Sunday, December 7, 2014

Three Questions about the Minimum-Wage Hike

Monday, the Las Cruces City Council voted to delay minimum-wage hikes set by the petition-initiated ordinance. People keep asking me:

Was the City Council's action legal?

No, in my view; but it might survive a challenge.

The Council must follow the City Charter. The Charter requires the Council to put the petition-initiated ordinance to a citywide vote or pass it unchanged. Council technically did that, but with some councilors giggling about gutting it immediately – which they then did. Unfortunately, since its draftspersons likely assumed Council would follow the law, the Charter lacks a further paragraph specifying what happens in this situation.

Obviously the provision meant for Council to enact the ordinance and not tinker with it unless and until changed circumstances made that expedient.

City would argue that the Charter's omission of additional language was intentional. City lawyers would explain to a judge (ideally with a straight face) that the Charter authorized the time-consuming initiative procedure but intended it to mean no more than some note dropped in a suggestion box.

Would that argument fly? Probably not. Judges faced with absurdities or inequities frequently “imply” provisions to uphold legislative intent or the intention of parties to a contract.

Secondarily, one councilor's wife gets paid to lobby for a restaurant group that violently opposes the minimum-wage; under the Government Conduct Act, that's the same as if he voted against something he himself got paid to fight tooth and nail. (If he voted primarily for his personal financial reasons, that'd be a felony; but I prefer to assume he didn't.) He should have recused himself, probably because of the “direct financial interest” and certainly to avoid the strong appearance of impropriety.
The Council's best argument would be that there's no “direct financial interest” because (presumably) the wife's contract doesn't specify that her compensation and job longevity could be affected by success or failure – or by a wrong vote by her husband. Gotta say that if I were party to a trial and the judge's husband worked for my adversary, I'd be uncomfortable.

But lawsuits are costly and time-consuming.

Why did Nathan Small change his mind?

Only Nathan knows – if even he knows for sure. Judging from her appearance before the Council, Marcy Dickerson must hold some sort of world speed record for talking. Maybe Nathan was mesmerized.

Yes, the business community had announced a despicable effort to recall him and two others. Nathan denies that was a motivating factor. I'd like to believe him. I did believe him, listening to him one-on-one last Sunday.

He said it was important to make this compromise with some businesspeople now. He sounded sincere; but when I pointed out various reasons it would be better to “compromise” during the scheduled review in 2015, he smiled and nodded. I never heard a compelling reason to ignore a majority of citizens, and perhaps the law. He talked about certainty (which we don't have with the possibility of a lawsuit and the probability of a new initiative effort) and civil discourse (which business interests have pretty much sabotaged with the recall effort). I never did quite understand, though I like and respect Nathan. Maybe I hadn't had enough coffee.

What happens now?

Paid hacks will push the recall, trampling over our sense of community. They'll say and do whatever it takes. They'll even try to hide the obvious truth, that the recall was triggered primarily by the minimum wage hike, behind vague, misleading, or flatly false accusations of malfeasance. Business-owners backing the recall will take our money and spend it shamefully. Witness the slick billboards going up.

The real movers and shakers cringe in the shadows.

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 7 December.]

[Random observations from Monday's council meeting:
1. There were some extremely moving words spoken by people getting minimum wage, but also some strong statements by business owners and managers.  Editing a highlight reel of the evening would create a fairly interesting window into the community.  One answer to the business-owners "Sky Is Falling!" message came from a gentleman who'd been a hospital executive most of his career.  About a dozen times there'd been pay raises.  Discussing those, hospital managers and even nuns expressed concerns about the impact on the quality of care and on the hospital's ability to survive.  On none of those occasions, he said, was the effect of the pay raises more than minimal."
2. One interesting moment was the very start of the discussion, when Mayor Ken Miyagashima described the moment that he first "got it" about raising the minimum wage.  
There's a school program, or extra-curricular course, called "Personal Financial Literacy" in which kids learn some adult realities involving dollars and sense.  (pun intended)  Miyagashima complimented Stan Rounds and the school system on it, though perhaps mostly because it taught kids they should get life insurance.
One evening Miyagashima worked with his kid on a problem, looking at the possible household budget of a woman with two or three kids making minimum wage.  The wage . . . added up to about $1,000 per hour.  The best they could do on an apartment for their hypothetical family was $650 per month.  (Ouch!)  They figured a car, car insurance, and utilities would eat up another $_____, leaving about $ per month for food.  Obviously inadequate.  What to do?  Better get another job, Ken's kid suggested -- so they were looking at an 80-hour work week, barely seeing the kids, etc.  
"That's when I got it," Ken said.]

[Sorry if the paragraph about Nathan Small doesn't quite cut it.  It's difficult.  I like and respect Nathan.  Even at the council meeting Monday, although he pushed his "compromise" he resisted invitations by Ceil Levatino, Miguel Silva, and Greg Smith to water down the ordinance any further, by stretching out the deadlines further, delaying the initial phase six months, and decreasing the amounts tipped workers would get.  I also appreciate his efforts to discuss the matter with his constituents Sunday (even if he didn't take the advice he got from the vast majority of them) and to explain why he'd changed his view (even if I wasn't quite swift enough to follow the explanation).  He treats people with courtesy and what seems to be genuine respect.)]

[I wrote the above column the morning after the council meeting.  How did the rest of the week affect my answers to the three questions?
1.The Council's action was probably illegal.  I'm a little more convinced of that then ever; but I don't foresee it being tested.
2. I'm further convinced that Councilor Small's motives in changing his mind were honest, if misguided.  Wednesday I found myself wondering: if we could go back to December 2013, when 
CAFé announced this campaign, and someone had told leaders of CAFé "Hey, without all the work and uncertainty, we could agree now to a deal in which the wage goes to $8.40 in January 2015, then $9.20 in January 2017, then $10.10 in January 2019, would they have taken it?  I wasn't involved and don't know; but if someone had forged this compromise earlier, it wouldn't have been unreasonable, in my uneducated view.  I wish business leaders had been willing to participate in meaningful discussions at that time.
3. But then, I wish they they weren't on a rampage, like kids destroying their playpen, with this recall thing.   Not surprisingly, it's getting pretty silly -- particularly with calling 80-some year-old writer of letters to the editor "thugs."  Really, Jeff?  The Recallers, paid hacks and craven bosses, are beginning to perform as expected.   I have confidence that citizens will reject the effort, but we need to take it seriously, because there'll be ample money behind it.]

1 comment:

  1. A shorter form of my comment below: if Mayor Miyagishima and the six Councilors had simply approved putting the initiative on the ballot, they would not have prompted a recall, enabled the purveyors and supporters of smear, and discredited democracy and civility in Las Cruces.

    It puzzles me why you conceal the fact that Greg Smith is the councilor with the real and apparent conflict of interest. Clearly, he prefers public disgrace to pubic deprivation.