Sunday, October 19, 2014

Minimum Wage Machinations

Painstakingly, following the City Charter's requirements, CAFE and volunteers gathered thousands of valid signatures on a petition to increase the minimum wage. The Charter gave the council only two choices: enact the ordinance as it stands or reject it and let the citizenry vote.

In September, acknowledging that a popular vote would favor the ordinance, a 4-3 City Council majority enacted the ordinance immediately.

The same four had earlier enacted, when they realized CAFE would have the signatures, an ordinance calling for a much smaller hike in the minimum wage. Now city government threw a red-herring into the path, asserting a need to “reconcile” the ordinance with the earlier contradictory one. Under New Mexico law, the later ordinance effectively repealed the earlier. City officials abandoned “reconciliation.”

Three of the four also spoke of quickly watering down the ordinance. That's not what the City Charter contemplated. It would be illegal. It would be such vile chicanery that it would thoroughly destroy citizens' trust in the Council. It would also spark a lawsuit that would exacerbate tensions, cost the taxpayers unnecessary money, and probably result in a court order against the City. City might have to pay plaintiffs' costs and/or legal fees, too – all for the convenience of the business community.

Thus we hope those Councilors didn't mean it or will rethink taking any such action.

Watching the 6 October council meeting, I wasn't sure the message had quite gotten through yet. There was again talk of using the Council's discretion and wisdom – which is exactly what the Charter directed the Council not to do under present circumstances.

There was also a suggestion that one Councilor should recuse himself. The law states: “A Legislator or public officer shall treat [his or her] government position as a public trust. . . . A public officer or employee shall be disqualified from engaging in any official act directly affecting the public officer's or employee's financial interest.” (full provision reprinted on my blog post today)

The Councilor – who's respected and who'd mentioned the problem himself at an earlier stage – is married to a lobbyist for the Restaurant Association, which has taken a strong position against the ordinance. She's not an engineer or a secretary or a Human Resources Director. Her job is to influence government officials to act in ways her employer approves of.

No one questions his ethics or hers; and I believe that once the Councilor has studied the law more carefully, he'll insist on recusing himself.

Some of his allies replied by threatening to demand Councilors who'd gathered signatures for the ordinance recuse themselves. With all due respect, that's a wholly different situation.

Having a strong view on something, even speaking publicly on it (as Councilors have do on many matters) is very different from having a personal individual financial interest in the result.
This is a legislative, not a judicial, decision. Councilor Miguel Silva, acting in a quasi-judicial capacity at a recent zoning hearing, recused himself recently when he had no financial interest but shared the Tortugas Pueblo's distaste for commercial development near Tortugas Mountain. That was proper.

A councilor or state legislator usually need not recuse when s/he has expressed an opinion or volunteered to help grow public support for something. (A judge should, or at least offer to.)

The view some expressed from the dais is dead wrong, legally and logically. It would mean that a candidate who got elected to the Legislature while demanding pension reform, better veterans' benefits, or a Campaign Finance Law would have to take no part in the discussion of the issue once s/he got elected. That ain't the law. Nor should it be.

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 19 October.]
[I've spent a lot of time looking into this issue.  I dashed off a column when the City Council adopted the ordinance on 8 September.  Then I realized the Sun-News was going to editorialize on Sunday and Steve Fischman had penned an op-ed piece for Sunday's Sun-News, all of us expressing similar concerns, so I wrote on something else instead.  Later I wrote and abandoned a second column.  In response to questions in an email from a prominent citizen who's less sympathetic to the minimum wage hike sought by CAFE, I did some legal research on the City Charter and on the New Mexico statute regarding construction of statutes or ordinances.  I also spoke with Councilors, the City Manager, the City Attorney, CAFE, and others So here's a supplement to the column -- with apologies for its length.  I wanted to touch on a variety of points different people have raised.]

The initiative petition:
The relevant City Charter provision is 8.06:

Sec. 8.06. Initiative petitions; action by council.
When an initiative petition has been finally determined sufficient, the council
shall promptly consider the proposed initiative ordinance in the manner provided
in Article II. If the council fails to adopt the proposed initiative ordinance
in its entirety within sixty (60) days after the date the petition is finally determined
sufficient, it shall promptly submit the proposed ordinance to the voters
of the city.

That's  pretty clear: the City Council can adopt the ordinance in its entirety or promptly submit the proposed ordinance to the voters.
At least, that's what I would argue if I represented some minimum-wage workers aggrieved by the council's action.
The council would argue, through its lawyer, "Well, we did adopt it.  That makes it an ordinance on our books.  And we can amend or repeal ordinances, including that one, at our discretion.  City Charter doesn't specifically say we can't."
Well, we'll see.  One problem with the city's position is that it reduces the initiative provision in the charter to a bad joke.  That is not a result an unbiased judge would care to approve, on a challenge by citizens the citizens the charter was written to protect.  
I won't discuss the legal arguments more deeply here, because dispensing free legal and tactical advice to the City isn't necessarily part or my job description.  There's an outside possibility some folks (not CAFE) might ask me to make those arguments more formally.     

Statutory Construction and "Reconciliation"
Let's start with the law, which seems pretty clear.  (One note, though: these rules are mostly for courts or agencies dealing with a statute (or ordinance), having to interpret the legislature's (or city council's) words, and doesn't purport to direct the legislature or city council to do anything at all.)
N. M. S. A. 1978, § 12-2A-10
§ 12-2A-10. Irreconcilable statutes or rules
A. If statutes appear to conflict, they must be construed, if possible, to give effect to each. If the conflict is irreconcilable, the later-enacted statute governs. However, an earlier-enacted specific, special or local statute prevails over a later-enacted general statute unless the context of the later-enacted statute indicates otherwise.
B. If an administrative agency’s rules appear to conflict, they must be construed, if possible, to give effect to each. If the conflict is irreconcilable, the later-adopted rule governs. However, an earlier-adopted specific, special or local rule prevails over a later-adopted general rule unless the context of the later-adopted rule indicates otherwise.
C. If a statute is a comprehensive revision of the law on a subject, it prevails over previous statutes on the subject, whether or not the revision and the previous statutes conflict irreconcilably.

Note that this (a “Uniform Statute” enacted in New Mexico) is intended to guide judges and others construing statutes. The “harmonize” language means that where possible a judge should construe apparently constricting statutes in a way that harmonizes them. I don’t know that it means to suggest or require that the Legislature (or, here, City Council) do anything to “reconcile” statutes. Further, one might reasonably question where such “reconciliation” would be legal in this particular case, where the later statute was enacted under the City Charter’s explicit mandate that the council enact the petition-driven ordinance or put it on the ballot – no third option. 
Annotations to statutes are often helpful.  Here, century-old precedent confirms that this principle of statutory construction has been the law in the New Mexico for a very long time.  It's difficult to see just why it was used in an apparent attempt to delay operation of the minimum wage ordinance.
Under “Repeal by Implication” several Annotations support our view:
  • In absence of repealing clause expressly designating the prior enactment to be abrogated, no new statute will be allowed to sweep away existing legislation unless its terms are such that the new and the old cannot stand together consistently.”
  • Where later of two statutes having same object and relating to the same subject is repugnant to earlier statute, earlier statute is impliedly repealed to extent of repugnancy, even in absence of a repealing clause.”
  • A statute may be repealed without being referred to by a subsequent statute on the same subject, when the last statute is wholly irreconcilable with the former and both cannot stand together.”
  • Though repeals by implication are not favored, yet courts declare them in cases where the last statute is so broad in its terms and so clear and explicit in its words as to show it was intended to cover the whole subject, and, therefore, to displace the prior statute.”
  • “”Repeal by implication is not favored, butan earlier law is necessarily repealed by implication when it is absolutely irreconcilable with a later law.”
I quote so many to stress that this is no novel concept.  Too, the second annotation suggests that the Mayor's recent insistence that CAFE should have included a clause repealing the hastily-enacted $8.40 ordinance isn't really supported by the law.

Should someone have repealed the $8.50 ordinance more formally? 
My view is, not necessarily, although it would have been cleaner.
The parties keep pointing fingers at each other on this one.
The CAFE ordinance language existed, at least in draft, before the Council enacted the $8.50 red herring in a desperate effort to stave off the $10.10 ordinance.
City councilors say CAFE should have included a repeal provision in the ordinance.  CAFE supporters says the language was shown to the City Attorney, and approved, and that maybe if there was any such requirement he should have told CAFE.  
That doesn't matter a hell of a lot, except that it was another effort by some of our councilors and the business community to generate a technicality and then try to use that technicality to block the minimum wage.
Fact is, (1) I don't know that there was such requirement, but (2) if there was such a requirement it would seem that the City Attorney could reasonably have mentioned it to CAFE in connection with the language of the $10.10 ordinance (if the $8.50 ordinance existed by then) and (3) if there was such a requirement the City Attorney might reasonably have thought to inform the council of it and ask if he should prepare an ordinance repealing the $8.50 ordinance in time for the Council to consider the $8.50 repeal along with the $10.10 initiative ordinance.  Maybe he did.  All we can say is that IF (as $10.10 minimum wage opponents have argued recently) there was such a requirement, then either the City Attorney or the Mayor or the Councilors, or all of the above, kept silent and lay in wait to trick their own citizens out of the fruits of their petition-gathering labors.

New Mexico law on recusal
Again, here's the statute, the Government Conduct Act:

§ 10-16-2.  Definitions.
F. "financial interest" means an interest held by an individual or the individual's family that is: (1) an ownership interest in business or property; or (2) any employment or prospective employment for which negotiations have already begun;
H. "official act" means an official decision, recommendation, approval, disapproval or other action that involves the use of discretionary authority;
L. "substantial interest" means an ownership interest that is greater than twenty percent

A. A Legislator or public officer shall treat [his or her] government position as a public trust. [S/he] shall use the powers and resources of public office only to advance the public interest and not to obtain personal benefits or pursue private interests.
B. . . . shall conduct themselves in a manner that justifies the confidence placed in them by the people, at all times maintaining the integrity and discharging ethically the high responsibilities of public service.

10-16-4. Official act for personal financial interest prohibited; disqualification from official act; providing a penalty.  
A.   It is unlawful for a public officer or employee to take an official act for the primary purpose of directly enhancing the public officer's or employee's financial interest or financial position.  Any person who knowingly and willfully violates the provisions of this subsection is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. 
B.   A public officer or employee shall be disqualified from engaging in any official act directly affecting the public officer's or employee's financial interest, except a public officer or employee shall not be disqualified from engaging in an official act if the financial benefit of the financial interest to the public officer or employee is proportionately less than the benefit to the general public. 

I think no one contends that 10-16-4A applies; but 10-16-4 very well might.
The law does not differentiate between a councilor and his or her spouse.  So in essence, imagine that the councilor's day job is as a lobbyist for an association that vigorously opposes the $10.10 minimum wage.  Enactment of this wage, by state, county, or municipality, is a sort of failure for that lobbyist.  Denying the raise, by any means, would seem a success.  That being so, ought the councilor to be voting on the issue?  I do not see how.  Inevitably there is the appearance of impropriety, even if the councilor could separate mentally his two obviously conflicting and obviously important goals.
How Did We Get Here?
CAFE and its allies diligently followed the City Charter.  They worked on this for more than a year, quite publicly.
The Chamber of Commerce said no minimum wage hike was appropriate.  None.  Even late in the game, when a City Councilor said the business community was ready to talk and I thought briefly about trying to facilitate a dialogue, the Chamber again stated publicly that no raise at all should be enacted.
Had the Chamber of Commerce respected CAFE and the process, and public opinion, it might have engaged in a more meaningful dialogue with CAFE and had some influence on the ordinance.
Yeah, after CAFE had finished its work and the ordinance was on trace for either enactment or a spot on the November ballot, the Chamber and some councilors suggested CAFE should go back to the bargaining table, thereby losing its spot on the ballot.  I can see where CAFE wasn't interested in that idea!
Meanwhile, the Council keeps asking for more data.  There's plenty of data.  Plenty of positive examples.  Prominent local economists don't view raising the minimum wage as some disaster, but tend to think it's ultimate results would be positive for the local economy.

Where Is This Going?
Obviously I don't know.
I do not think that all four (Mayor Miyagishima and three councilors) will be so daft as to make major changes to the law, which resulted from an expression of popular will under the Charter.  That would lead not only to a lawsuit but to a situation that would spill over into all kinds of unrelated issues.  Essentially, the City Government would have acted so dishonestly, and so contrary to popular opinion, that it would be difficult for people of good will to trust or work with those folks. 
If even one of the four has a functioning conscience, the council will make no changes at all; and that's true also if the councilor who likely should recuse himself does so.
Most likely, the four will agree on what they consider to be some minor changes.  Create some exceptions for small businesses or even a specific type of business.  That would be technically improper and illegal, in my view, but whether minimum wage proponents would see it as worth suing over is another question.  In fact, CAFE and others might even agree with some minor tinkering of that sort.  (I understand that the ordinance, although it appears basically sound, could have the effect of helping chain bookstores in their competition with a local bookstore, Coas, which I very much like, and might help Starbuck's against Milagro's, whereas I much prefer the local coffee house.  If there's a constitutional way to avoid that, or a fair way to mute the effect, I'd be inclined to support it.  But I'm not CAFE.  Nor am I a minimum-wage worker.)
But changing the $10.10 or the time-frame would lead to disaster..

Sunday, October 12, 2014

Law and Fairness Require Adequate Funds for Defense of Indigents Accused of Crimes

I want to revisit the issue of adequate legal counsel for indigent defendants. Folks accused of crimes who can't pay for a competent defense.  (See “NM Must Provide Indigents a Fair Defense” from 4 May 2014.)

As I mentioned in the earlier column, defense lawyer Gary Mitchell filed in several cases a motion asking the judge either to order New Mexico either to fund a competent defense, as mandated by U.S. and State Constitutions, or to dismiss the case. Put up or shut up.

Now District Judge Karen A. Parsons, in an “Interim Order to Provide Adequate Counsel Posthaste,” has indeed ordered the State to provide funds for effective assistance of counsel for indigent defendants in the 12th Judicial District.

After hearing testimony (from, among others, local lawyer Michael Stout, who chairs the NM Public Defender Commission) and reviewing papers, Judge Parsons stated that “a crisis exists in the 12th District regarding appointment of counsel for defendants in criminal cases.” (The same crisis would appear to exist here in the 3rd J.D.) 

After reciting the relevant Constitutional provisions and the policy to appoint counsel within 48 hours of learning of a defendant's need, Judge Parsons ordered changes to address the “emergency situation leaving defendants unprotected from violations of their Constitution[al] right to counsel.” She ordered the Public Defender's Office to provide counsel by 11 October for defendants who were without counsel on 1 October – and to provide counsel within 48 hours of learning of any other indigent defendant's need.

I commend Mitchell for taking a bold step to confront the systemic injustice. I'm glad Judge Parsons acted.

But truly solving the problem will require our representatives in Santa Fe to act. I'd urge anyone talking to candidates to seek a commitment to support reasonable and effective action to ensure that funds will be available for defense of indigents accused of crimes. It's something law and conscience require us to do, despite other high-priority matters we hope the State will fund. 

Others may disagree. Others may figure that where there's smoke there's probably fire, so the folks getting accused of crimes probably did something wrong, or that people who can't fund their own defenses should have been more prudent and put away money just in case. That is, when we have our own houses to pay off and kids to feed and educate, who wants to ante up for strangers accused of crimes?

Because we are each that stranger. Each of us could be in that position. As the well-known phrase puts it, “There but for the Grace of God go I.” 

But more because we inherited the blessings of a country without a King, Emir, or dictator, but with a plethora of freedoms. A country that ain't perfect but has some pretty fine ideals, including freedom, fairness, equality, – and justice for all. 

It feels good to live in a country where we honor (and can afford) “justice for all.” It feels good to contribute my share. (I'm a lot more willing to contribute than I am to some of our government's other activities.)

I also understand, as a lawyer, why “justice for all” costs so much. Not lawyers' greed, but funds for investigators, discovery, witness interviews, legal research, motions, and possibly expert witnesses. 
Maybe one solution would be to limit prosecutor and defense counsel to, say, only six pretrial attorney hours and two investigator hours on a particular case, and equalize the two sides' resources that way; but that would hardly facilitate a meaningful search for the truth. 

That's why I'll be mentioning this issue to legislators and candidates this election season.
[The column above appeared in the Las Cruces Sun-News today, Sunday, 12 October.]
[I do urge everyone to include this issue among the ones you stress when talking to a candidate for election or re-election to represent us in Santa Fe.  Sadly, it may turn out that the division between opinions will mirror party lines.  It shouldn't.  This is an issue of basic fairness --  and of following the law.  Our system of government stresses the adversarial process in which champions -- like the knights of lore -- clash vigorously, using the factual, legal, and oratorical weapons at hand in a contest we suppose will reveal the truth.  (Another country might use a system in which a magistrate investigates matters fully, requiring witnesses to appear before him or her as needed, and reach a fair conclusion.)  For that to work, prosecutors, judges, and defense counsel all need adequate funding.  We've rightly concluded (and federal and state constitutions mandate) that where someone can't afford a defense we should fund that defense.  Doing so without adequate funding is as effective as having medicare supply poor retirees with a primer on healthy foods to cure cancer, while rich folks get radiation treatments or surgery.]
[Anyway: counsel such as Mitchell, who step in where there's no public defender or the public defender has a conflict of interest, should be paid fairly for the work; and the Public Defender's Office itself should be adequately funded.  The former prosecutor in the governor's chair should know all this as well as anyone, and we'd hope she too would support adequate funding.]

Sunday, October 5, 2014

On the New Women's Health Clinic

My new heroes – heroines, rather – are two high school girls who were sitting in a pizza place on Lohman, saw the folks protesting the not-yet-opened women's health clinic, and quickly made pro-choice signs and stood outside for hours countering the protest.

The women's health clinic should be welcomed. I'd defend to the death the rights of those who protest it; but I disagree. 

We should not refer to it as “an abortion clinic” because abortions represent a small portion of the services it will offer women who need them. But neither should anyone be ashamed to say that the place provides abortions, safely and legally. 

In part, I feel so strongly because the laws against abortion were a vestige of times and places where women were not full citizens. Key decisions about their lives were made by fathers, husbands, and even brothers – or by the State.

In larger part, I feel so strongly because I'm old enough to recall a time and place when abortions were illegal and some very ugly things happened to women and girls who needed or felt they needed abortions and could only get them on the black market.

Normally, an abortion in a hospital or clinic is medically simple and safe; and if there's some complication, it's quickly dealt with. 

Outlawing abortions means girls and women die in backrooms because they aren't prepared to raise a child. Carelessness, particularly during the hormonal madness that is youth for most of us, should not be a capital crime. (It isn't for men!)

As a white male, I'm privileged. Black youths as rebellious as I was tended to end up dead or in jail during my youth. I could experiment sexually, as is natural, with some potential consequences but none as devastating as what girls my age faced. I'm grateful – but without closing my eyes to others' realities.

I understand the repugnance some folks feel toward abortion. It's a heavy subject, deciding whether or not a potential human being shall come into existence. But it's not society's decision, legally or as a matter of fairness. Or if we apply the ideal of freedom we espouse so freely in this country.

I'd understand the anti-choice folks better if many of them didn't oppose birth control information and access to birth control, thus funneling so many lives into the abortion decision path at the same time they're trying to remove the “decision.” 

I'd understand their reverence for life better if many of them weren't loudly pro-death-penalty, and if others weren't displaying their lack of reverence for life by denying current climatological and environmental threats to life as we know it.

I'd understand their opposition to choice for women if the issue hadn't gotten sucked into a larger social controversy over the 1960's and society's role in individual morality. Some say “life is sacred!” and mean it; but others secretly mean “girls shouldn't fornicate, so let them be punished!”

All this is true even without listing the horribles: that anti-choice folks would make a girl bear and raise a child resulting from rape or incest, or a child with little chance at a rewarding life, or where childbirth poses special dangers to the woman's health. 

Having a child should be beautiful. The child should be wanted, and loved. Sadly, that's not always what happens. The advocates of outlawing abortion cannot or will not care for all the unwanted children, financially or emotionally. Even if they could, they shouldn't get to decide the fate of a mother's body.

Religions should not make our political decisions. Catholicism, Islam, and Buddhism offer much to believers, but shouldn't legislate for non-believers.

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 5 October. 
The first version was an account of a young relative's abortion back in the days when abortions were illegal.  That incident isn't why I think as I do on this issue, but it deepens my feelings on the subject.
I don't know that the column adds anything new to the debate, but since some folks in our community seem determined to make it an issue again, it seems worth reiterating that the law permits abortions, that there are good reasons it does so, and that as a matter of common sense and constitutional law, such matters should be up to a woman and her physician.  The freedom ideal we all cherish, whatever our day-today-political views, should protect women, particularly with regard to such an intimate subject as their own bodies.]

Monday, September 29, 2014

On Emails and Email Destruction

You'll have read that Amy Orlando, Governor Martinez's hand-picked successor, apparently destroyed emails, erased hard-drives, shredded documents, and tried to undermine successor D.A. Mark D'Antonio's ability to do his job.

Emails were destroyed despite Orlando's (emailed) acknowledgment that “Anything put on computers is property of the State.”

My question is, what's most appalling? Massive destruction of documents and erasure of backup tapes? The appearance that the office and its resources were used improperly to support political campaigns? (Some emails they couldn't destroy concern 2010 Martinez campaign logistics or issues.) Or one of the few emails they couldn't erase? (These are mostly sent emails, which are harder to destroy.)

Certainly the massive destruction matters. So does apparently lying about it. A reporter's IPRA request for emails was met by a claim that they weren't available because the email servers were “routinely cleaned”; but an IT person from the Martinez-Orlando era (supported by other IT folks) admits they were not “routinely cleaned.”

One email attempts to deny the DA's office money it could use prosecuting cases. Orlando asks how much of certain grant money will be left for the office after she leaves. She learns her office has spent about $ 400,000 for 120 cases, and that 70 more cases should yield $200,000 to $300,000. Orlando begs an underling not to let D'Antonio know how to obtain and use the grant money: “Don't leave ANY note about how to do it!! Please.” That suggests her priority isn't us, but her political interest and her childish resentment of D'Antonio. By trying to deny the DA's office grant money, does she mean that if she can't be the D.A., she's on the criminals' side??)

Another email says Martinez wants her inauguration event to be “no Mexican affair!!”

Need more? A financial specialist has to “forget” Martinez's signature on an affidavit related to a hotel bill; Orlando asks underlings to change who has access to her office calendar and lie about it; and (like something out of the East German film “The Lives of Others”) Martinez and Orlando apparently copied and read employees' emails.

Particularly interesting is the Saturday, November 6, 2010 email from Martinez headed “from: Amy Orlando” that starts: “This is Susana. I am sending this email from Amy's BB. I want to make something very clear to all of you. When Amy or Susan [Reidel] gives any of you instructions – they are approved by me. . . [Anyone who's dissatisfied should] call me directly.” That tends to confirm the widespread view that Martinez remained in control of the DA's Office after leaving for Santa Fe. She goes on to ream out employees for “frankly mean emails,” “mean gossip,” and spending too much time emailing and visiting each other's offices. “I hope I have made myself clear,” she closes.

(She's been elected Governor days earlier, yet is still micro-managing the DA's Office here.)

Interestingly, the same email reams people out for failing to decline the Sunland Park case, adding that she has long “known that there was little to no evidence to charge this case. . . There is no reason for this case to linger this long in the office.” What's interesting is that her protege, or some say puppet, soon ramped up an investigation of that case and announced a bunch of very public indictments. Why?

D'Antonio's office investigated the email issue after trying to respond to an IPRA Request for emails – and discovering that the emails had disappeared. D'Antonio did not open a criminal investigation, which could have been a conflict of interest, and he says any such proceedings would be up to the State Attorney General.
[Note: this column was published yesterday, Sunday, 28 September in the Las Cruces Sun-News.  Sorry not to post it here Sunday morning, as usual -- and not sure I can post copies of some of the emails, as I'd hoped to do.  May be able to add 'em soon.]

Sunday, September 21, 2014

I'm Voting for Beth Bardwell

I live in District 3, where the County Commission candidates are Beth Bardwell and Ben Rawson. Karen Perez ably represented us, but had to quit because her professional work situation changed.

This race presents a clear choice.

Bardwell is a lawyer who has worked for the City of Flagstaff and the Navajo Nation, and practiced labor law. After seven years as a lawyer, she went back to school at NMSU for a Masters of Science in Biology (1999). Since then she's been working to conserve freshwater and rivers in this area through water policy reform (at the local, state, and federal levels) and on-the-ground restoration work. She worked with EBID to create the state's first public-private partnership with the National Fish and Wildlife Foundation to develop a cooperative, market-based environmental water transaction program on the Rio Grande in southern New Mexico. She's also worked with Audubon and the World Wildlife Fund's Chihuahuan Desert Program.

Rawson, placed in his seat by Governor Susana Martinez, had limited relevant experience. Son of a conservative businessman and former State Representative, Rawson, 31, had been general manager of his father's company for ten years. His political experience before last August was limited to working as an intern during and after high school in N.M. Governor Gary Johnson's office and some work for Michigan Governor John Engler's office while Rawson was in school in Michigan. He has been a County Commissioner for a little more than a year.

I should to add that I like both candidates. If Rawson were facing a weaker Democratic candidate, I might vote for him. I have the impression that despite his lack of experience and the common belief that Martinez and his family had ambitions to see him in higher office, he's taking his work as Commissioner seriously. On less “political” issues, he's not hard to work with and he tries to collaborate in reaching consensual solutions.

But he's facing a superstar. Bardwell has extensive and very relevant experience. We're in a water crisis, and she knows water issues. She's spent 15 years trying to convince all sides to cooperate in finding mutually acceptable ways to conserve water and preserve a living environment. A law degree and legal experience aren't everything, but they ain't dog doo. And she has the kind of low-key personality that contributes to consensual solutions.

I'll post Sunday on my blog the answers each gave to a set of questions I asked. I won't discuss those here except to say that after Rawson mentioned that there was not yet a published budget, I asked about that. Another commissioner said Rawson didn't understand the process, because the budget doesn't get published until it's approved. The same commissioner said Rawson had been kind of an obstructionist on some issues.

Bardwell has been doing for decades the kinds of things a good commissioner might do: dealing with public issues, often issues in which citizens or companies have conflicting but legitimate interests, and finding the best result for the public.

Rawson has undoubtedly learned some business skills. Running the business, he's presumably learned something about making a profit. As a Commissioner he has focused largely on infrastructure and on budget issues, both of which are important. From what I've seen of him at public meetings and in private discussions, he's friendly, has a sense of humor, and seems to listen.

In short, both candidates seem personable and well-intentioned; both seem friendly, and concerned about constituents' needs; but Bardwell's politics appear more appealing to the majority of their would-be constituents, and she has an admirable wealth of experience and hard-earned wisdom we'd be foolish not to make use of.

[The foregoing column appeared in the Las Cruces Sun-News today, Sunday, 21 September.  It states myopinion.  In my view, Ms. Bardwell has incredibly valuable experience, and I also agree with her more generally on political issues.]
[I also wanted to offer side-by-side answers by the Rawson and Bardwell, without editorializing, to a few specific questions I thought might bring out their differences. Below, I've quoted their answers as accurately as possible.

As briefly as you can, why should a resident of District 3 vote for you?
[Ben Rawson:] I provide a needed balance on the commission. I am excited to be serving the residents there. I see government as service. That means responding when people call. I also like working on projects and getting them done. I know what it takes to run a business. I was born and raised here, and have my kids here, and want it to be a better area for them to stay in, hopefully.
[Beth Bardwell:] I think I have a breadth of experience and skills that lends itself well to local government. And my values and philosophy – I'm interested in social equity, fairness, and opportunity – Professionalism in government and transparency.

What's a telling fact about your opponent that should give a voter pause for thought?
R: I'm probably going to stay away from that one. The only thing that I would say is that I believe we already have her perspective well-represented on the Commission. I don't see any big character flaws that would cause someone not to vote for her.
B: I think that his unwillingness to meet his fellow commissioners half-way, or find common ground with the other commissioners, concerns me, because at the end of the day all you can do is what you can agree with fellow commissioners on.

What's a key question a reporter should ask your opponent?

Rawson Q: What different perspective would you bring to the Commission? I think it should represent all segments of the community.
Bardwell A: What I bring is, I'm very thoughtful and balanced. I'm willing to do the homework and gather input from a diverse set of stakeholders, and based on that try to find a path forward. Regarding the second point, having ideological viewpoints is less urgent than finding common ground, being pragmatic, and moving forward.

Bardwell Q: You talk about the increase in overall budget and the importance of budget oversight. What departments, services, or other costs to you want to cut? Or, what has the Commission done during the past year that you felt was not fiscally responsible/?
Rawson A: We've gone 24 million we're spending this year that we're not bringing in. We passed a budget last month, without seeing it. I'm the only one who voted against it. We still can't see it. There's something wrong with that.
I'd also say we're doing a lot of studies where there's an earlier study that's maybe three years old. We should be implementing the first study, not doing a new one already.

You've been a County Commissioner for a year: looking specifically at your record during that year, what in that record would you say particularly recommends you to a District 3 voter? [asked only of Commissioner Rawson:]
The Foreign Trade Zone, which used to be just Santa Theresa and the West Mesa. The FTZ allows manufacturers to come in and not have all the usual costs and fees on pieces of the product they're going to make. They still have state fees, but not the federal fees.

What would you say is the most serious issue the County faces right now – and how should we deal with it?
R: I'm going to mention two.
First of all, jobs and the economy are something we have to focuson. Looking at the City of Las Cruces last year, there were 200 new jobs. With all the high school graduates we have, there are no jobs, and they have to go somewhere else. We need a change of mind-set. I'll give you an example. Near the new Union Pacific tracks, there's a company that wanted to store train cars till they're ready to go on a truck. Staff turned them down because staff wanteed 30% of the area landscaped, because it was parking lot. It's out in the desert, and there's a water scarcity such that it doesn't make sense to water things. So, yes, that's what the book says, but . . .
Secondly, infrastructure. It's not as sexy as building something new; but we have roads and dams deteriorating, and we have to get a handle on that. Anyone in business knows that proper maintenance will save you a lot of money in the long run. We have dams deteriorating, and have to prevent things from occurring such as the floods in Vado.
B: There are a lot. And the problems are complex. If they were simple solutions, we'd have figured them out by now. But the leading problem is poverty in the County.

What should the minimum wage be in this county, and why?
R: Well, not trying to duck the question but I think that should be dealt with on the federal level. The City may go to $10.10. Suppose the County did the same. Then there'd be cities, such as Anthony, where it'd be different on opposite sides of a street. If it were national, or even if El Paso was also on board, it wouldn't be so bad. I will say that I don't think the $10.10 will impact local businesses here the way some have said in the media.
At the same time, the County would have problems. There are three levels of park techs under $10.10; so if you want to keep three levels, two have to go up to even more than $10.10 right away.
B: If the County could set up a ballot measure, that'd be best. It's important that we provide our residents with a liveable wage. There's lots of evidence that increasing the minimum wage is an effective way to decrease poverty and at the same time benefit the economy. It tends to rais employee performance, which helps offset the increased expense to a business. I understand small business's concerns, but I believe that raising thw minimum is right.
Now, if the city raises the minimum wage, the County should follow suit.

[Note: With the following questions, I specifically asked each candidate for a very brief answer – yes or no, then why or why not in a sentence or at most two. For the most part they complied; and if their answers seem simplistic of brief, please blame me not them.]

New Organ Mts. / Desert Peaks National Monument: good or bad for us?
R: Neutral. Our one challenge is dam maintenance. We need to work with them on the rules and regulations to make sure we can still get up there to work on those.
B: Good for us – it puts us on the map, valuing and prottecting our valuable resources and unique landmarks. I do believe it will increase tourism and bring in additional revenue for the County without impacting land use by ranchers.

Our water problem: how serious is it and what can county commission do about it?
R: It's getting more and more serious. Probably the best help is a desalinization plant at Santa Theresa, although that could be more a CRUA issue than a County issue.
B: Over the long term, it's very serious. The County Commission can provide leadership in identifying strategies and opportunities to secure a sustainable supply, whether through a desalinization plant for Santa Theresa and the border area or looking at our growth patterns and how we can reduce our water footprint.

Public Transportation and related GRT vote?
R: Well, we have a pilot project going through the end of December; and with a pilot project, that's to determine what the need is and how to fill it. Therefore I think the GRT increase is premature. I mean, if we're getting 1,000 a month passengers, that's about 30 per day. Maybe we should just hire three taxi drivers each day. What I mean is, we need to have a closer idea of the actual need.
B: I support it. I believe that it is a strategic investment in the county – integrated regional transit system will revitalize rural communities, attract new industry, and be a powerful economic engine for the County.

Capping interest rates: yes or no? Why or why not? If so, at what level?
R: I voted in favor of that. We're capping interest rate and fees. It would be better just to cap the interets rate and allow a fee on top of that for small, short-term loans. For example, if someone borrows $200 for four months. That means the company makes only $6 profit for making the loan. The 36% sounds high, but it isn't when you break it down.
B: I support it. I agree with the current proposal to ask the State Legislature to cap it at 36%. It'll help keep local low-income families stay afloat, and put more dollars in the local economy.

What Lynn Ellins did regarding marriage? What the New Mexico Supreme Court did?
R: Very bad. Not because of the marriage issue, but because of how he did it. We're a county of laws. He chose to stop following the law the way his predecessor had done and numerous county clerks around the state were. Then what about the NM Supreme Court? Neither good nor bad. We're there.They had the right. Personally I'm a little disappointed in the outcome, but I recognize that that's the direction the country wants to go on, and that's ok with me.
B: I support it. It's important to address inequality at any level of government, and that was a courageous act, and resulted in the very first shift in the state's views and laws on entitlement to marriage - - and who's entitled to declare their love for someone else through the act of marriage.

Tell me some political figure or philosopher from the past whom you feel is underrated. Not Washington or Lincoln, but someone who's maybe overlooked, who doesn't get as much attention from us as he or she should?
R: In the political world, we all have our ideas, but we still have to work together. I'd say Mark Twain, because he was very witty, he gave thought-out responses, and he injected some humor. Sometimes we get so serious that we forget to work with each other. So Mark Twain, and also the baseball player, Yogi Berra. They both kept the humor in things and worked well with other people.
B: Jimmy Carter. I think he was maligned and put in the back quarters of history as being a poor president, but in my opinion he was trying early on to deal with some issues we're grappling with today, such as energy efficiency. He was focused early on the right issues.

Sunday, September 14, 2014

County Treasurer Davd Gutierrez Must Resign

Although I was tempted to write this week about the Las Cruces City Council's strange conduct Monday, it's also important to discuss the situation of our elected County Treasurer, David Gutierrez.

The facts seem simple: Gutierrez has admitted he solicited sex from a female employee while they were in a car traveling on county business. He admitted he'd said what he'd said and that he'd meant it. (That's to his credit – unless the lady was wearing a wire.)

There's also significant evidence that this was no one-time error in judgment. His alleged harassment of the same victim was reported in January to HR Director Deborah Weir and County Counsel John Caldwell. I didn't see the evidence, don't know what investigating they did, and can't judge them. One employee said, “she wouldn't have had to go through this if they'd done their jobs.” (On the other hand, maybe they did, somewhat slowly, and this was the result.)

Gutierrez must resign. He's an embarrassment to the County and himself, and to his party, community, and family.

We must force him to resign. While he may wish to keep receiving a handsome salary from us, remaining in his position could cost him heavily in fees fighting a possible recall effort and perhaps criminal charges.

A crime? I'm no criminal law specialist, but solicitation of sex-for-money is a crime in most states. Where he's already admitted it, the facts should be easy to prove, but a quick look at New Mexico statutes leaves me doubtful that those facts fall within the specific language of relevant statutes. (For example, “criminal solicitation” must be solicitation of a felony; and one sub-paragraph of the law on “promoting prostitution” looks as if it would apply only if she'd taken his suggestion.)

Democrats should get off our tails and actively encourage him to retire, even if the sitting governor gets to appoint his replacement. This transcends politics. (Although his conduct had nothing to do with his party affiliation, he happens to be a Democrat.)

I attended the annual Labor Day Breakfast about honoring labor, and heard all folks said there about honoring labor, as Democrats have traditionally done. Here, a man abused his power at the expense of workers he supervised.

I called to invite Mr. Gutierrez to tell me of any extenuating circumstances. I received a long email saying the public accounts were “not contextually thorough” and asked that people forgo quick judgments and extend “compassion and forgiveness.” He didn't offer to fill me in on the context, but said the incident wouldn't affect his job performance.

Gutierrez, as an elected county official, is automatically on the Democratic Central Committee. I believe County Democrats should formally consider (1) terminating his Central Committee membership and (2) censuring him and urging him to resign. Democratic County Chairwoman Christy French has convened the Judicial Council to discuss these issues soon. Gutierrez will have the opportunity to explain his side of things.

New Mexico's Constitution directs that 200 valid signatures on a petition can get a grand jury called to look into an alleged crime or official misconduct. (So can a judge, if s/he deems it necessary.) If no officials plan to act, perhaps citizens should. (Recall is cumbersome, and costly to the public.) Somewhere along the way Mr. Gutierrez will likely realize that the longer he fights, the less he retains citizens' respect or affection.

He needs to resign. I suspect he also needs to seek treatment from a qualified professional sooner rather than later, and (unless he plans to leave the County) begin the painstaking task of rebuilding some hint of community trust and respect for him.

The above column appeared in the Las Cruces Sun-News today, Sunday, 14 September, 2014

The column mentions recall.
Under New Mexico law, to recall him takes signatures equal to 1/3 the number of votes cast in November 2012, when he was re-elected. Unfortunately, that was a Presidential Election year, with a larger turnout than most years.  The people could surely do so, but at significant effort, and the resulting special election could prove costly.  Thus it should be undertaken only as a last resort.

County Democratic Party:
On 10 September, Ms. French wrote to the Judicial Council, the appropriate body to hear the case, petitioning it to meet soon concerning Mr. Gutierrez.  In part, she wrote:
Understand that I do not bring this petition lightly, but under the circumstances, I feel it is the right thing to do and it is necessary for the Democratic Party of Dona Ana County to show the voting public that we do not condone this type of behavior.  In addition to removing Mr. Gutierrez as an officer from the County Central Committee, I am asking the Judicial Council to formally censure Mr. Gutierrez and ask that he resign his office.

Did County Officials Hear about the Problem Earlier?
I've been told "Yes, definitely", first-hand, by someone who says it was discussed at a meeting within the County's HR Department -- and that HR Director Deb Weir voiced an intention to discuss the matter with County Attorney John Caldwell.
The County says "No, definitely."  It took me a while to get a comment, but the comment (after deadline for the column) was a definite "No", that no one reported to HR back in January that there was a problem with  Mr. Gutierrez's conduct toward women, or toward this particular woman.  
A couple of people had criticized Weir and Caldwell for inaction.  I wondered if maybe they'd taken some action, or at least investigated, but apparently not.

Seeking Comment from Mr. Gutierrez:
The column mentions my invitation to Mr. Gutierrez to comment.  I phoned and left him a message.  He responded by email, from which the column quotes.  It seems fair and appropriate to publish the full email, though it wouldn't have fit in the column.   Below are the email I received and my reply.  So far, I've heard nothing further.
(Of course, Mr. Gutierrez will also be invited to tell his story to the county Democratic Party -- and presumably could do so to the Las Cruces Sun-News or to KRWG-TV.)

David Gutierrez <>

Sep 8 (2 days ago)

to me
Mr. Goodman, I did receive your voicemail message, and I appreciate that you are reaching out to me for my side of the story. As you can well imagine this is a difficult and painful time for me and my family. After 18 years of dedicated public service in various roles for both Mesilla and Dona Ana County, my reputation has suddenly been pinned on a conversation that lasted less than two minutes. The picture painted by the official investigative report and discussed publicly on Aug. 29 is not contextually thorough, and I believe it unfairly portrays me, my words and the aftermath of the original conversation. What happened is regrettable, but it does not affect my ability to act in the best interests of either my office, my fine staff or the taxpaying residents of Dona Ana County. I am hopeful that all those who would judge me based on that two minute window of time would show some compassion and forgiveness during this difficult time, realizing that none of us is perfect and those of us who live in the fish bowl of public service are scrutinized in ways most people cannot imagine. There is always more than meets the eye, which is very much true in this case. Thank you again for the opportunity to state my side of the issue.

David Gutierrez
Dona Ana County Treasurer
845 N. Motel Blvd.
Las Cruces, NM 88007

Peter Goodman <>

Sep 9 (1 day ago)

to David
Mr. Gutierrez -
Thanks for your reply, but it left me unclear: do you want to talk about your side of this, or extenuating circumstances, or leave the record where it lies?   If what we've heard may be inaccurate, I'd like to hear your view on that before I write a column or otherwise act.
I do wish to hear your side; but your email doesn't tell me your side, but just says you have one, which I'd figured was likely.  I do recognize that you've provided valuable service to the community; but public / political positions are what they are, and there are good reasons folks may not extend the kind of forgiveness/patience/compassion and avoidance of judgment that they/we would do with a private person acting as an individual.
Certainly my initial view of this, to be frank, is that you should resign, but that you deserve every kind of consideration, compassion, and assistance as an individual and one who's served the community for some time.   That's my initial view, based on what I know now..  I'm open to argument, or to learning new facts.
Please feel free to email or call me -- 521-0424 or (510) 282-6690.

Sunday, September 7, 2014

thoughts on a constitution

Antonin Scalia is the U.S. Supreme Court's most passionate proponent of “originalism.” He's used the concept to harm the country significantly during the past two decades.

“Originalism” says that in close Constitutional cases you look to what the Constitution's framers knew and wrote in the 18th Century.

Like most doctrines, the justices use it when it's convenient but ignore it when it's not.

The opposite view is that some pretty thoughtful men created a living constitution that could grow with our country.

I found a neat articulation of that in a nearly century-old article in the Catholic Charities Review.

The 1910's were progressive times. Woodrow Wilson had avoided some federal legislative proposals by arguing they were illegal or should be decided by the states; but by 1915, looking at the 1916 election and Theodore Roosevelt's return to the Republican Party, he loosened up a bit.

A new law prevented kids under 14 from being employed in industry or at night or longer than eight hours a day. With hazardous occupations, the minimum age was 16.

But was this constitutional? Weren't laws on working conditions a matter for the states? (Many states had enacted such laws, but some southern states hadn't.)

Article I, Section 8 empowered Congress to “regulate commerce among the several States.”
Therefore, as the Catholic Charities Review noted, “the new Federal law simply prohibits any establishment that employes children in conditions contrary to the standards set up in the law, from shipping its products in interstate commerce. . . . [T]he law seeks to abolish child labor by making it unprofitable.”

The writer called it “a nice constitutional question” and anticipated a court challenge. He conceded, “In the minds of the men who wrote the Constitution there was probably no intention of enabling Congress to exercise any such power as is contemplated by the law that we are considering.
Nevertheless, this would not be the first instance in which the language of the Constitution has been interpreted to mean more than the Fathers intended it to include.”

He added that with a Constitution so difficult to amend formally, such methods were essential. “Otherwise, our social and industrial life would be strangled by a Constitution that was made to fit the conditions of the eighteenth century.”

It's an ugly but unarguable fact that naked capitalism is pretty brutal. It's too eager to use up men, women, and children, then toss 'em on the slag heap when they can't work anymore, and its indifferent to our air, water, land, and climate.

Our founders were preoccupied with the evils they knew, such as monarchies. They never imagined industries huge enough to poison our world and international corporations more powerful than governments. Should we reject necessary reforms and humanitarian legislation based on their failure of imagination?

A fairer sort of originalism would ask, “What would Jefferson have done?” Ask not whether Jefferson intended to outlaw something he'd never seen. Ask whether the man who wrote that each of us had a right to “life, liberty, and the pursuit of happiness” would have wanted our Constitution used to let 13-year-old kids be worked 15 hours a day instead of going to school. Ask whether the man who sent Lewis & Clark to explore our beautiful country would have wanted us to let huge corporations destroy it because he hadn't conceived of them during his simpler times.

I understand the argument that this second sort of originalism is inherently subjective; but at bottom, so is Scalia's kind.

The current court's desire to strangle us with extremely narrow interpretations of our Constitution may exemplify why Jefferson suggested there ought to be a revolution every ten or twenty years.
 [The column above appeared in the Las Cruces Sun-News today, Sunday, 7 September 2014.]