On September 1, the New Mexico Environment Department’s Occupational Health and Safety Bureau (OHSB) announced it has  cited the City of Albuquerque and Consolidated Builders of NM, LLC for workplace safety issues related to asbestos exposures at the Women’s Shelter within the Gateway Center homeless shelter. Consolidated Builders of NM, LLC is the private company contracted by the city to do the remodeling of the Gibson medical center for the Gateway Homeless shelter.

The OHSB investigation found that the City of Albuquerque and Consolidated Builders violated the New Mexico Occupational Health and Safety Act by demonstrating indifference for the safety and health of employees and exposed employees to asbestos between April 11, 2022 and March 9, 2023.  One of  the most damning finding made by OSHA was that city staff  raised safety concerns multiple times but the Gateway remodeling project was politically driven with stop orders from the City’s Risk Management Division totally ignored to allow work to continue on the project.

The city was issued a $761,112 fine for five Willful-Serious citations and two Serious citations. Consolidated Builders was issued a $331,475 fine for eight Willful-Serious citations and one Serious citation. The fine levied against the City of Albuquerque is the largest fine ever filed against the city by OHSB.

It was on March 7, 2023, the New Mexico Environment Department’s Occupational Health & Safety Bureau (OHSB) received reports of possible employee exposure to asbestos at the City of Albuquerque’s Gateway Center.

On March 9, 2023, OHSB opened an investigation into the allegation as required by the Occupational Health and Safety Act and its corresponding regulations. The Act and regulations also require OHSB to issue citations for violations and complete an inspection report summarizing the findings of an investigation within six months of an incident.

Prior to OHSB issuing the citations, the Keller Administration acknowledged responsibility for mistakes and notified individuals they identified, including  city leaders, who had visited the Gateway Women’s Shelter construction area within the Gibson Health Hub between April 11, 2022 and March 9, 2023 and were told of their potential exposure to asbestos.  Individuals who believed they were exposed were told to contact their medical provider and ask for guidance.

CITATIONS AND FINES

The city was issued a $761,112 fine for five Willful-Serious citations and two Serious citations. Consolidated Builders was issued a $331,475 fine for 8  Willful-Serious citations and 1 Serious citation.

The “willful-serious citations” to the City of Albuquerque include:

• Failing to conduct asbestos work within a regulated area;
• Failing to ensure that an exposure assessment was conducted at the beginning of the project  before potential exposures could occur;
• Failing to ensure that an asbestos “competent person” was present to supervise certain types of work;
• Failing to determine the presence, location, and quantity of asbestos-containing material at the Gateway Women’s Shelter prior to work beginning; and
• Failing to ensure that all waste material was properly contained and disposed of.

The “serious citations” to the City of Albuquerque include:

• Failing to communicate the hazards associated with exposure to respirable asbestos fibers to employees;
• Failing to designate a “competent person” with the qualifications and authorities to ensure worker safety.

The “willful-serious citations” to Consolidated Builders include:

• Failing to notify other employers that asbestos work was being conducted;
• Failing to conduct asbestos work within a regulated area;
• Failing to ensure that an exposure assessment was conducted at the beginning of the project;
• Failing to dispose of asbestos materials in a leak-tight container;
• Failing to use wet methods to clean up asbestos-containing materials;
• Failing to communicate the hazards associated with exposure to respirable asbestos fibers to employees;
• Failing to train employees on properly performing asbestos removal;
• Failing to protect employees from the release of asbestos when removing floor tiles.

The “serious citation” to the Consolidated Builders include:

• Failing to implement a respiratory protection program for employees using respirators.

The inspection citations and reports can be viewed here.

PURCHASE AND REMODELING FOR 24-7 HOMELESS SHELTER

It was on Tuesday, April 6, 2021, that Mayor Tim Keller held a press conference in front of the Gibson Medical Center, formerly the Lovelace Hospital, to officially announce the city had bought the massive 572,000 square-foot complex for $15 million in order to convert it into a 24-7 homeless shelter to assist an estimated 1,000 homeless residents and connect them to other services intended to help secure permanent housing. The complex has a 201-patient bed capacity and includes large lobby common areas, administrative offices and physician offices, treatment rooms, emergency admittance areas and operating areas and  a large 350 capacity auditorium. The facility once remodeling is completed is intended to serve all populations of men, women, and families. Further, the city wants to provide a place anyone could go regardless of gender, religious affiliation, sobriety, addictions, psychotic condition or other factors.

Since the April 6, 2021 purchase of the Gibson Medical Center for conversion to the Gateway homeless shelter, completion of the project has experienced delay, after delay after delay. The delays have included neighborhood protests, a civil lawsuit and zoning battle and asbestos discovery requiring remediation. The first phases of the Gateway Center, including 50 beds for women, were recently completed. Construction costs for phase one was $7 million.

In March of this year asbestos was discovered in the construction zone. A month later, an inspection from the city Planning Department’s Building Safety Division found that asbestos removal protocols had not been correctly followed during construction of the overnight beds area.

In April, the city announced that the area had been abated, after sealing off the 4,000-square-foot area on March 9 following positive asbestos testing results. The area makes up about 20% of the full area that was remodeled.

CITY ADMITS VIOLATIONS, DISCIPLINARY ACTION TAKEN

Under requirements of the New Mexico Occupational Health and Safety Act, the City of Albuquerque and Consolidated Builders have 15 business days after receiving the citation to either pay the penalty and provide OHSB with certification of corrective action, or to contest the citation with the Occupational Health and Safety Review Commission.

On September 1, the Keller Administration sent out a news release concerning the citations. In the statement, the city admits they did not follow the law in removing the asbestos. Albuquerque’s General Services Director John Craig said this in the news release:

“We know that removal procedures were not correctly followed for a small section of the project, and we have corrected these issues on all other sections and are ensuring ongoing construction is in compliance.”

According to the news release, the city attorney is currently evaluating the citations. The news release did not say whether the city would dispute the fine, just that city attorneys were looking over the citations.

The city’s project manager received disciplinary action and managers were given more training.

The links to quoted news sources are here:

OHSB Investigation of City of Albuquerque Gateway Center at the Gibson Health Hub 

 https://www.krqe.com/news/albuquerque-metro/osha-fines-city-of-albuquerque-for-gateway-center-asbestos/

 https://www.kob.com/new-mexico/city-of-albuquerque-construction-company-issued-citations-for-exposing-workers-to-asbestos/

https://www.koat.com/article/city-of-albuquerque-fined-for-exposing-workers-to-asbestos/44978130

https://www.abq.news/stories/breaking-city-of-albuquerque-and-consolidated-builders-fined-over-1m-for-asbestos-exposure-at,42673?newsletter=42642

https://www.abqjournal.com/news/city-of-albuquerque-contractor-cited-for-exposing-workers-to-asbestos-at-gateway-center/article_f21b64ae-491e-11ee-902c-9f6f5ebc1c54.html#tncms-source=home-featured-7-block

KRQE NEWS 13 INVESTIGATION REPORT REVISITED

It was on April 25, 2023 that KRQE News 13 Investigation Reporter Larry Barker reported on the Keller Administration’s discovery of asbestos at the new Gateway renovation construction site.  Barker reported how high-ranking city officials and project staff violated safety regulations jeopardizing the health and safety of employees because the city did no testing prior to demolition work.

Contractors doing work on the Gateway Center’s second floor used a mechanical scraper to rip out old tile flooring containing asbestos. The debris was swept up with brooms and thrown in the trash. Workers were not wearing Personal Protections Equipment (PPE)  and all this was done while the HVAC system was still running, possibly transporting the dust through the building where people could have easily breathed in the toxic lung cancer causing materials.

The Chief of New Mexico’s Occupational Health and Safety Bureau Bob Genoway said he was stunned the city did this.  Genoway said this:

“To willfully violate an OSHA standard is, is you know, it’s almost it’s almost hard to understand why somebody would do that. You know, we may not get to the answer of why that was done.”

PROJECT POLITICALLY DRIVEN

Barker also reported on the coverup of the cleanup efforts resulting in delays of completion of the Gateway Homeless Shelter.  The most damning finding made by OSHA was that city staff had raised safety concerns multiple times but the Gateway remodeling project is politically driven with stop orders from the City’s Risk Management Division ignored.

Following is the report edited and rearranged for brevity:

Internal city documents obtained by KRQE News 13 show how Albuquerque officials involved with the Gateway renovation blatantly violated federal health and Safety regulations putting lives at risk. …  

Breathing asbestos fibers can be deadly, so only specially trained and certified work crews are allowed to operate in asbestos remediation areas. Full body suits, respirators, gloves, and boots are required. Asbestos debris must be bagged and disposed of in a hazardous waste repository.

 According to a city timeline, last year contractors doing renovation work on the Gateway Center’s second floor used a large mechanical scraper to rip out and shred old tile flooring containing asbestos. The debris was swept up with brooms and thrown in the trash. There were no worker safeguards, no notifications, no protective gear, no respirators, and no regard for the law.

 An internal city document noted:

 “There was no pause on the construction site with the reasoning that Risk (Management) does not have jurisdiction to shut down construction sites.” 

 Renovation construction was halted only briefly and then resumed.

On March 9, 2023, test results confirmed the presence of asbestos in the 2nd-floor work area. OHSB Investigators directed the city to halt all work in the asbestos area.

OHSB Safety Compliance Officer Lorenzo Montoya said this:

“It is imperative that a regulated area be established immediately. The area must be secured from unauthorized persons and demarcated immediately.”

The Occupational Health and Safety Bureau (OHSB) initiated an investigation [and it found as follows] :

 “Staff have raised safety concerns multiple times but the project is politically driven and two work stop orders from the City’s Risk Management  Division have been ignored. …

 No inspection or testing was done prior to demolition work. Workers are not wearing PPE and are scraping, and grinding. The HVAC system is still running and may have transported dust through the building.

On February 28, 2023, Albuquerque’s Risk Management Division informed Gateway Project Manager Jesse Valdez that “There is high possibility that there is asbestos in the areas of the Gibson Health Hub that are under construction. All work in these areas must cease until an asbestos test has been performed.”

New Mexico’s Occupational Health and Safety Bureau Chief Bob Genoway said this:

“We consider (these) to be serious allegations that warranted an OSHA investigation. … Bottom line is we’re trying to make sure that employees don’t become seriously ill or injured from hazards in the workplace. Asbestos is a recognized, serious hazard in the workplace and can cause serious diseases.”

…  .”

 Links to quoted news sources are here:

https://www.krqe.com/news/larry-barker/albuquerques-gateway-center-the-danger-zone/?ipid=promo-link-block1

https://www.krqe.com/news/larry-barker/behind-the-story-larry-barker-investigates-the-gateway-centers-asbestos-problem/

COMMENTARY AND ANALYSIS

Since the April 6, 2021 purchase of the Gibson Medical Center for conversion to the Gateway homeless shelter, completion of the project has experienced delay, after delay, after delay. The plague of delays has included neighborhood protests, a civil lawsuit and zoning battle and asbestos discovery requiring remediation. There is little to no doubt that all the delays in completing the Gateway 24-7 homeless shelter fall squarely on the shoulders of Mayor Tim Keller because of his personal involvenent and the way he and his administration have handled the project.

The City of Albuquerque and the remodeling contractor being fined over $1 Million  for asbestos exposure at the  gateway Center Homeless Shelter and the Keller Administration’s intentional conduct  is yet another sign  of  ineptness and  incompetency by Mayor Tim Keller and his administration.

There are 3 specific areas of incompetency and ineptness that can be identified with the Gateway Homeless shelter that fall squarely on the shoulders of Mayor Tim Keller :

The first was the actual selection and purchase of the massive 572,000 square-foot Gibson Medical Center complex, formerly the Lovelace Hospital for $15 million in order to convert it into a 24-7 homeless shelter.  The massive complex purchased has a 201-bed capacity, numerous physician offices, treatment and operating rooms, administration offices, a large lobby area as well as 250-to-300-person auditorium.

The city implemented a site selection process that originally identified 3 appropriate sites. On February 27, 2020 the City of Albuquerque released a report and analysis announcing the top 3 preferred locations. The 3 locations were:

1. University of New Mexico (UNM) land next to the state laboratory, near Interstate 25 and Camino de Salud
2. Coronado Park at 3rd Street and Interstate 40
3. The former Lovelace hospital on Gibson

The UNM property was Keller’s first preferred choice and Keller took it upon himself to do a press conference to promote his selection and pressure the UNM regents to allow it.  When UNM balked at the idea, Keller quickly move to purchase the Gibson Medical Center.

Keller failed to even try to get input from the surrounding neighborhoods. Keller  did not  even attempt to reach a consensus with neighborhood associations and major protests occurred. Neighborhood protests erupted over Keller’s selection of the medical center. Mayor Tim Keller mishandled the site selection process for the shelter, especially with his shaming, guilt trip press conference to force UNM regent’s hand, and his failing to build true consensus on what the city should do and where the shelter should go.

The second sign of ineptness and incompetence by Mayor Tim  Keller  that contributed to the delays is that Mayor Keller and his administration ostensibly did not know and did not do due diligence to determine if the Gibson Medical facility had the proper zoning to allow a 24-7 overnight shelter. The commercial property was purchased by the city “as is”. What Keller and company found out only after the purchase was that the facility and the area was zoned for a hospital and that a conditional use for a 24-7 overnight shelter was required under the city’s zoning laws known as the Integrated Development Ordinance (IDO).  Rather than taking steps to rely on the existing zoning as a hospital and use the facility as a mental health treatment and substance abuse hospital facility for the homeless, the building sat vacant as to city usage and the city is still scrambling to the get the shelter fully operational up and and running.

The third sign of ineptness and incompetence by Mayor Tim Keller was the discovery of asbestos on the property that required remediation.  It is difficult to understand how  the City Planning Department, the Municipal Development Department or the Environmental Health Department did not realize that in the 1950s, when the original Lovelace Hospital was built,  asbestos was commonly used in building materials like insulation, ceiling tiles, and flooring.  What is  very disturbing is that the Occupational Health and Safety Bureau (OHSB) initiated an investigation after receiving complaints that allege “No inspection or testing was done prior to demolition work” and the city covered it up. The most obvious explanation for city departments failing  to act is that the Gateway Homeless shelter is one of Mayor Keller’s legacy projects and he likely exerted great pressure on his department heads to get the project done and be damned OSHA requirements, hence the finding that the project was politically driven.

FINAL COMMENTARY

On April 21, the city announced that the asbestos abatement had been completed. That may be true for the area 4,000 square foot area that was  being remodeled for the new Gateway service area, but that area is a fraction of the massive 572,000 square-foot complex.

It is more likely than not  that the rest of the 572,000 square-foot complex is riddle with asbestos.  Any future remodeling will require asbestos remediation jacking up the costs by millions of dollars. In otherwards, Mayor Tim Keller had the city buy a money pit of endless expenditures needed for asbestos remediation.

This coming from a Mayor who was a State Auditor and who created his reputation as a white knight combating “waste, fraud and abuse” in government spending.

The Fourteenth Amendment, Section 3 of the United States Constitution provides:   

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

ABC NEWS ARTICLE

On August 25, 2023, ABC News published the following news article written by reporters Hannah Demissie and Laura Gersony entitled “14th Amendment, Section 3: A new legal battle against Trump takes shape” “Efforts to disqualify Trump from state ballots are starting to materialize.”  What makes the news article remarkable is that it reports on a legal theory that is being advanced by Republican conservative scholars. It also reports on a New Mexico connection. For that reason the article with edits and highlighting quotations  is being posted here:

“Former President Donald Trump‘s legal battles are piling up: in Washington, Georgia, New York  and the list goes on. But even if all of those cases work out in his favor, advocates say a new legal challenge could still sideline him.

Separate from the criminal cases, over the past few weeks a growing body of conservative scholars have raised the constitutional argument that Trump’s efforts to overturn the results of the 2020 election make him ineligible to hold federal office ever again. That disqualification argument boils down to Section 3 of the U.S. Constitution’s 14th Amendment, which says that a public official is not eligible to assume public office if they “engaged in insurrection or rebellion against” the United States, or had “given aid or comfort to the enemies thereof,” unless they are granted amnesty by a two-thirds vote of Congress.

Advocacy groups have long argued that Trump’s behavior after the 2020 election fits those criteria. The argument gained new life earlier this month when two members of the conservative Federalist Society, William Baude and Michael Stokes Paulsen, endorsed it in the pages of the Pennsylvania Law Review [where they wrote]:

“If the public record is accurate, the case is not even close. He is no longer eligible to the office of Presidency.”

Since then, two more legal scholars,  retired conservative federal judge J. Michael Luttig and Harvard Law Professor Emeritus Laurence Tribe,  made the same case in an article published in The Atlantic  [and they wrote]:

“The disqualification clause operates independently of any such criminal proceedings and, indeed, also independently of impeachment proceedings and of congressional legislation. … The clause was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.”

The argument [was made] on the Republican presidential debate stage in Milwaukee [by Arkansas Gov. Asa Hutchinson when he said, eliciting a mix of cheers and boos, from the audience]:

“Over a year ago, I said that Donald Trump was morally disqualified from being president again as a result of what happened on January 6th. More people are understanding the importance of that, including conservative legal scholars. … I’m not going to support somebody who’s been convicted of a serious felony or who is disqualified under our Constitution.”

Baude and Paulsen maintain their theory is “self-executing.” They say that means that public elections officials don’t need special permission from lawmakers to disqualify Trump from the ballot.  If they believe the argument is valid, they can disqualify potential candidates on their own.

Not only that, the scholars argue, the election officials are legally required to do so.  Bode and Paulsen wrote:

“No official should shrink from these duties. It would be wrong — indeed, arguably itself a breach of one’s constitutional oath of office — to abandon one’s responsibilities of faithful interpretation, application, and enforcement of Section Three”.

Alternatively, ordinary citizens could file challenges on the same grounds with state election officials themselves.

Either scenario is almost certain to face legal and political blowback, and the argument could end up before the U.S. Supreme Court. The most immediate hurdle for those disqualification efforts might be timing as the legal challenges must be brought during specific time periods that vary depending on the state where they are brought.

PLANS MATERIALIZE AT STATE LEVEL

Bryant “Corky” Messner, a lawyer who lives in New Hampshire, became the first person to announce concrete plans to do just that.   Messner was endorsed by Donald Trump when he ran for a New Hampshire’s U.S. Senate seat in 2020. Now, he says that as a veteran and a graduate of West Point, his civic duty compels him to try to keep Trump off the ballot.  Messner said this:

“I really don’t view myself as turning on Trump, as odd as that sounds.  I love this country. I’ve served this country. I’ve taken an oath to this country. My sons are serving right now and I believe someone’s got to step up to defend the Constitution.”

Messner first announced his plans on a local radio show. … He says he is still doing initial legal due diligence on the topic and finding a lawyer to bring the case. He plans to finance the legal challenge himself and through his own personal network.

New Hampshire’s Secretary of State Office confirmed to ABC News that Messner met with Secretary of State David Scanlan to discuss Section 3 of the 14th Amendment.  The communications director for Scanlan told ABC News

“Secretary Scanlan will be conferring with the New Hampshire Attorney General and other legal counsel on this issue; however, he believes any action taken under this Constitutional provision will have to be based on Judicial guidance.”

A NEW MEXICO CONNECTION

Citizens for Responsibility and Ethics in Washington (CREW), another legal advocacy group, is also pursuing a push to this effect. Last September, CREW was successful in its effort to remove a New Mexico County Commissioner Couy Griffin from his post due to his participation in the January 6 attack on the U.S. Capitol.

A district judge in New Mexico barred Otero County commissioner and “Cowboys for Trump” founder Couy Griffin, citing a clause in the 14th Amendment that prohibits those who have engaged in insurrection from serving. Griffin was convicted of a misdemeanor trespass charge. The judge’s ruling was the first time in 150 years that the provision has been used to disqualify an official and the first time that a court has ruled the events of January 6 were an “insurrection.”

Griffin was arrested on January 8, 2021, on a federal misdemeanor trespassing charge related to the January 6, 2021 insurrection. Griffin was convicted of the charge on March 22 and sentenced on June 17 to 14 days’ time served, ordered to pay $500 restitution, pay a $3,000 fine, complete community service and one year of supervised release.

Following Trump’s announcement that he would make a third bid for the White House, CREW released a statement saying it would work to ensure that Trump is disqualified from ever holding office again.  A statement from CREW said this:

“We warned him that should he decide to run again, we would be taking action to ensure the Constitution’s ban on insurrectionists holding office is enforced.  Now we will be. Trump made a mockery of the Constitution he swore to defend, but we will see that it is defended.”

In an interview with ABC News, a CREW official said its focus now is doing whatever possible to keep Trump off the ballot. CREW Executive Vice President and Chief Counsel Donald Sherman said this:

“I will say we are focused on winning. We are not focused on getting our name in the paper … We are focused on bringing the strongest cases possible in order to win and hold the former President accountable. And we are making the strategic choices in order to effectuate that.”

SEPTEMBER 6 NEWS UPDATE:

On September 6  CREW  in Washington  filed a lawsuit to bar former former President Trump from the primary ballot in Colorado, arguing he is ineligible to run for the White House again under the 14th Amendment of the US Constitution.  The complaint was filed on behalf of six Republican and unaffiliated Colorado voters by the group. It will jolt an already unsettled 2024 primary campaign that features the leading Republican candidate facing four separate criminal cases. Liberal group is demanding  that states’ top election officials bar Trump under the clause that prohibits those who “engaged in an insurrection or rebellion” against the Constitution from holding higher office.  The litigation is the first by an organization with significant legal resources. It may lead to similar challenges in other states, holding out the potential for conflicting rulings that would require the Supreme Court to settle. Colorado’s secretary of state, Democrat Jena Griswold, said in a statement that she hoped “this case will provide guidance to election officials on Trump’s eligibility as a candidate for office.”  The lawsuit contends the case is clear, given the attempt by then-President Trump to overturn his 2020 election loss to  President Biden and his support for the assault of the U.S. Capitol on Jan. 6, 2021.

https://abcnews.go.com/Politics/wireStory/lawsuit-contends-constitutions-insurrection-clause-bars-trump-running-102966637#:~:text=DENVER%20%2D%2D%20A%20liberal%20group,have%20supported%20an%20%E2%80%9Cinsurrection.%E2%80%9D

Free Speech For People, an organization that unsuccessfully challenged the candidacies of several members of Congress in 2022 under the disqualification clause of the 14th Amendment, also plans to take similar actions to attempt to prevent Trump from running for office.

The organization plans to pursue two different paths. The first path involves sending a letter to all 50 secretaries of state asking them to exercise their authority to rule that Trump is disqualified under Section 3 of the 14th Amendment. The second path, when the timing is right, they said, is to file legal challenges to Trump’s eligibility for office using state law procedures where available.

Ron Fein, a lawyer involved in the organization’s effort to prevent Trump from holding office, told ABC News that they are prepared to take on the former president. Fein said this:

“We’re prepared to challenge Trump’s candidacy in multiple states. We’re not going to tell him which states and when in advance. … We have assembled top-notch legal teams and are working with voters in these multiple states and partners outside as well.”

Trump’s campaign team is preparing for the challenges, telling the Washington Post in April the former president is being targeted. Trump campaign spokesman Steven Cheung said in a statement to the Washington Post  said this

“What these undemocratic organizations are doing is blatant election interference and tampering. … They are not even trying to hide it anymore and it is sad they want to deprive the American people of choosing Donald Trump — the overwhelming front-runner by far — as their President. History will not judge them kindly.”

… .

UPHILL BATTLE EXPECTED

“…[T]he efforts to keep Trump off the ballot for his alleged role around the attack on the Capitol and efforts to overturn the election grow …  is an up hill battle, due in part because there is no consensus on if January 6 was an insurrection.  Kevin Wagner, a professor at Florida Atlantic University, said this:

“The challenge here is that the 14th Amendment isn’t necessarily self-executing. In other words, it doesn’t just automatically happen and there is some question about what it means to be engaged in insurrection or rebellion and how that is defined. The challenge for us is that historically, it hasn’t been well-defined.”

“The question is about what is “participating in a rebellion or an insurrection.” There is dispute and people feel strongly what happened was essentially an insurrection — and it’s often referred to that way fairly regularly — but others have suggested that this was a protest that may have gotten out of hand — and may have even become criminal — but didn’t rise to a level of a rebellion or an insurrection. And the provision of the 14th Amendment really turns on how it is that we assess what happened,” he said.

The links to the quoted article with video and photos are here:

14th Amendment, Section 3: A new legal battle against Trump takes shape originally appeared on abcnews.go.com

CONFLICTING LEGAL OPINIONS

The online politcal news and commentary outlet ‘THE WEEK” reported on August 9:

Trump undeniably “meets the standard” of the 14th Amendment, said Donald K. Sherman at The Hill. “All three branches of the government have identified the attack on the Capitol as an insurrection,” and federal judges, House and Senate majorities, and the bipartisan House January  6 committee have identified “Trump as its central cause.” As Baude and Paulsen, the conservative scholars, note, Trump doesn’t have to be convicted of treason or any other crime to be barred from seeking office. State and federal election officials can make the call on their own. A New Mexico County commissioner has already been booted from public life for recruiting Jan. 6 insurrectionists. Trump is next.

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Alan Dershowitz[a  prominent criminal defense attorney] said in his Alan Dershowitz Newsletter  … the 14th Amendment doesn’t apply to Trump or any of the Jan. 6 rioters … . The “text and history” of the 14th Amendment make it clear the “disability provision was intended to apply to those who served in the Confederacy during the Civil War.” It was never supposed to empower “one party to disqualify the leading candidate of the other party in any future elections.” Determining who had sided with the Confederacy was easy, but there’s “no formal mechanism” for disqualifying somebody now. We would be left with some states striking Trump from the ballot and others leaving him on, which would trigger “a constitutional crisis” and open the door for Republican states to disqualify candidates who supported rebellious riots over, say, the killing of George Floyd.

 Baude and Paulsen rightly point out that Section 3 of the 14th Amendment “did not lapse with the passing of the generation of Confederate rebels, whose treasonous designs for the country inspired the provision,” said former federal appellate judge J. Michael Luttig and Harvard constitutional law professor emeritus Laurence H. Tribe in The Atlantic. The “post-Civil War Framers presciently foresaw” that it would never outlive the purpose it was intended to serve. “To the contrary, this provision of our Constitution continues to protect the republic from those bent on its dissolution.” Any official who has taken an oath to uphold the Constitution is “obligated to enforce” the disqualification clause. This part of the Constitution is worth defending like any other.

The link to the full unedited new article is here:

https://theweek.com/donald-trump/1026134/14th-amendment-disqualify-trump-election

CHALLENGES AHEAD IN BATTLEGROUND STATES

“Election officials in key battleground states are studying the legal viability of efforts to disqualify Donald Trump from running for president, based on the 14th Amendment’s ban on insurrectionists holding public office.

New Hampshire Secretary of State David Scanlan, a Republican, said that he asked the state’s attorney general to examine the matter and advise him on the “provision’s potential applicability to the upcoming presidential election cycle.” The attorney general’s office said it was “carefully reviewing the legal issues.”  In the statement, Scanlan said he wasn’t taking a position on the disqualification question and was not “seeking to take certain action” but was going to study the matter in anticipation of lawsuits.

Democrat Michigan Secretary of State Jocelyn Benson said in an interview with MSNBC she would consult with her fellow election officials in other key states and that they will “likely need to act in concert, if we act at all” regarding the constitutional challenges, which she predicted will ultimately be settled “in the courts.”

Free Speech For People, sent letters on Wednesday to the top election officials in Florida, Ohio, Wisconsin, New Hampshire and New Mexico, urging them to invoke the “Constitution’s Insurrectionist Disqualification Clause” and use their authority to “exclude Mr. Trump from the ballot.” They previously sent letters to Benson in Michigan, as well as the secretaries of state in Georgia, Pennsylvania, Nevada and North Carolina.

It seems unlikely that any secretary of state would take such aggressive action like this on their own, and even if they did, it would be immediately challenged in court. Protracted litigation, as happened last year against the GOP lawmakers, is much more likely. Multiple groups have promised to file lawsuits seeking to disqualify Trump.”

The links to the quoted news sources is  here:

https://www.cnn.com/2023/08/31/politics/state-efforts-to-disqualify-donald-trump/index.html

https://www.kron4.com/top-stories/ap-top-headlines/ap-cowboys-for-trump-cofounder-appeals-ban-from-public-office/

SECRETARY OF STATE MAGGIE TOULUSE OLIVER REACTS

Secretary of State Maggie Toulouse Oliver’s office has said that the constitutionality of Trump being on the ballot in New Mexico is a matter that will be studied if and when the time comes:

We’ve been getting inquiries into our office about this. All candidates for 2024 elections are required to file with our office in February 2024. We are aware of and are reviewing the legal theories regarding the 14th Amendment that conclude Donald Trump is ineligible to run for President. If Donald Trump files in New Mexico to run for President, we will make a determination at that time based on our understanding of New Mexico law and the requirements to run for office in New Mexico. Any determination about a specific candidate’s eligibility for the ballot will be made after the candidate filing day in February 2024. 

Links to related news sources are here:

https://www.cnn.com/2023/08/31/politics/state-efforts-to-disqualify-donald-trump/index.html

DEAD HEAT POLLING  WITH 10% UNDECIDED

On August 1, a new New York Times and Siena College poll revealed that  a rematch between President Joe Biden and former President Donald Trump shows the two men locked in a dead heat.  The poll was  conducted July 23-27, found if the election were held now, 43% of respondents would vote for Biden and 43% would support Trump.

A solid  10% of respondents declined to put their support behind either candidate, with 4% saying they would back another person’s bid, 4% undecided and 6% saying they would not vote at all if left with these two choices.

The polling also revealed neither apparent frontrunner favorably. The Times and Siena College poll found 55% of respondents view Trump unfavorably while 54% said the same about Biden. In June, a CNN/SSRS poll found 31% of registered voters did not view Biden or Trump positively.

https://ny1.com/nyc/all-boroughs/news/2023/08/01/poll-shows-biden–trump-in-dead-heat-in-2024

COMMENTARY AND ANALYSIS

Anyone who believes the national polling at this point is foolish. Both men have a strangled hold over their respective parties despite the strong desires of their parties wanting different candidates at the top of the tickets. Given the volatility of the electorate, anything can and will likely happen to change the final outcome.

Court  challenges to remove  candidates  on the ballot is very common in New Mexico. Usually, those challenges relate to qualifying nominating signature petitions and residency requirements.

In the long run, it’s more likely than not efforts to remove Trump from the ballot will be confined to the seven individual swing states to keep Trump off the ballot as opposed to an effort made in all the states.

SANTA FE, N.M. — Former New Mexico Gov. Bill Richardson has died, according to a statement from the Richardson Center for Global Engagement. He was 75. Richardson reportedly died in his sleep Friday night at his summer home in Chatham, Massachusetts.

Mickey Bergman, vice president of the Richardson Center, released the following statement:

“Governor Richardson passed away peacefully in his sleep last night. He lived his entire life in the service of others – including both his time in government and his subsequent career helping to free people held hostage or wrongfully detained abroad.

He lived his entire life in the service of others — including both his time in government and his subsequent career helping to free people held hostage or wrongfully detained abroad.  

However, his enduring legacy is his post-government volunteer work, where his nonprofit foundation worked to free people who were held hostage or wrongfully detained abroad.

There was no person that Governor Richardson would not speak with if it held the promise of returning a person to freedom. The world has lost a champion for those held unjustly abroad and I have lost a mentor and a dear friend.

Right now our focus is on supporting his family, including his wife Barbara of over 50 years, who was with him when he passed. We will share further information as it becomes available.”

POLITICAL CAREER

Bill Richardson has been a mainstay in New Mexico Politics since the 1980’s. He was the first representative elected to New Mexico’s 3rd Congressional District when it was established in 1983. He served as the congressman until 1997.

In 1997, Richardson was appointed as Ambassador to the United Nations serving through 1998. He was later appointed as United States Secretary of Energy by then-President Bill Clinton. He held that office until 2001.

In 2007, then-Governor Bill Richardson announced a run for President. He would drop out of the presidential race in Jan. 2008.

In Dec. 2008 then-president-elect Barack Obama named Richardson as his choice for U.S. Secretary of Commerce. He later withdrew citing a federal investigation.

Richardson each time remained governor of New Mexico through the end of his second term.

Richardson held no other political office in the state after serving as New Mexico’s Governor.

PRIVATE CITIZEN DIPLOMATE

Richardson was recently nominated for a Nobel Peace Prize for his work to free hostages and political prisoners in foreign countries. He had played a role in the release of 15 prisoners in the past 14 months and most recently WNBA player Brittney Griner.

Over the last three decades, Richardson traveled the world negotiating and securing the release of American prisoners and hostages in Bangladesh, North Korea, Sudan, Colombia, and Iraq. The nonprofit organization the Richardson Center was created to support the former governor in facilitating dialogue and global peace between countries with strained diplomatic relations.

In recent years, he spent much of his time as a private diplomat representing the growing number of American families seeking to free their loved ones unjustly detained abroad. He filled a whole biography with tales of his high-stakes meetings with tribal leaders and tyrants, writing about brokering deals with Fidel, Saddam, Hugo and “a Kim or two.”

Links to quoted news sources are here:

https://www.nbcnews.com/news/obituaries/former-new-mexico-governor-bill-richardson-dead-75-rcna103126

https://abcnews.go.com/Politics/former-new-mexico-gov-bill-richardson-dies-75/story?id=102884714

https://www.usatoday.com/story/news/politics/2023/09/02/bill-richardson-dead-at-75/70750485007/

https://www.koat.com/article/bill-richardson-dies-former-new-mexico-governor/44980800

https://www.krqe.com/news/new-mexico/former-new-mexico-governor-bill-richardson-dies-at-75/

https://www.kob.com/new-mexico/former-new-mexico-gov-bill-richardson-dies-at-75/

https://www.abqjournal.com/news/former-nm-governor-bill-richardson-dies/article_56c5d33c-49ae-11ee-aa8b-3f29e931553f.html#1

NEWS UPDATE

On July 28, the online news agency New Mexico Sun published the below Dinelli opinion guest column on the 2023 races for city council.

Headline: “2023 ABQ elections will be a referendum on the job performance of Mayor Keller”

By Pete Dinelli

Jul 28, 2023

The regular 2023 municipal election to elect City Councilors for City Council Districts 2, 4, 6, and 8 will be held on November 7, 2023 along with $200 Million in bonds to be approved by city voters.

The November 7 municipal election could shift city council majority control from the current 5 Democrats to a Republican control or perhaps a conservative shift to challenge Mayor Keller’s progressive agenda. After the 2021 municipal election, the city council went from a 6-3 Democrat Majority with the loss of a west side Democrat incumbent to a Republican and it became a 5-4 Democrat majority, but the ideology split is 5 conservatives to 3 progressives and 1 moderate.

Like it or not, the 2023 municipal election will be a referendum on the job performance of Mayor Tim Keller only because he himself and his supporters are inserting themselves into the races for city council when they should keep their noses out of the races. It’s no accident that Mayor Keller’s 2021 campaign manager is being paid to manage the campaigns of two city council candidates.  Keller is fully aware the stakes are high in the 2023 municipal election. Keller intends to take an active roll in electing city councilors who support his progressive agenda over the final 2 years of his second term to set himself up to run for a third term in 2025. The question is if Tim Keller will publicly endorse candidates?

What is downright pathetic is that more than a few well-known political pundits and city hall observers began to declare who the front runners are and predicting the final outcomes of all 4 city council races the very day after candidates qualified to be on the ballot. Predictions of winners even now does a real disservice to the candidates and the election process.  What political pundits are really trying to do is to act like king makers. They are trying to influence the public opinion, discourage candidates and to tip public perception in favor of their preferred candidates. It is the real slimy side of politics from those who have never run for office themselves and it is so very discouraging to those who run for office forced to listen to their political drivel.

The city is facing any number of problems that are bringing it to its knees. Those problems include exceptionally high violent crime and murder rates, the city’s increasing homeless numbers, lack of affordable housing, lack of mental health care programs and very little next to nothing in economic development. The city cannot afford city councilors who makes promises and offers only eternal hope for better times that result in broken campaign promises. Below in the postscript is  a link to a blog article that provides back ground information issues and questions.

What is needed are city councilors who actually know what they are doing, who are independent and will make the hard decisions without an eye on their next election nor who placate and appease the Mayor or only those who voted for them. What’s needed is a healthy debate on solutions and new ideas to solve our mutual problems, a debate that can happen only with a contested election. A highly contested races reveal solutions to our problems.

Voters are entitled to and should expect more from candidates than fake smiles, slick commercials, and no solutions and no ideas. Our city needs more than promises of better economic times and lower crime rates for Albuquerque and voters need to demand answers and hold elected officials accountable.

The candidates who have been verified by the city clerk to be on the ballot are:

DISTRICT 2 (DOWNTOWN, OLD TOWN, NORTH VALLEY)

Joaquin Baca, Democrat, a hydrologist. (Publicly financed candidate.)

Loretta Naranjo Lopez, Democrat, a retired city planner. (Publicly financed candidate.)

Moises A. Gonzalez, Democrat, community activist. (Privately financed candidate.)

DISTRICT 4 (NORTHEAST HEIGHTS)

Brook Bassan, Republican Incumbent, a stay-at-home mom. (Publicly financed candidate.)

Abby Foster, Progressive Democrat, and private attorney. (Privately financed candidate.)

DISTRICT 6 (NOB HILL, INTERNATIONAL DISTRICT)

Abel Otero, a Democrat, a barber and community activist. (Publicly financed candidate.)

Kristin Green, progressive Democrat and community activist. (Publicly financed candidate.)

Jeff Hoehn, Democrat, a nonprofit executive director. (Privately financed candidate.)

Nichole Rogers, Democrat, business consultant with background in health care, education and government.  (Publicly financed candidate.)

DISTRICT 8 (NORTHEAST HEIGHTS AND FOOTHILLS)

Dan Champine, Republican, a retired police officer and current mortgage lender. (Publicly financed candidate.)

Idalia Lechuga-Tena, Democrat, a consultant and former state representative, (Publicly financed candidate.)

Pete Dinelli is a native of Albuquerque. He is a licensed New Mexico attorney with 27 years of municipal and state government service including as an assistant attorney general, assistant district attorney prosecuting violent crimes, city of Albuquerque deputy city attorney and chief public safety officer, Albuquerque city councilor, and several years in private practice. Dinelli publishes a blog covering politics in New Mexico: www.PeteDinelli.com.

https://newmexicosun.com/stories/647862131-2023-abq-elections-will-be-a-referendum-on-the-job-performance-of-mayor-keller

POSTSCRIPT

2023 City Council Candidates, Issues Background And Questions; Competitive Races Will Result In Healthy Debate And Solutions To City’s Problems; Voters And Candidates Should Ignore Politcal Gossip Drivel

On August 29, Dr. Joseph Pitluck Aguirre announced by a press release his withdrawal from the Albuquerque City Council District 6 race.  He further announced that he and his family will be relocating to the Kansas City metro area to practice dentistry where he will provide quality dental care to underserved communities. Pitluck Aguirre acknowledged that his decision may come as a surprise to some but he appreciates the understanding of the Albuquerque community during this transition.  August 29 was the day privately financed candidates had to file Declaration of Candidacy with the City Clerk.

District 6 is the South East Heights City Council District now represented by City councilor Pat Davis who decided no to  run for a third term. Dr.  Pitluck Aguirre is a registered Independent, a dentist and software development company owner and he was privately financed candidate. Dr. Pitluck Aguirre’s campaign for City Council focused on combating crime, assisting the unhoused, supporting small businesses, and expanding access to healthcare and STEM opportunities.  Dr. Pitluck Aguirre sees his move to the Kansas City metro area as an extension of these efforts.  He said this in explaining his decision:

“I am deeply thankful for the opportunity to engage with the Albuquerque community during my campaign. The support I received has been profoundly moving.  While I am relocating, Albuquerque will always hold a special place in my heart. I remain committed to this wonderful community and intend to maintain strong ties.”

“I am confident that this move will enable me to make a meaningful difference in people’s lives. I look forward to maintaining strong ties with the Albuquerque community and continuing to support initiatives that foster prosperity, safety, and well-being.”

“In recent years, several states, including Missouri, have made significant strides in improving their dental Medicaid reimbursement rates. These improvements not only counter the effects of inflation but also create an environment that allows dental health professionals to serve their communities more effectively. I see this move as an opportunity to continue my mission of providing quality dental care, especially to those who need it most.”

“My dental practice will directly contribute to improving healthcare access in underserved communities. I also remain committed to advocating for policies that support small businesses and increase Medicaid reimbursement rates for dental health providers, wherever I am. ”

Dr. Pitluck Aguirre expressed his heartfelt gratitude to Sandia National Laboratories for their invaluable support to his software company over the years and he said this:

“Their technical guidance through the New Mexico Small Business Assistance Program, and the opportunity to serve as a contractor, has been a privilege. It allowed us to support, in our own small way, their crucial mission of national security. I am profoundly grateful for the chance to contribute to such a significant cause. ”

For more information, you can contact Dr. Joe Pitluck Aguirre at joe@joe4abq.com.

OTHER COUNCIL RACES AND CANDIDATES

The regular 2023 municipal election to elect City Councilors for City Council Districts 2, 4, 6, and 8 will be held on November 7, 2023 along with $200 Million in bonds to be approved by city voters.  The remaining District 6 candidates are:

Abel Otero, a Progressive Democrat, a barber and community activist. (Publicly financed candidate.)

Kristin Green, Progressive Democrat and community activist. (Publicly financed candidate.)

Jeff Hoehn, Democrat, a nonprofit executive director. (Privately financed candidate.)

Nichole Rogers, Democrat, business consultant with background in health care, education and government.  (Publicly financed candidate.)

The candidates in the other 3 City Council races are:

DISTRICT 2 (DOWNTOWN, OLD TOWN, NORTH VALLEY)

Joaquin Baca, Democrat, a hydrologist. (Publicly financed candidate.)

Loretta Naranjo Lopez, Democrat, a retired city planner. (Publicly financed candidate.)

Moises A. Gonzalez, unable to identify, community activist. (Privately financed candidate.)

DISTRICT 4 (NORTHEAST HEIGHTS)

Brook Bassan, Republican Incumbent, a stay-at-home mom. (Publicly financed candidate.)

Abby Foster, Progressive Democrat, and private attorney. (Privately financed candidate.)

DISTRICT 8 (NORTHEAST HEIGHTS AND FOOTHILLS)

Dan Champine, Republican, a retired police officer and current mortgage lender. (Publicly financed candidate.)

Idalia Lechuga-Tena, Democrat, a consultant and former state representative, (Publicly financed candidate.)

COMMENTARY AND ANALYSIS

The District 6 Albuquerque City Council race is the most contentious of the 4 City Council races with 4 remaining candidates all who are Democrats.  The November 7 municipal election could shift city council majority control from the current 5 Democrats to a Republican control or perhaps a conservative shift to challenge Mayor Keller’s progressive agenda.

After the 2021 municipal election, the city council went from a 6-3 Democrat Majority with the loss of a west side Democrat incumbent to a Republican and it became a 5-4 Democrat majority, but the ideology split is 5 conservatives to 3 progressives and 1 moderate.

Informed sources have  confirmed Mayor Tim Keller has met with or spoken to at least 3 progressive democrats running and pledging his support to them. This is a clear indication that Keller is fully aware the stakes are high in the upcoming 2023 municipal election. Keller intends to take an active roll in electing city councilors who will support his progressive agenda during the final 2 years of his second term thereby setting himself up to run for a third term in 2025.

District 6 is the most progressive district in the city.  Because there are 4 democrats running it is more likely than not a run off will happen between the two top vote getters if one of the 4 does not secure 50% plus one of the November 7, 2023.

Best wishes to Dr. Joseph Pitluck Aguirre and his family as they embark on relocating to Kansas City and thank you for your willingness to run for public office.

The Legislative Finance Committee (LFC) is a bipartisan panel of lawmakers, both state senators and representatives, who work on the state’s budget year-round.  On August 23, the LFC met in Las Vegas, New Mexico where Secretary of Finance and Administration Wayne Propst briefed lawmakers on New Mexico’s revenues and the status of the state’s financial reserves used to help state government pay its bills.  Propst was joined by economists from the legislative and executive branches of government to share the revenue forecast.  The briefing was one of many that will occur to assist law makers in drafting the state’s annual budget before the 2024 legislative session that will begin on January 16, 2024.

Secretary Propst told lawmakers that New Mexico’s financial reserves have reached upwards of 52% of ongoing state spending this summer resulting in a financial cushion of nearly $4.4 billion.  The financial cushion is being fueled by the incredible oil and gas boom and along with strong consumer spending generating gross receipts tax revenues. The windfall is expected to continue.

Propst said New Mexico legislators and Governor Michelle Lujan Grisham can expect almost $3.5 billion in “new money” for next year’s budget.   “New Money” is defined as the difference between current spending levels and projected revenue for the fiscal year beginning on July 1, 2024.  In otherwards, “new money” is the money left over after the state pays for all its yearly expenses.  Because of the state’s economic growth, declining unemployment rates, and the state’s oil and gas industry revenues, the state has far more to spend in new money. Propst told the LFC this:

“We’re living in unprecedented, historic times in the state of New Mexico [when it comes to oil and gas revenues]. … I think we’re in a safe place as a state.”

In December of 2022, New Mexico’s economists estimated how much cash the state would earn from things like taxes and investments. Now, a new estimate shows another $866.2 million they didn’t realize they’d have for the fiscal year 2023 and $790.7 million they didn’t know they’d have for the fiscal year 2024.

This year’s projected revenue growth is a continuation of record breaking  financial years for New Mexico. The increase in revenues is once again attributed to oil and gas revenue which makes up roughly 40% of the state general fund. Oil and gas revenues are historically very volatile as the markets can and  have had dramatic declines and increases.

New Mexico has surged past North Dakota to become the No. 2 oil-producing state in the nation, behind only Texas. According to state economists, oil production in New Mexico hit a record high in a recent 12-month period, with even steeper increases expected in the coming years.

The revenue is expected to give New Mexico lawmakers tremendous financial flexibility as they start preparing a budget package for consideration in the 2024 legislative session.

Ismael Torres, chief economist for the Legislative Finance Committee, said the incredible growth in oil production is expected to level off and then decline. Production is expected to peak in 2031. Torrez said this:

“These surpluses may not be here forever.”

To guard against a collapse in revenue, the New Mexico legislature has been very conservative and has allocated increases of funding into what are called “permanent funds” that are designed to provide steady income. Permanent funds act like endowment accounts where investments are made and can generate income.  Secretary of Taxation and Revenue Stephanie Schardin Clarke told lawmakers the state is “building a bridge from peak oil” to income that grows more predictably through investments.

TURNAROUND FROM SEVEN YEARS AGO

The revenue projections for the last 2 years  are a total turnaround from 7 years ago when New Mexico policymakers were faced with major deficits and were force to spend heavily out of the state’s main reserve accounts to help the state government finance essential services and pay its bills.  In 2016 and 2017 a dramatic crash in oil prices occurred.  The state faced a downgrade in its credit rating and had the nation’s highest unemployment rate.

In order to avoid any and all tax increases despite any need, then Governor Susana Martinez and the legislature responded with a series of budget cuts and sweeping cash out of various state accounts to ensure the state could pay its bills. The state was forced to empty its main reserve accounts.  As a result, the state had just 2.4% of recurring spending in reserves in 2016.  Most of the reserve funding came from a tobacco settlement fund and it was a reserve of last resort.

As a result of the dramatic turnaround from 7 years ago, the budget approved for this year increased ongoing spending by upwards of 14% to roughly $9.6 billion over last year. In addition to the increase spending, lawmakers phased in reductions in the state’s gross receipts tax rate and twice issued one-time tax rebates to taxpayers.

The legislature’s financial strategy also included the creation of endowment-like accounts intended to generate steady income, even if oil revenue dips. The most notable endowments created were for early childhood education programs. Lawmakers also established new reserve accounts bolstered by automatic transfers of surplus revenue.

According to Secretary Propst, notwithstanding the dramatic turnaround in revenues, the state still faces downwards market risks.  A good example of such risks includes disruptions in the energy market spurred by Russia’s attack on Ukraine. There are also upside scenarios that could push revenue even beyond today’s robust expectations.

LEGISLATORS BEGIN DEBATE ON WHAT TO DO WITH SURPLUS

New Mexico law makers are already beginning to discuss what do to do with the surplus.  The first will be to again put more funding into “rainy day” permanent funds but other ideas are emerging.  The ideas being discussed include everything from tax reform, health care, education and infra structure.

While some of the money will be set aside for permanent funds, like the Early Childhood Trust Fund, State Senator  Pat Woods, who represents Curry, Quay, and Union counties, says these programs are overfunded and hopes to put more money in future funds. Woods said this:

“We have so much money in the program right now that we are not able to, we are about to the maximum, of what we can employ for state government. … We have a lot of unfilled vacancies in state government, but we are not having any luck filling them – therefore we can’t produce much more programs.”

With the extra money in the budget, New Mexico House Republican Minority Leader Ryan Lane wants to tackle tax reform which is borders on a Republican broken record. Lane said this:

“I think we need to take a hard look as legislators as to why are personal income taxes are so high when we have such a surplus. … I think we should tackle some comprehensive tax legislation to really put more money back into our New Mexico working-class taxpayer pockets.”

Higher education is always a big focus for state Democrats and it to borders on another broken record. They say this is a unique opportunity to fund education while also saving for future years, when the budget may not be as big. Democrat Sen. George K. Muñoz, the LFC Chairman who represents Cibola, McKinley, and San Juan counties, said this:

“Now we are able to hold state budgets at a certain level, hold education across the board, keep in place opportunity scholarships which is full education, free education. That is what [the surplus] … really enables us to do.”

Senator Muñoz also said the approach should be to invest and move the state from oil and gas reliance and he said this:

“We need to see past the dollar signs and focus on planning for the future because these high-revenue years won’t last. …  we still have much work to do for New Mexicans, but we have an opportunity as well to move the state toward less reliance on oil and gas. … New Mexico has never had this opportunity before.”

Democrat State Rep. Nathan Small, and vice chairman of the LFC who represents Doña Ana County, agreed that the state should invest in education, as well as public safety and infrastructure. He brought up improving behavioral health care in the state.  Small said this:

“Substance use treatment, investments in health care, investments to expand reimbursement, so that there are more health care professionals who can see and serve New Mexicans.”

Small also said the state is in position to make wise spending decisions and avoid wild swings in the annual budget. Small put it this way:

“We’re in such a different era. … We have the opportunity to exit the roller coaster and get onto a steady climb to a broad prosperity for our state.”

Broadview area Republican Sen. Pat Woods suggested the strength in New Mexico’s oil and gas industry is masking other economic weaknesses, such as the state’s persistently low labor force participation rate. Woods said this:

“I have a hard time quite believing that we can replace the extractive industries in our state with the wealth of simply investing out of state.”

Farmington Republican Senator Bill Sharer said the state needs to invest the extra cash ostensibly to diverse the economy. Sharer said this:

“We don’t want to squander $3.5 billion when we can use it for investments that will allow us to weather economic downtowns. The question is, where do you put the money where it grows? New Mexico certainly has issues it needs to address but the focus should be how to take today’s money and turn it into future money.”

GOVERNOR’S TAKE ON WHAT TO DO WITH SURPLUS

New Mexico law makers and Governor Michelle Lujan Grisham will likely once again consider another round of tax rebates.  Over the last fiscal year, the state paid residents more than $780 million in rebates.  When asked about the possibility of another round of rebate checks, the governor’s office responded with this statement:

“The robust general fund proves that what we are doing in New Mexico’s economy is working. …  As we see another record year of projected revenue, we will continue building a solid financial future for our state through meaningful and long-lasting investments, always with an eye on stewardship of public dollars and fiscal responsibility.”

Links to quoted news materials are here:

https://www.krqe.com/news/politics-government/new-mexico-eyeing-nearly-3-5-billion-in-extra-money/

https://www.kob.com/new-mexico/oil-and-gas-industry-bringing-billions-to-new-mexico-in-the-next-year/

https://www.abqjournal.com/news/unprecedented-times-nm-revenue-boom-to-generate-3-5b-in-new-spending-capacity/article_8ae4aa60-41d6-11ee-8a60-bf79134b7d0b.html#tncms-source=home-featured-7-block

DÉJÀ VU ALL OVER AGAIN

As Yogi Berra has been quoted as saying “It’s deja vu all over again!”

It was on August 16, 2022 during a meeting of the LFC held in Chama, New Mexico, that legislators were told by LFC executive economists the state would  have a projected $2.5 billion in “new” money during the 2023 budget year that started on July 1, 2023.  The total revenue was forecasted to rise from $9.2 billion in the fiscal year that ended on June 20, 2022 to nearly $10.9 billion for 2023.

During the  August 16, 2022 LFC meeting,  Gallup Democrat Senator George Muñoz called the then project  $2.5 billion in additional revenues a “once-in-a-century” opportunity. Muñoz said at the time:

“If we want to really change, for once and for all, and keep our commitment to reducing tax rates, lowering the [gross receipts tax and] making New Mexico competitive with other states, this is one of the greatest opportunities we could have. … You can change the complete path of this state … Your phones are going to be ringing off the hook [with demands on how to use the new revenues].”

On December 12, 2022  the Legislative Finance Committee released its Consensus Revenue Estimate for fiscal year 2024. It was reported that New Mexico’s revenues had ballooned even further with the state’s revenues from oil and gas production increasing at record levels.  The new estimates released project the state will have an astonishing $3.6 billion in “new” money available for the budget year that starts on July 1, 2023.

The link to the Consensus Revenue Report is here:

Click to access ALFC%20121222%20Item%201%20General%20Fund%20Consensus%20Revenue%20Estimate%20December%202022.pdf

On December 12, 2022  Muñoz had this to say about the $3.6 billion increased revenues:

 “With this revenue forecast, there’s an opportunity knocking at our door. … No one in our state’s history has ever had this opportunity.”

Cabinet Secretary Debbie Romero of the Department of Finance and Administration told the LFC that risks exist to the record-high revenue forecast.  Those risks include supply chain shortages and the ongoing Russian invasion of Ukraine. She also suggested to limit future spending obligations.  She urged lawmakers to target spending during the upcoming legislation session to one-time needs like water projects, rural health care and broadband expansion.  Romero said this:

“Those are the once-in-a-lifetime things we should invest in while not growing our recurring budget.”

During the last three years, New Mexico’s revenue levels have steadily increased due to surging oil and natural gas production. The spike in revenue is expected to continue over the coming year.  According to the Consensus Revenue Report the latest projections by fiscal year for the last 2 full years are:

2022 – $9.7 billion, up from $9.2 billion in August
2023 – $10.8 billion, up from $9.8 billion in August
2024 – $12 billion, up from $10.9 billion in August

COMMENTARY AND ANALYSIS

Election after election, we hear New Mexico politicians running for office at all levels and elected officials from both parties repeatedly point out that we routinely rank high on the bad lists of crime, hunger, poverty, and low on the good lists of income, child well-being, places to retire, quality of education and jobs.  With the historic surpluses, the state now has for the first time in its history the financial ability to really address these issues.

New Mexico, as one of the poorest states in the union and has always suffered from the inability to invest in itself to turn its economy around. The state suffers from a “poor me” mentality, and now that there is money available that can be transformative, our elected leaders do not know what to do with the surplus.  With the now historical surpluses that will likely last for the foreseeable future, some economists say as many as 10 years, our state leaders need to stop saving for a rainy day and for the first time in the state’s history start investing in ourselves and spend on transformative projects and diversification of our economy.

WHAT NOT TO SPEND SURPLUS ON

Given the enormous amounts the state is now spending on education and what the state will be spending because of the enacted constitutional amendment, this years $4.4 billion surplus would be better spent elsewhere and not on public education. Public education is a reoccurring expenditure that must rely on continuing taxation. During her first term, Govern Lujan Grisham undertook to fully fund the state’s efforts to reform the State’s public education system and she was highly successful.  Lujan Grisham succeeded in securing over $1 Billion dollars for public education during the 2019, 2020, 2021 and 2022 legislative sessions. In addition to the dramatic increases in public education funding, Lujan Grisham administration created the Early Childhood Department, issued mandates to the Children, Youth and Families and Public Education departments.  An Early Childhood Trust Fund of $320 million was also created.  The base pay for teachers has been increased by upwards of 20% and have risen to $50,000, $60,000 and $70,000 depending on the level of years of teacher experience. The ball is now in the Public Education Department’s court to start to produce results now that so much funding is in place.

Likewise, the new surplus should not be spent on another round of tax cuts and rebates. There have now been two rounds of tax rebates that the surplus has been spend on. In 2022, the legislature enacted the first round of tax rebates that cost $529.7 million.  According to the state Taxation and Revenue Department, upwards of 850,000 of New Mexico’s 1.1 million taxpayers, or about 77%,  received the rebates.  Tax credit of $25 to $175 per child starting in 2023 was also  enacted.  In 2023, the legislature enacted a second waive of tax rebates of $300 for individual taxpayers and $600 for married couples which cost upwards of $1 Billion. About $440 million or half of the initial cost of the tax package went toward issuing rebates issued to all New Mexicans who filed tax returns in 2021.

Whenever surpluses in state revenues occur, Republicans always begin to salivate and proclaim all taxation is bad and that rebates and tax reform are desperately needed and the only way to go. The Republican tired and old political dogma has always been that tax revenues are the people’s money and anything in excess of what is actually needed over and above essential government services should be returned to the taxpayer. It is a short-sighted philosophy believing that only essential, basic services should be funded with taxpayer money such as public safety.  If that were the case, there would be no public libraries, no museums, no zoos, no mass transit expansions and no memorial monuments.

SPEND SURPLUS ON ECOMOMIC DEVELOPENT AND STATES GROWTH INDUSTRIES TO PROMOTE ECONOMIC DIVERSITY

It’s no secret that the biggest problem with New Mexico’s economy and state funding is the state’s reliance on revenues from the oil and gas industry. New Mexico has been struggling for decades to diversify its economy, wean itself off of federal government spending and reducing its heavy reliance on the oil and gas industry where the state gets nearly 40% of its revenue from. When the oil and gas industry booms, New Mexico becomes flush with money and when it busts, the state revenues plummet causing financial crisis and politicians calling for no tax increases and slashing of budgets and government.

With $3.7 billion In Federal Infrastructure Investments and Jobs Act Funding, the allocation of $478 million in federal pandemic aid out of $1.1 Billion in pandemic relief and another projected surplus of $4.4  from oil an gas revenues, the state’ s decades long financial woes are turning around.

There are 10 sectors or industries that have been identified as having the best shot at diversifying New Mexico’s economy. Those industries identified are:

Film & Television

Aerospace

Sustainable Energy

Intelligent Manufacturing

Cyber-Security

Value Added Agriculture

Global Trade

Bio-Sciences

Intelligent Manufacturing

Outdoor Recreation

Recreational Cannabis And Hemp Industries

Two  in-depth reports  on each one of these industries can be found in the the postscript below.

The Governor Lujan Administration and the New Mexico legislature should make every effort to promote and fund public/private partnerships with each industry, provide tax breaks and incentive to those industries and make available economic development funding to encourage investment in the state.

SPEND SURPLUS ON TRANSFORMATIVE PROJECTS

Debate is now hot and heavy on how to spend the historic surpluses should be spent. There is indeed a lengthy list on what the surplus can be spent upon. The list includes:

Major infrastructure needs such as roads and bridge repair, funding for wastewater projects, dams and acequia projects, the courts, law enforcement and the criminal justice system, funding for our behavioral health care system, job creation endeavors, economic development programs, funding for the Public Employee Retirement funds to deal with underfunded liabilities and benefits are all likely topics of discussion during the upcoming 2023 legislative session. A civil mental health and drug treatment court with hospital facilities and transitional housing with services is something long overdue. All merit serious consideration and funding with the historic surplus.

What all too often is totally ignored because lack of revenues are major capital outlay projects that are for the benefit of the general public and that improve the overall quality of life. Roads and water projects are such priorities. Dozens of bridges across some of the most rural parts of the state are rated in either poor or critical condition, requiring millions of dollars to repair or replace.  It will cost an estimated half-billion dollars just to bring all of the state’s bridges up to fair condition. New Mexico is getting millions of dollars in federal funding to help repair roads, bridges and tunnels in the state. In fiscal year 2023-2024, $549.4 million is going toward the state and be used to fund different programs aimed at improving safety and reducing carbon emissions. The funding comes from the Bipartisan Infrastructure Law that gives $59.9 billion in fiscal year 2023 to states across the country.

https://www.krqe.com/news/larry-barker/are-new-mexico-bridges-safe/

https://www.krqe.com/news/larry-barker/behind-the-story-new-mexico-bridge-safety/

https://www.krqe.com/news/new-mexico/almost-550-million-heading-to-new-mexico-for-infrastructure-improvements/

MAJOR CAPITAL OUTLAY PROJECTS SHOULD BE IN THE MIX

Given the sure magnitude of the surplus, it is likely municipalities, citizens and interest groups will be asking for funding for special capital projects such as swimming pools, parks, recreation facilities, sport facilities, such as soccer stadiums, and entertainment venues.  The Governor and the legislature should listen and fund such projects while they can.

For the last two years, the New Mexico United soccer team has been trying to get taxpayer money to build a soccer stadium. In 2020, the soccer team was able to secure $4 million in state funds.  In 2021, Albuquerque taxpayers were asked to support a bond to pay for the stadium, but it was rejected. With a $3.8 in surplus revenue, the legislature should consider fully funding the facility which will be about $16 million.

Other major capital outlay facilities and projects that has been discussed for decades is improving the New Mexico State Fair and all of its aging facilities.  In particular, demolishing the 60-year-old Tingly Coliseum and building a multipurpose entertainment and sports facility with the capacity of upwards of 20,000 has been a dream of many a Governor, State Fair Commission and Fair Managers.

On February 25, 2019 it was reported that there is a need for such a facility and EXPO New Mexico was in  the final stages of conducting a feasibility study on the construction of a new arena on the state fairgrounds.  Tingley Coliseum has been around since 1957 with capacity for 11,000. Over the years it’s been remodeled and upgraded but it is still a state fair rodeo venue. The state and Albuquerque for decades has needed a large capacity, multipurpose entertainment venue of upwards of 20,000.

https://www.krqe.com/news/officials-want-to-build-new-arena-on-state-fairgrounds/

https://www.krqe.com/news/expo-new-mexico-looking-into-new-arena-to-replace-tingley-coliseum/

FINAL COMMENTARY

The upcoming 2024 New Mexico legislative session begins on January 16, 2024. it is a 30-day session known as the short session. The session will be confined to financial and budget matters subject to the Governor Michelle Lujan Grisham’s call and what she will allow to be placed on the agenda.

Governor Lujan Grisham and the New Mexico Legislature will over the next few months decide how to spend the surplus.  The Governor and the New Mexico Legislature will release their own, separate, proposed budgets and spending plans in early January before the start of the 30-day session.  Budgets will be drafted based on the revenue projections and will include how much in reserves for any possible future budget shortfall.  During the legislative session, there will be a consolidation and a consensus budget formulated that lawmakers will then approve for the fiscal year that will start on July 1, 2024 and end June 30, 2025.

Indeed, the 2024 legislative could be a “once in a century opportunity” to really solve many of the state’s problems that have plagued it for so many decades.  It should also be viewed as an opportunity to spend to diversify the state’s economy and build facilities that are needed and that will have a lasting impact on the state’s quality of life for decades to come.

Governor Michelle Lujan Grisham will have an extraordinary opportunity to propose transformative projects for the surplus. The real question is will she play it safe as she has done the last two years because she was running for re-election and concentrate on tax rebates to garner favor with voters or will she concentrate on transformative projects and investing in economic development to diversifying our economy?

POSTSCRIPT

Industries That Can Diversify New Mexico’s Economy; AED Announces Five-Year Strategic Plan; State And City Economic Development Identify Industries To Diversify Economy; Now Just Do It!

Film Industry And Recreational Cannabis Industry Are State’s “First Step Industries” For Diversifying New Mexico’s Economy; Infrastructure Also Needed For Economy Diversification