $101,633.11 to $104,987.69

POLICE OVERTIME REPORT

In January, an APD “Overtime Evaluation Final Report” was released. The report was prepared by the city with input from APD and city payroll managers. Input for the report was also given by officials from the District Court and the District Attorney’s Office regarding court appearance requirements and officer interviews and trial preparation.

The Overtime Evaluation Final Report revealed that APD overtime spending has steadily increased since 2014 at the same time the number of police officers went down. Crime in the city also increased during the same period. In 2018, there were 867 officers and nearly $14 million was spent on overtime pay. On June 17, 2019, APD announced that it has hired 116 police officers during the 2018-2019 fiscal year that ended June 30, 2019 and the department now has 981 full time sworn police.

According to the Overtime Evaluation Report, although overtime is “an inevitable part of police work,” managerial changes can help reduce costs and improve accountability. According to the report, in 2017 on average, 6% of officers stayed late during of their shifts. However, some officers stayed late more than a third of their shifts.

The report states:

“Reportedly, overtime has historically been used within APD as a morale booster. … This practice has resulted in overtime becoming almost an expectation. Understandably, given this history, management controls and accountability either do not exist or are not enforced. This lack of management is one of the key drivers of overtime costs.”

https://www.abqjournal.com/1355755/plan-to-reduce-apd-overtime-in-the-works.html

COURT APPEARANCES SOURCE OF OVERTIME

Historically, APD Patrol Officers First Class and Sergeants who work or are assigned to DWI unit or issue traffic citations are the ones that get paid an extensive amount of overtime. Under the union contract, APD Patrol Offers First Class get paid a minimum of 2 hours in overtime pay at time and a half when they appear in court on their days off for arraignment or trials, which is usually the case for DWI prosecutions.

DWI’s arrests are usually made during night shifts, but the arraignments and trials occur during the day in Metro Court entitling the officer to bill the hours of overtime per arraignment, plea, or trial. Arraignments are scheduled in Metro Court in mass and usually take no more than 15 minutes per individual person arraigned on charges. However, Police officers are required to wait prolong periods of time for cases to be called, most notably DWI cases.

The Traffic Court Arraignment program was established over 16 years ago where Assistant City Attorneys and paralegals are assigned to handle arraignments and plea agreements in traffic citation cases, thereby eliminating APD officers appearing in court on traffic cases. The Bernalillo County District Attorney’s Office also has a Metro Court Division with upwards of 22 full time Assistant District Attorneys.

MOST EGREGIOUS OVERTIME PAID

According to the listing of the 250 top paid city hall employees for 2018, APD Sergeant Simon Drobik, one of the many APD Public Information Officers, was paid $192,937 making him the number one top paid city hall employee for 2018. Drobik’s base pay is $31.50 per hour or $65,520 a year. (40 hour work week X 52 weeks in a year X $31.50 = $65,520.) APD claimed that APD Public Information Officer Simon Drobik works full-time as PIO during weekdays as his primary assignment, working 7 days a week, and he also works as a patrol officer entitling him to be paid for that position as well, holding down and being paid for two positions. Drobik regularly reported having worked more than 100 hours per week, according to his pay stubs.

https://www.abqjournal.com/1248553/ot-work-apd-spokesman-duties-lift-officers-pay-to-highest-in-city.html

EXCESSIVE OVERTIME CHRONIC PROBLEM

Police officers earning excessive overtime is nothing new. It has been going on for years and is very common knowledge. During the last 9 years, the Albuquerque Police Department has consistently gone over its overtime budget by millions. In fiscal year 2016, APD was funded for $9 million for over time but APD actually spent $13 million. A March, 2017 city internal audit of APD’s overtime spending found police officers taking advantage of a system that allows them to accumulate excessive overtime at the expense of other city departments. A city internal audit report released in March, 2017 revealed that the Albuquerque Police Department spent over $3.9 million over its $9 million “overtime” budget.

https://www.petedinelli.com/2018/03/30/apd-overtime-pay-abuse-and-recruitment-tool/

There are approximately 5,000 full time city hall employees. A review of the city’s 250 top earners in 2018 reveals that 140 are sworn police officers working for APD, mostly patrol officers first class. The 140 top wage city hall wage earners employed by the Albuquerque Police Department include patrol officers first class, sergeants, lieutenants, commanders the deputy chiefs, and the chief with annual pay ranging from $101,000 a year up to $192,937 a year.

Five (5) APD Senior Patrol Officers First Class are listed in the top 250 city wage earners for 2018 as being paid $166,692, $163,223, $160,692, $152,876 and $151,313 respectfully making them the 3rd, 5th, 7th, 10th, and 11th highest paid employees at city hall. The amounts paid in excess of $100,000 a year to patrol officers first class can be attributed mostly to overtime pay and “time and a half” paid.

(See City of Albuquerque website for full list of 250 top city wage earners).

TIME AND A HALF FOR OVERTIME IS CULPRIT

In 2018, the Keller Administration and the APD Union negotiated and agreed to a 2-year contract. The approved contract provides that the pay rate for officers with zero to 4 years of experience went from $28 to $29 an hour. Starting pay for an APD officer right out of the APD academy is $29 an hour.

Under the two-year contract, officers with 4 to 14 years of experience are paid $30 an hour. The new contract pays senior officers between $30 to $31.50 an hour. Officers with 15 years or more experience are paid $31.50 an hour. The rate for sergeants went from $32 to $35 an hour, and lieutenants pay went from $36.70 to $40.00 an hour.

Patrolman first class earning in excess of $100,000 a year can be easily explained using the $29 an hour base pay for officers with zero to 4 years of experience and starting pay for an APD officer right out of the APD academy.

The pay rate for patrol officers first class with zero to 4 years of experience is $29 an hour. A 40 hour work week is $60,320 yearly base salary calculated as follows: 40 hours a week X 52 weeks a year = 2,020 hours at $29.00 an hour = $60,320 yearly base salary.

Time and a half pay is $43.50 an hour ($29 divided by 2 = 14.50 + $28.00 = $43.50.) Overtime added is 25 hours a week X 52 weeks = 1,300 X $43.50 overtime pay an hour at time and a half per hour = $56, 550.

Base salary of $60,320 for 40-hour work week + $56,550 overtime for 25 hours a week = $116,870 total salary a year.

After the base salary is paid along with overtime paid, the city then pays longevity pay at the end of the year as follows:

For 5 years of experience: $100 will be paid bi-weekly, or $2,600 yearly
For 6 years of experience: $125 will be paid bi-weekly, or $3,250 yearly
For 7 to 9 years of experience: $225 will be paid bi-weekly, or $5,800 yearly
For 10 to 12 years of experience: $300 will be paid bi-weekly, or $7,800 yearly
For 13 to 15 years of experience: $350 will be paid bi-weekly, or $9,100 yearly
For 16 to 17 years or more: $450 will be paid bi-weekly, or $11,700 yearly
For 18 or more years of experience: $600 will be paid bi-weekly, 15,600 yearly.
(NOTE: Effective the first full pay period following July 1, 2019.)

ANALYSIS AND COMMENTARY

It is long overdue that APD places a cap on all police overtime worked. From a personnel management standpoint, when you have a select few that are taking the lion’s share of overtime, it causes moral problems with the rest. Excessive overtime paid is a red flag for abuse of the system, mismanagement of police resources and the lack of personnel. Excessive overtime for any police officer can lead to extreme fatigue, emotional burnout and reduce an officer’s alertness and response times and reflexes that can endanger lives and public safety.

When APD exceeds its overtime budget, it is to the detriment of other city departments and other city employees in that the funding must be found somewhere else to make it up, either by taking it from other departments and programs, budget cuts or cost saving measurements. APD has added 117 police officers over the last year as a result of increases in pay and an aggressive recruitment program. APD now has over 981 sworn police officers and overtime should be coming down, not going up, yet an APD spokesman is saying more overtime can be expected during the 2019-202o fiscal year that began July 1, 2019.

RECOMMENDATIONS

A complete restructuring of APD hourly wages to base salaries should be implemented. The city should do away with hourly wage and time and a half for overtime for sworn police and implement a salary structure based on steps and years of service. A system of overtime bonuses to be paid at the end of the year for accumulated increments of overtime should be implemented. Shift time to work would remain the same, but if more time is needed to complete work load, the employee works it for the same salary with no overtime and a modification of shift times for court appearances.

Salaries and step increase take away inflating overtime and motivates employees to get more done within the allotted shift or modification of shift times. Until the APD salary structure is changed, APD will always have patrol officers first class making two to four times their base salary and emotional burnout will be the norm endangering public safety.

Another option would be to implement an “on call” shift pool of officers who normally work desk duties, such as detectives, that could assist in holiday work, tac-plan initiatives, call outs, calls for service, and special events to take over from officers who have already worked a full 40 hours. The “on call” shift pool would be on a rotating basis and be mandatory for all APD sworn personnel. No overtime would be paid to the “on call” shift pool and the hours worked would be applied towards their regular 40-hour work week.

Deputy Chief Smathers saying his plan does not focus on overtime accrued during calls for service or court hearings because both are inevitable and unpredictable is disappointing and somewhat short sighted. As was noted, APD Patrol Officers First Class and Sergeants who work or are assigned to DWI unit or issue traffic citations are the ones that getting paid an extensive amount of overtime. Also, under the union contract, APD Patrol Offers First Class get paid a minimum of 2 hours in overtime pay at time and a half when they appear in court on their days off for arraignment or trials, which is usually the case for DWI prosecutions. It is short sided not to make more of an effort to get a handle and reduce the amount of overtime paid to the officers dealing with DWI and appearing in court, which are both sources of high overtime.

APD Patrol Officers First Class who handle DWI during nighttime shifts should be required to change their shift times to daytime shifts when the arraignments and trials occur to prevent overtime pay. As an alternative to DWI arraignments, the City Attorney’s Office should explore the possibility of expanding or modifying the Metro Traffic Arraignment Program with the Bernalillo County District Attorney’s Office assisting to include not just traffic citations but DWI arraignments to eliminate the need for APD officers to appear at arraignments.

CONCLUSION

The 25-hour overtime cap is a good first step. However, authorizing 65-hour work weeks as a matter of policy does not make much sense if you want to avoid extreme fatigue and emotional burnout.

It is likely given the amount of pay involved, more officers will want to work 65 hour work weeks, 40 at regular pay and 25 at time and a half. The 25-hour cap on overtime should be monthly, not weekly and an “on call” shift pool of officers should be created.

Albuquerque Democrats Mayor Tim Keller and Congresswoman Debra Harland released a joint video endorsing Democratic Albuquerque City Councilors Isaac (IKE) Benton and Pat Davis for another term to the Albuquerque City Council and newcomer Ane C. Romero in the District 4 City Council race. The joint endorsement has raised more than a few political eyebrows, especially among Democratic activists. The Debra Haaland endorsement in particular appears to be nothing more than a political payback to Pat Davis who endorsed her when she ran for congress. You can view the full video here:

https://www.facebook.com/BentonForABQ/videos/504381937059221/

In the video endorsement, both Mayor Keller and Congresswomen Haaland proclaim that Benton and Davis have been tremendous City Councilors and are in the best positions to move Albuquerque forward and stating “With the right leadership we truly can come together to be the best city we can be.” Keller has been in office for 21 months and Haaland has been in office 7 months, but they both think they know Davis and Benton have done such great jobs for the last 4 years that they need to be reelected.

IKE BENTON

Democrat Isaac (Ike) Benton is the District 2 City Councilor and was first elected to the council in 2005. Benton is a retired architect and avowed urbanist. Benton’s city council district includes a large area of downtown Central and the North Valley which leans left and is heavily Hispanic, yet he has shown more loyalty and cooperation with Republican causes than Democratic causes on the City Council. Benton ran unopposed in 2015. Democrat Isaac Benton has 4 Democratic opponents: Steve Baca (D), Joseph Griego (D), Robert Raymond Blanquera Nelson (D), Zack Quintero, (D). Connie Vigil is also running as an Independent. Nelson and Quintero have been political activists in the Democratic Party.

PAT DAVIS

Democrat City Councilor Pat Davis was elected to the Albuquerque City Council on October 6, 2015 to represent District 6. District 6 encompasses the International District, Mesa Del Sol, Nob Hill, Southeast Heights, and the University of New Mexico. Last year, Davis ran unsuccessfully for US Congress in the First Congressional District. Davis withdrew from the race when he polled at 3% and could not raise the money to run a viable campaign.

Before Davis withdrew from the congressional race, Davis had no problem accusing the then Democrat front runner former US Attorney for New Mexico Damon Martinez of being a “racist”, which was an absolute lie. Pat Davis endorsed Debra Haaland who went on to become elected to congress. Democrat Pat Davis has only one opponent: Gina Naomi Dennis a progressive Democrat, who is an attorney, a neighborhood activist and was a Bernie Sanders delegate to the Democratic Party National Convention in 2016.

District 4 Race

District 4 has 4 candidates who qualified for the ballot and running to replace Brad Winter. Those candidates are: Brook L. Bassen, Athena Ann Christodoulou, Ane C. Romero, Hailey Josselyn Roy. Winter has endorsed the sole Republican running who is Brook L. Bassen. The endorsement of Ane C. Romero was somewhat muted but none the less was made over other Democrats.

COMMENTARY AND ANAYSIS

“We stand with Ike” proclaimed Keller and Haaland in a joint endorsement of Benton. Hopefully, Keller and Haaland will stumble and fall flat on their faces with their endorsements of Ike Benton and Pat Davis. This is what you call political payback given the support Benton and Davis gave to Keller and Haaland when they were running for office themselves. Too bad. There are 3 very qualified and deserving Democrats running against Ike Benton and one solid progressive Democrat who is running against Pat Davis.

Both Keller and Haaland consider themselves “progressive democrats”. Their endorsements of Benton and Davis are ill advised and should have never been made, but they obviously want to act as “king makers” over the other Democrats. Keller in particular has now alienated two potential Democratic City Councilors whose votes he will need in the long run if his chosen two of Davis and Benton are not reelected.

DYNAMIC DUO VOTING LIKE REPUBLICANS

Isaac Benton and Pat Davis have acted more like Republicans and not the progressives they proclaim to be within the Democratic Party. They both have voting records that are more Republican than Democrat with their support of the disastrous ART Bus project and supporting final adoption of the ABC-Z comprehensive plan, now known as the Integrated Development Ordinance (IDO).

To be blunt, both Isaac Benton and Pat Davis need to voted out of office and be replaced with true progressive democrats. Davis has never apologized to former US Attorney Democrat Damon Martinez for calling him a racist when he ran for congress. Debra Haaland for her part had no problem with Davis calling Damon Martinez a racist and tolerated it and allowed it on her campaign letter head. Keller now ignores Davis calling Martinez a racist even though he hired Damon Martinez as a policy writer for the Albuquerque Police Department.

Both Davis and Benton proclaim to be “progressive democrats”. However, the Benton and Davis City Council voting records say otherwise. During the past four years, Albuquerque has suffered from record breaking high crime rates and the ART bus project without either Benton nor Davis even trying doing much to improve things, at least not until now when they want to be elected again.

There are at least 8 egregious specific votes Isaac Benton’s and Pat Davis’s that reveal the true voting record as going against core Democratic principles:

1. Councilors Benton and Davis voted repeatedly for the disastrous ART Bus project that has destroyed the character of Route 66. Both refused to advocate to put the ART Bus project on the ballot for public approval. Benton and Davis 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. ART has a negative impact on Central resulting in several businesses going out of business. Many central businesses and Nob Hill businesses, no longer exist because of the ART Bus Project.

2. Both Benton and Davis voted to use $13 million dollars in revenue bonds to pay for the ART Bus project. The revenue bonds were not voted upon by the public. It was reported that the Albuquerque City Council borrowed over $63 million dollars over a two-year period to build pickle ball courts, baseball fields and the ART bus project down central by bypassing the voters. The $65 million dollars was borrowed with the Albuquerque City Councilors voting to use revenue bonds as the financing mechanism to pay for big capital projects.

https://www.abqjournal.com/919263/revenue-bonds-find-favor-in-abq.html

3. The Albuquerque City Council plays a crucial oversight role of the Albuquerque Police Department (APD) including controlling its budget. Benton and Davis did nothing when it comes to Albuquerque Police Department (APD) reforms and never challenged the previous Administration and the former APD command staff in any meaningful way demanding compliance with the Department of Justice (DOJ) consent decree reforms. Each time the Federal Court appointed Monitor presented his critical reports of APD to the City Council, Benton and Davis remained silent. Both declined to demand accountability from the Mayor and hold the APD command staff responsible for dragging their feet on the reforms. Both Benton and Davis have failed to attend a single one of the federal court hearings on the Court Approved Settlement Agreement (CASA).

4. Both Benton and Davis voted for the city ordinance amendments requiring equal pay for woman but failed to demand more. The amendments to the equal pay for woman ordinance sounded good and look good on paper but accomplished very little. The truth is that the equal pay for woman ordinance only applies to city contracts and those who do business with the city. The ordinance is voluntary and gives preferential treatment on city contracts to those who voluntarily comply. The equal pay for woman ordinance should apply to all businesses licensed to do business in Albuquerque, it should be mandatory for all businesses and enforced by city planning that issues business licenses and could be made so by the city council.

5. When he served on a task force to overhaul Albuquerque’s public fiancé laws, Pat Davis declined to advocate meaningful changes to our public finance laws making it easier for candidates to qualify for public finance. The only change both Davis and Benton agreed to was increasing the amount of money candidates get and not the process of collecting the donations to qualify and not expanding the time to collect qualifying donations. The lack of changes to the public finance laws favors incumbents like Davis and Benton and they have taken full advantage of it.

6. Davis advocated for enactment of the Healthy Workforce ordinance by voters which would have mandate the pay of sick leave by employers and was always there for a photo op with those organizations who pushed to get it on the ballot. However, both Benton and Davis never demanded the City Attorney’s office enforce the existing Albuquerque minimum wage ordinance, even when workers were forced to sue their employers. Davis and Benton claim to be in favor of increasing the minimum wage, but they have never demanded the Mayor nor the City Attorney to enforce the current city ordinance enacted by voters with a 2 to 1 margin.

7. On July 2, 2018 Democrat Mayor Tim Keller vetoed the $2.6 million economic development package that would help Topgolf to construct a $39 million entertainment complex at the site of the former Beach Waterpark. Benton and Davis went along with the City Council voting 8-1 to give the incentives after a 9-0 veto override Keller’s veto of a resolution expressing the city councils support. A few weeks later, Both Benton and Davis again voted to override Democrat Mayor Keller’s veto of the funding. Rather than give the new Democrat Mayor the benefit of the doubt, Benton and Davis voted to overturn the veto, but never once voted to overturn a veto of the previous Republican Mayor.

https://www.abqjournal.com/1192145/keller-vetoes-topgolf-economic-development-package.html

8. The most egregious votes by Benton and Davis was that they 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 was 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. Benton, a retired architect knew better but refused to intervene on behalf of neighborhood interests.

CONCLUSION

What people should be sick of are Democrats acting and talking like Republicans especially after they get elected to positions like City Council and Mayor and arguing that they are being “nonpartisan”. Both City Councilors Isaac Benton and Pat Davis will say that they have done a great job as City Councilors by acting “non-partisan” and they needed to cooperate with Republicans to get things done, even though Democrats now hold a majority of 6-3 on the City Council and even though the Mayor is a Democrat.

There is a significant difference between cooperating and working with other elected officials from the opposite party and then being hypocritical and going against your own basic political philosophy of what you believe to be true and then turning around and acting and voting against that what you claim to believe in. What would be disappointing is if Davis and Benton are elected again saying they are Progressives Democrats when in fact they vote like conservative Republicans.

Mayor Tim Keller and Congresswoman Debra Haaland should have kept their egos desiring to be “king makers” and their endorsements to themselves. Keller and Haaland have now alienated the other very qualified Democrats running and their supporters they both will need for any reelection bid.