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effectively repealed the earlier.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.
-30-
[
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
10-16-3
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..
