Sunday, November 2, 2014

Update: Minimum Wage Machinations in Las Cruces

I suppose I should be grateful that Mayor Ken Miyagashima engineered a compromise in which the City Council won't immediately eviscerate the petition-mandated ordinance it enacted to raise the minimum wage.

But I'm still troubled.

I'm troubled by a City Councilor who says she canceled her newspaper subscription when she got elected, so as not to be influenced. This attitude reminds me of certain religious proselytizers who used to stop and chat while I gardened. They frequently recommended books to me, but when I once recommended one to them, they replied, “Oh, no. We already know the truth.”

If I were a City Councilor I'd be interested in what others had to say, particularly others whose views I didn't generally share. I'd scan “Sound Off” daily.

I'm troubled by a City Councilor who takes very questionable positions and, when questioned, doesn't respond to the substance of the question but complains he's being threatened and cloaks himself in inspirational quotations.

Does it bother you that you're the major advocate for violating the City Charter to mute the minimum wage hike, when your wife's job is to lobby government officials for the Restaurant Association, which desperately wants to keep the minimum wage down? 
“George Washington said, 'It's better to be alone than in bad company.'”

I think the councilor drew the distinction that his wife lobbied state legislators – and presumably had nothing to do with her employer's op-ed against the minimum wage hike here. Then it surfaced that his wife had been leading a petition drive in Albuquerque regarding tipped wages. So maybe municipalities are part of her job description.

“My only regret is that I have only one life to lose for my country.” (No, he didn't say that. Yet.) I still think he's sincere, though misguided. In his place I'd have a hard time maintaining objectivity, though from uxoriousness, not financial interest. I'd also recognize that voting on a healthy-food issue would undermine public trust.

It troubles me that when a councilor asked if the council might get sued for violating the City Charter, the City Attorney blandly assured him “No.”

Charter says “If there are enough petition signatures, enact the ordinance unchanged or let the people vote.” Councilors, acknowledging a popular majority would vote “Yes”, enacted the ordinance – while laughing up their sleeves about eviscerating it next week.

That Charter language sounds pretty mandatory. But it doesn't say explicitly that we can't immediately repeal the ordinance the people lawfully ordered us to enact.

But does the Charter provision mean anything? It's a way people can bring something to the Council's attention so the Council can use its discretion.

Gathering thousands of signatures seems excessive, for just that. And why does the Charter provision start, “The people shall have the power . . .”?

Arguing the City's position in court might work. Might. But the City Attorney dismisses casually the possibility that a neutral judge might notice how completely the City's action violated the spirit and intent of the Charter, note that even while enacting it the councilors were giggling about repealing, and order some remedy.

Do we want that kind of legal advice for Las Cruces, the kind that ignores serious risk to tell the majority what it wants to hear?

Does Las Cruces want that kind of publicity? A dozen minimum-wage workers suing a council that's playing tricks on its citizens and trying to slither through a possible loophole?

I am grateful to Miyagashima that we may not have to test conflicting legal views in the courts.
But in the long run, he did the anti-$10.10 camp the best favor it could have asked for.

[The column above appeared in the Las Cruces Sun-News today, Sunday, 2 November.]
[After I'd written this column, I finally managed to speak with City Attorney Pete Connelly.  The conversation was courteous on both sides, but distinctly unilluminating.  I noted I'd heard him answer "No" to the question about whether the City would get sued for violating the City Charter if the counselor's eviscerated the ordinance.  He confirmed that his view was that the Council had the authority to repeal the ordinance.  I asked him what, if that were so, the City Charter provision meant.  He said the City Charter was very clear that the petition-mandated activity was finished once the council enacted the ordinance, leaving the Council free to do as it wished.  I noted that gathering signatures, etc., was a lot of work, and asked whether he supposed anyone would put the provision in the Charter and not intend that the ordinance survive more than a few days.  (I referred to "getting six million signatures, and he got kind of stuck on that, repeating it two or three times in a questioning tone, so I changed my phrasing to "a bunch of signatures" or something, but I still didn't get a meaningful answer.) He told me he hadn't written the Charter.  I told him I disagreed, and thought the City would likely have gotten sued if it immediately repealed the ordinance -- and that the case would be an interesting one, not the slam-dunk for the city that he purported to believe it would be; and I asked him to imagine I argued that the charter provision would be rendered meaningless by his interpretation, and asked what he'd say on the subject if pressed by a judge.  He reiterated that in his view the City Council had the authority to repeal the ordinance if it wanted to.  Recognizing the futility of further questioning, I urged him to have a nice day, and he reciprocated.
Don't assume he hasn't anything to say.  He may be playing it close to the vest, in case the council does end up eviscerating the ordinance and  someone does sue.  He may just not like me very much, a feeling I suspect is growing common in city government just about now.  He may have been in a hurry to go home, as it was nearly 5.  He may think I might end up as a lawyer adverse to the City in this mess. Or he may realize he doesn't have a very good argument on that point.  
His view would ignore the spirit and clear intent of the Charter provision.  It would render the procedure outlined by the Charter meaningless, a nullity.
He could still argue that even so a court should not act to do justice, because of practicalities and because the minimum wage issue is political.]
[The work session on 27 October was interesting.   The councilors made a spirited defense of themselves against charges they had conspired.  I don't know that they did conspire.  I've tried to avoid making unwarranted accusations.  But they just don't get the part about a breach of the people's trust.  I'd love to hear one of them explain coherently why they have the right to ignore the intent of the City Charter.  Their legal argument is based on the apparent fact that no one thought to explicitly state the obvious.  That could win or lose in court.  But their argument that immediately repealing or eviscerating the ordinance would reasonably strike most citizens ad a breach of trust?  I haven't heard much argument, except that they were elected to use their discretion -- which is exactly what the City Charter forbade them to do in this situation.]

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